text:
    570 A.2d 574
    David K. HILL, Appellee, v. NATIONWIDE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 16, 1989.
    Filed Feb. 28, 1990.

      James F. Wiley, Media, for appellant.
    Carroll G. Wille, West Chester, for appellee.
    Before WIEAND, BECK and MONTGOMERY, JJ.
   BECK, Judge:

This appeal raises the question of whether the Motor Vehicle Financial Responsibility Law (MVFRL) provides an adequate and complete statutory remedy that precludes equity jurisdiction in an action by an insured against, his insurer for first-party medical benefits to cover ongoing treatment. We conclude that in this situation, the MVFRL does not preclude equity jurisdiction.

This is an appeal from a final decree in equity directing appellant, Nationwide Insurance Company (Nationwide), to pay to appellee, David Hill, past and future medical benefits in connection with an automobile accident, as well as interest and attorney’s fees incurred in connection with the action.

Hill was injured in an automobile accident in July, 1985. Nationwide paid first party benefits due under Hill’s Nationwide policy until July 7, 1986, at which time Nationwide requested that Hill submit to medical examinations by doctors selected by Nationwide. Based upon the reports of those physicians, Nationwide terminated payment of benefits to Hill effective September 25, 1986.

Hill filed a complaint in equity requesting entry of an order requiring payment of future reasonable and necessary medical expenses incurred as a result of the accident and seeking payment of his outstanding medical bills, interest, and attorney’s fees. Counsel for Nationwide moved that the matter be transferred to the law side of the court because the case was controlled by the MVFRL which, according to Nationwide, provided an adequate statutory remedy and precluded equity jurisdiction. This motion was denied and the matter proceeded in equity. A decree was entered in favor of Hill. The decree directed:

Nationwide Insurance Company shall continue to pay medical and medically related bills to David K. Hill as shall be submitted to Nationwide Insurance Company for payment until further Order of this Court, subject to policy limitations as to amount of insurance coverage. The Court shall direct independent medical examinations both of an orthopedic and psychiatric nature, said examiners to be appointed by the Court, at intervals of no less than six months, or for a shorter time on petition of a party and for good cause shown, to determine the need for continued medical and/or psychiatric or psychologic treatment for David K. Hill. Based upon the reports of said examinations, this Court may modify this Decree ...

The decree also ordered Nationwide to pay Hill’s outstanding medical bills and interest thereon at a rate of 12% per annum, as provided by the MVFRL. Lastly, the court found that Nationwide had acted in bad faith in refusing to pay further benefits and awarded attorney’s fees to Hill. This timely appeal followed.

Nationwide contends: (1) that the trial court lacked jurisdiction to hear the case in equity because an adequate statutory remedy exists under the MVFRL; and (2) that the trial court erred in awarding Hill attorney’s fees.

I. Equity Jurisdiction

Nationwide is correct in noting the general proposition that where a remedy is provided by statute, the jurisdiction of a court of equity cannot be invoked because there is an adequate remedy at law. Peitzman v. Seidman, 285 Pa.Super. 228, 231, 427 A.2d 196, 198 (1981). “Generally, where the legislature provides a statutory remedy which is mandatory and exclusive, equity is without power to act, and a jurisdictional question is presented.” DeLuca v. Buckeye Coal Co., 463 Pa. 513, 519, 345 A.2d 637, 640 (1975). However, it has also been recognized that a “court of equity has the power to afford relief despite the existence of a legal remedy when, from the nature and complications of a given case, justice can best be reached by means of equity’s flexible machinery.” Peitzman, 285 Pa. Super. at 234 n. 4, 427 A.2d at 199 n. 4. This proposition is equally true where the legal remedy is provided by statute. Id; Pennsylvania State Chamber of Commerce v. Torquato, 386 Pa. 306, 125 A.2d 755 (1956), cert. denied sub nom. Bowman v. Pennsylvania State Chamber of Commerce, 352 U.S. 1024, 77 S.Ct. 589, 1 L.Ed.2d 596 (1957). As the Torquato court noted:

“To induce equity to refuse its aid to a suitor, it is not sufficient that he may have some remedy at law. An existing remedy at law to induce equity to decline the exercise of its jurisdiction in favor of a suitor must be an adequate and complete one. And when from the nature and complications of a given case, its justice can best be reached, by means of the flexible machinery of a court of equity, in short where a full, perfect and complete remedy cannot be afforded at law, equity extends its jurisdiction in furtherance of justice.”
Equity likewise has jurisdiction to protect by injunction or appropriate remedy (a) property rights, and (b) personal rights “where a multiplicity of suits may be prevented or where a fundamental question of legal right is involved,” and where the interests of justice require equitable relief.

Id., 386 Pa. at 329, 125 A.2d at 766 (emphasis supplied) (citations omitted).

Thus, to determine whether equity jurisdiction is proper in the face of an existing legal or statutory remedy, we must determine if the legal or statutory remedy available to the plaintiff is adequate and complete. And such a remedy is clearly not adequate and complete where, because of the continuing nature of the plaintiff’s injury, the plaintiff would be required to bring a succession of legal actions. Id.; See also Luitweiler v. Northchester Corporation, 456 Pa. 530, 319 A.2d 899 (1974); Northeast Women’s Center, Inc. v. McMonagle, 665 F.Supp. 1147, 1153 (E.D.Pa.1987).

Cases in which the court has found no equity jurisdiction involved statutes that clearly provided a mandatory or exclusive remedy or a specific procedure to be followed by the aggrieved party and the remedy provided was adequate and complete. See, e.g., Pennsylvania Life Insur. Co. v. Pennsylvania National Life Insur. Co., 417 Pa. 168, 208 A.2d 780 (1965) (equity jurisdiction improper where Administrative Agency Law provided for uniform and comprehensive method of appeal from decision of administrative agency); Chartiers Valley School District v. Virginia Mansions Apartment, Inc., 340 Pa.Super. 285, 489 A.2d 1381 (1985) (complaint in equity requesting protection of interest in property tax dismissed where statute provided specific out-of-court remedies); Aquarian Church of Universal Service v. County of York, 90 Pa.Commw. 290, 494 A.2d 891 (1985) (statutory remedy of appeal to tax assessment board by Church seeking to restrain tax sale of property was mandatory and exclusive remedy precluding action in equity); Peitzman v. Seidman, supra (Landlord and Tenant Act provided complete statutory remedy for aggrieved tenants thereby precluding equity jurisdiction); City of Beaver Falls v. Samuels, 272 Pa.Super. 76, 414 A.2d 676 (1979) (existence of three alternate and specific statutory procedures for city to follow in action to abate nuisance precluded equity jurisdiction).

Actions in equity have, however, been held to be appropriate where the statute involved did not provide an exclusive or mandatory remedy or where the remedy provided was inadequate. See, e.g., Redding v. Atlantic City Electric Company, 440 Pa. 533, 269 A.2d 680 (1970) (action at equity could be maintained where statutory remedy was merely permissive or alternative); Harris Walsh, Inc. v. Dickson City Borough, 420 Pa. 259, 216 A.2d 329 (1966) (equity has jurisdiction where statute failed to provide administrative and judicial procedures sufficient to adequately determine all questions presented). See also Pennsylvania State Chamber of Commerce v. Torquato, supra (“test case” could be decided by court of equity despite statutory remedy in order to prevent multiplicity of suits).

In this case, we find nothing in the MVFRL that suggests that it was intended to provide an exclusive or mandatory remedy in the form of an action at law, although such an action is clearly allowed as a form of recovery for unpaid benefits. Even were we to find, however, that the statute did provide such an exclusive or mandatory remedy, we would nevertheless find the remedy provided inadequate under the circumstances of this case. We agree with the trial court insofar as it concluded that equity jurisdiction is proper because “the harm resulting to ... [Hill] from the breach of contract was a continuing harm and would have compelled [Hill] to bring a series of suits upon each infraction by ... [Nationwide].” As the trial court indicated, if the case were transferred to the law side, it would result in a multiplicity of suits as well as a great deal of difficulty in determining “the actual computation of ongoing damages.”

Nationwide relies upon three provisions of the MVFRL in support of its position that the MVFRL provides and adequate remedy at law preclusive of equity jurisdiction: (1) section 1712, which outlines first-party benefits; (2) section 1716, which sets forth the time at which benefits are overdue and the interest on overdue benefits; and (3) section 1721, which provides the statute of limitations for actions for first party benefits. We now turn to a consideration of each of these sections.

Section 1712 of the Act, dealing with the availability of benefits, provides in pertinent part:

An insurer issuing or delivering liability insurance policies covering any motor vehicle of the type required to be registered under this title, except recreational vehicles not intended for highway use, motorcycles, motor-driven cycles or motorized pedacycles or like type vehicles, registered and operated in this Commonwealth, shall make available for purchase first party benefits with respect to injury arising out of the maintenance or use of a motor vehicle as follows:
(1) Medical benefit. — Coverage to provide for reasonable and necessary medical treatment and rehabilitative services, including, but not limited to, hospital, dental, surgical, psychiatric, psychological, osteopathic, ambulance, chiropractic, licensed physical therapy, nursing services, vocational rehabilitation and occupational therapy, speech pathology and audiology, optometric services, medications, medical supplies and prosthetic devices, all without limitation as to time, provided that, within 18 months from the date of the accident causing injury, it is ascertainable with reasonable medical probability that further expenses may be incurred as a result of the injury. Benefits under this paragraph may include any nonmedical remedial care and treatment rendered in accordance with a recognized religious method of healing.

75 Pa.C.S.A. § 1712(1).

This section of the MVFRL sets forth the types of benefits to be offered by insurers. Clearly under this section Hill was entitled to receive medical benefits covering all reasonable and necessary services, including his medication and physical therapy, since he was covered by a policy issued in accordance with section 1712. However, this section does not set forth any specific procedure or mandatory remedy for the enforcement of an insured’s right to such benefits.

Appellant next directs our attention to section 1716, which provides:

Payment of benefits. Benefits are overdue if not paid within 30 days after the insurer receives reasonable proof of the amount of the benefits. If reasonable proof is not supplied as to all benefits, the portion supported by reasonable proof is overdue if not paid within 30 days after the proof is received by the insurer. Overdue benefits shall bear interest at the rate of 12% per annum from the date the benefits become due. In the event the insurer is found to have acted in an unreasonable manner in refusing to pay the benefits when due, the insurer shall pay, in addition to the benefits owed and the interest thereon, a reasonable attorney fee based upon actual time expended.

75 Pa.C.S.A. § 1716.

This section sets forth a time frame for determining when benefits have become overdue as well as the rate of interest to be charged on overdue benefits. In addition, this section establishes a claimant’s right to attorney’s fees where an insurer has acted unreasonably in denying benefits. Although the provisions of this section clearly anticipate the possibility of an action for first-party benefits, the type of action to be used by an insured in securing benefits is not specified.

Finally, Nationwide directs our attention to section 1721, dealing with the statute of limitations applicable to actions for first party benefits due but unpaid:

(a) General rule. — If benefits have not yet been paid, an action for first party benefits shall be commenced within four years from the date of the accident giving rise to the claim. If first party benefits have been paid, an action for further benefits shall be commenced within four years from the date of the last payment.
(c) Definition. — As used in this section the term “further benefits” means expenses incurred not earlier than four years preceding the date an action is commenced.

75 Pa.C.S.A. § 1721(a), (c).

This section limits the time within which an insured can sue the insurer for first party benefits that are due and unpaid. It is not relevant as to whether an equitable remedy in the form of an order requiring payment of future benefits is also available. To interpret the fact that the MVFRL includes such a statute of limitations as impliedly limiting the remedy to a legal one would be an unwarranted extension of the actual language of the statute.

None of the sections relied upon by Nationwide lend support to its argument that the MVFRL provides a mandatory or exclusive remedy for a wrongful denial of benefits or a complete and adequate legal remedy for one who has been wrongfully denied such benefits and is in need of further medical treatment. Nor do we find any other provision of the MVFRL that even remotely speaks to this issue.

The trial court here ordered payment to Hill for future treatment up to the amount specified under Hill’s policy, subject to medical re-evaluations as directed by the court. This is the only fair and logical remedy under the circumstances and it is not precluded by the statute. Had Hill pursued a purely legal remedy, it would have secured to him only those benefits due him at the time of that action. He may then have been required to institute a new action each time a bill he submitted for payment was denied by Nationwide. Such a remedy would clearly be inadequate. It would not only subject Hill to the necessity of repeated litigation, but also might require him to pay for his treatment “up front” in hopes of reimbursement by Nationwide. It cannot be gainsaid that Hill and most individuals like him simply are not in the financial position to assure payment of their own ongoing treatment. Only in the world of television does a patient enter a treatment facility without being asked to show his insurance card at the front door. Without proof of insurance to cover medical care, Hill would most likely find himself unable to secure further treatment. Realistically speaking, equity provides the only adequate remedy for an insured in Hill’s position. To interpret the MVFRL as precluding this remedy would clearly contravene the policies underlying the statute which, as remedial legislation, is to be liberally construed. See Persik v. Nationwide Mutual Ins. Co., 382 Pa.Super. 29, 554 A.2d 930 (1989); Donegal Mutual Ins. Co. v. Long, 387 Pa.Super. 574, 564 A.2d 937, 943 n. 4 (1989).

II. Attorney’s Fees.

Nationwide next contends that the award of attorney’s fees was not supported by the evidence in this case. Nationwide maintains that its failure to pay Hill’s medical benefits, based upon its evaluation of reports supplied by its own physicians, was neither in bad faith nor unreasonable but simply an “honest dispute between insurer and ... [Hill].”

Section 1716 of the MVFRL permits the recovery of attorney fees in an action for first-party benefits by an insured where the insurer has “acted in an unreasonable manner in refusing to pay the benefits when due.” Interestingly, another section of the MVFRL, also addresses awards of attorney’s fees. Section 1798(b) provides that the insurer must pay attorney’s fees when the insurer is found to have acted with no reasonable foundation in denying first party benefits. 75 Pa.C.S.A. § 1798(b).

Appellate case law construing these sections of the MVFRL is sparse. However, in the recent decision of a panel of this court in De Michele v. Erie Insurance Exchange, 385 Pa.Super. 634, 561 A.2d 1271 (1989), the court construed the MVFRL to mean that attorney’s fees are payable “where an insurer unreasonably fails to pay benefits when due____” The De Michele court further elaborated on this interpretation by stating "... we interpret the statute to provide that only where an insurer’s failure to pay constitutes an unreasonable act which is clearly contrary to the terms of the policy and to Pennsylvania law, will the insurer be responsible for paying the insured’s reasonably incurred attorney’s fees. In effect, we have interpreted this portion of the statute to act as a penalty and deterrent for bad faith behavior.” Id., 385 Pa.Superior Ct. at 636-7, 561 A.2d at 1273-74.

The trial court in this case awarded attorney’s fees to Hill because it expressly found that Nationwide had acted in bad faith in terminating Hill’s benefits. Although the court did not cite to the MVFRL in support of this conclusion, the court relied upon two cases decided under the now repealed No-fault Act: Shaffer v. Pennsylvania Assigned Claims Plan, 359 Pa.Super. 238, 518 A.2d 1213 (1986) and Solomon v. Sentry Insur. Co., 324 Pa.Super. 329, 471 A.2d 863 (1984). We assume the trial court found these cases relevant because the No-fault Act provided for an award of fees where the insurer acted without reasonable foundation in denying benefits, and thus, contained the same language now found in Section 1798(b) of the MVFRL. See Pa.Stat. Ann. tit. 40, § 1009.107(3) (Purdon Supp. 1983-84) (repealed). This language in the No-Fault Act had also been construed to impose a bad faith requirement for awards of attorney’s fees. Hayes v. Erie Insurance Exchange, 493 Pa. 150, 425 A.2d 419 (1981). Therefore, we must assume that in finding “bad faith”, the trial court was actually concluding that Nationwide had “no reasonable foundation” for its conclusion that Hill was no longer in need of medical services relating to the injuries he had received.

Nationwide acknowledges that the findings of the trial judge should not be reversed absent an abuse of discretion or lack of evidentiary support. Firestone v. Luther Ford Sales, Inc., 271 Pa.Super. 480, 414 A.2d 355 (1979). Moreover, it is well-settled that issues of witness credibility and evidentiary weight are within the exclusive province of the chancellor. Babin v. City of Lancaster, 89 Pa.Cmwlth. 527, 493 A.2d 141 (1985). Nevertheless, it is Nationwide’s position that there was insufficient evidence to support a finding, of bad faith on its part.

The trial judge in this case found the medical evidence of Hill’s need for continued treatment to be clearly more credible than the reports by Nationwide’s doctors that Hill required no further medical care and apparently inferred from this evidence that Nationwide had acted in bad faith in rejecting the views of Hill’s medical providers in favor of its own doctor’s assessment. We find ample support for this inference in the record. Nationwide’s decision to rely upon the reports of its own doctors, only one of whom appears actually to have examined Hill, in the face of the overwhelming contrary evidence showing Hill’s actual need for continuing treatment, can easily be seen as having no reasonable foundation. Such unilateral decisions by insurers, which can have immediate and dire consequences for insureds, are certainly one species of conduct that should be deterred by the attorney’s fees provisions of the MVFRL. The trial court did not abuse its discretion in finding that Nationwide acted in bad faith in terminating Hill’s medical benefits.

The order of the trial court is affirmed.

WIEAND, J., files dissenting opinion.

WIEAND, Judge,

dissenting.

The majority holds that a policy of automobile insurance providing coverage for first party benefits under the Motor Vehicle Financial Responsibility Law may be specifically enforced in equity. I dissent. I would hold that an action at law to recover money damages as provided by the statute is an adequate remedy. I also dissent from the majority’s holding that an insurance company which, in reliance upon a physical examination made by a competent physician, has discontinued the payment of first party benefits can, without more, be made to pay the claimant’s counsel fees in a subsequent action to recover benefits.

David Hill sustained personal injuries as a result of a motor vehicle accident on July 27, 1985. Nationwide Insurance Company (Nationwide) paid first party medical benefits for the first year thereafter and up to September 24, 1986, when it discontinued further payments. Its decision to deny further payments was based upon independent physical examinations conducted by Dr. Frances Bryan, an internist, and Dr. Richard Schmidt, an orthopedic surgeon. Dr. Bryan found no physical reason that would prevent Hill from working and recommended a home exercise program. Dr. Schmidt found no residual effects of the accident and opined that there was no need for Hill to receive further medical treatments. When Hill’s claim for continuing benefits was denied, he filed an action in equity to compel Nationwide’s continued payment of medical benefits. The insurance company moved to transfer the action to the law side of the court where a factual determination of Hill’s need for continuing medical treatment could be made by a jury. The trial court denied Nationwide’s motion on grounds that the insurer’s denial of liability was subject to repetition which might require multiple additional actions. After trial without a jury, at which conflicting testimony was presented regarding Hill’s recovery from his injuries, the trial court entered a decree nisi in which Nationwide was directed to pay accumulated medical bills in the amount of $12,849.79, together with interest at the rate of 12% and counsel fees in the amount of $5,687.50. The insurer was also directed to “continue to pay medical and medically related bills ... as shall be submitted ... for payment until further Order of this Court, subject to policy limits as to amount of insurance coverage.” The trial court added in its adjudication that it would “direct independent medical examinations both of an orthopedic and psychiatric nature, said examiners to be appointed by the Court, at intervals of no less than six months, or for a shorter time on petition of a party and for good cause shown, to determine the need for continued medical and/or psychiatric or psychological treatment____” A motion for post-trial relief was denied, and the decree nisi was entered as the final decree of the court. Nationwide appealed.

“It is axiomatic that in order for a Court to grant equitable relief to redress the violation of a legal right, the remedy at law must be inadequate.” Robinson v. Abington Education Association, 492 Pa. 218, 223, 423 A.2d 1014, 1016 (1980). Moreover, “[i]t is generally established that where a remedy is provided by statute, the jurisdiction of a court of equity may not be invoked since there is an adequate remedy at law.” Peitzman v. Seidman, 285 Pa.Super. 228, 231, 427 A.2d 196, 198 (1981). See: DeLuca v. Buckeye Coal Company, 463 Pa. 513, 519, 345 A,2d 637, 640 (1975). “When a statute provides a remedy by which a right may be enforced, no other remedy than that afforded by the statute can be used.” Pennsylvania State Chamber of Commerce v. Torquato, 386 Pa. 306, 329, 125 A.2d 755, 766 (1956), cert. denied sub nom. Bouman v. Pennsylvania State Chamber of Commerce, 352 U.S. 1024, 77 S.Ct. 589, 1 L.Ed.2d 596 (1957), quoting Collegeville v. Philadelphia Suburban Water Co., 377 Pa. 636, 645, 105 A.2d 722, 726 (1954). In such cases, equity will grant relief only if the statutory remedy is not adequate or its pursuit would work irreparable harm. Pennsylvania State Chamber of Commerce v. Torquato, supra 386 Pa. at 329, 125 A.2d at 766; Collegeville v. Philadelphia Suburban Water Co., supra 377 Pa. at 646, 105 A.2d at 726; Duquesne Light Company v. Upper St. Clair Township, 377 Pa. 323, 340, 105 A.2d 287, 294-295 (1954). A claim for money damages is ordinarily cognizable at law, not in equity. Central Storage & Transfer Co. v. Kaplan, 37 Pa.Commw. 105, 112, 389 A.2d 711, 715 (1978), aff'd, 487 Pa. 485, 410 A.2d 292 (1979). See: Bauer v. P.A. Cutri Co. of Bradford, Inc., 434 Pa. 305, 253 A.2d 252 (1969).

In this action the claimant sought to recover money damages representing first party benefits under the Motor Vehicle Financial Responsibility Law. An action at law is an adequate remedy to recover such moneys. Moreover, a claim for first party benefits is controlled by the statute. If benefits are not paid within thirty (30) days, they bear interest at the rate of 12% per annum from the date they become due. 75 Pa.C.S. § 1716. If the denial of benefits is unreasonable, the insurer is required to pay, in addition, “a reasonable attorney fee based upon actual time expended.” Id. These provisions contemplate an action at law for money damages. The remedy at law, in view of the penalties imposed by the statute for failure to make payment when due, is clearly adequate. The statute does not envision and the courts should not create a remedy which requires courts of equity to supervise insurance companies in the performance of their duties under MVFRL. It is an adequate remedy that defaulting insurance companies will be required to pay to the claimant interest at the rate of 12% and, if their default has been unreasonable, a counsel fee as well.

The majority, although conceding that an action at law is an adequate remedy to recover money damages, allows an action in equity for specific performance because Nationwide may refuse to make future payments, in which event Hill will be required to institute multiple actions to enforce his rights. I do not find this argument persuasive. In the first place, the record does not support a finding that Nationwide will in the future refuse to comply with the duties imposed upon it by MVFRL and the provisions of its policy of automobile insurance. It is sheer speculation to conclude from this record that multiple actions will be required to enforce Hill’s claim for first party benefits. In the absence of evidence to support such a finding, the claimant must be held to have failed in his burden of showing the need for a court of equity to assume jurisdiction. Equitable jurisdiction does not exist to protect against mere possibilities. Jones v. Amsel, 388 Pa. 47, 52-53, 130 A.2d 119, 122 (1957); Philadelphia Assoc. of School Administrators v. School Dist. of Phila., 80 Pa.Commw. 242, 246-247, 471 A.2d 581, 584 (1984), citing Robinson v. Philadelphia, 400 Pa. 80, 89, 161 A.2d 1, 6 (1960).

The dispute between insurer and insured in this case arose because independent examinations of the insured by competent physicians disclosed that continuing medical treatment was unnecessary. If these medical opinions are incorrect, as the trial court has found, there is no reason to believe that Nationwide will refuse to make payment of first party benefits as and when they become due. In the event it fails to do so, however, the legislature has provided an adequate remedy. If payments are not made when due, the insurer will become liable for interest at the rate of 12%; and if the default is unreasonable, the insurer will be required to reimburse the claimant for any counsel fees incurred in collecting moneys which Nationwide wrongfully refused to pay.

The recovery of damages, plus interest and counsel fees, is not only an adequate remedy but also one which is more efficient and less wasteful of judicial resources than a remedy in equity which requires the court to monitor a claimant’s physical condition by multiple examinations of the claimant by court appointed physicians. The majority's decision to allow equitable jurisdiction for the purpose of decreeing specific performance of policies of automobile insurance issued under the Motor Vehicle Financial Responsibility Law establishes an unfortunate precedent. It will undoubtedly increase the number of actions brought in equity to enforce policies of insurance by calling upon the contempt powers of the court. It will also provide precedent for removing to courts of equity many disputes which are now heard by juries in courts of law. In my judgment, this is unnecessary. Where the only dispute between claimant and insurer is whether the claimant has recovered from injuries received in a vehicular accident, the dispute is better resolved at law. Because this is an adequate remedy, I submit, a court of equity lacks jurisdiction to grant specific performance.

“In the event an insurer is found to have acted with no reasonable foundation in refusing to pay the benefits enumerated ... when due, the insurer shall pay, in addition to the benefits owed and the interest thereon, a reasonable attorney fee based upon actual time expended.” 75 Pa.C.S. § 1798(b). See also: 75 Pa.C.S. § 1716. In effect, this statutory provision has been interpreted as a penalty intended to deter bad faith conduct. DeMichele v. Erie Insurance Exchange, 385 Pa.Super. 634, 636-7, 561 A.2d 1271, 1273-1274 (1989). See: Hayes v. Erie Insurance Exchange, 493 Pa. 150, 160, 425 A.2d 419, 424 (1981).

In the instant case, the insurer discontinued the payment of first party benefits after fourteen months because the claimant was found to have recovered from his injuries by two competent physicians employed to examine him. The trial court, after hearing medical testimony from experts employed by both sides, found the claimant’s witnesses more credible and held that claimant was entitled to continuing benefits. With no other basis therefor than its own determination of credibility, the trial court found that the insurer had acted in bad faith and awarded to claimant a counsel fee of $5,687.50. The majority affirms. I dissent. I conclude that the trial court’s finding of bad faith is unsupported by the evidence. Therefore, I would reverse the award of counsel fees.

Provision is made in 75 Pa.C.S. § 1796(a) for the physical examination of a claimant whose physical condition is material to his claim for benefits. When an insurer obtains a physical examination of the claimant by a competent physician, it cannot be said that the insurer acts in bad faith when it relies upon the physician’s report to deny further benefits. Otherwise, the right to obtain a physical examination of the claimant is meaningless. The mere fact that equally competent physicians employed by the claimant thereafter reach a different conclusion is an inadequate basis on which to find that the insurer acted unreasonably or in bad faith. This is not altered merely because a court or jury subsequently determines that the opinions of the claimant’s physicians are more reliable. If the law were otherwise, an insurer would become liable for counsel fees in each case in which it mistakenly relied upon competent medical advice, whether or not its mistake was reasonable and whether or not it acted in bad faith. Indeed, in such cases the insurer would be compelled to rely upon the advice of physicians at its peril. This is not what the law provides. Before an insurer becomes liable for the payment of counsel fees, it must have acted unreasonably and in bad faith.

In the instant case, the insurer denied the claim for continuing medical expenses because competent physicians had examined the claimant and found further medical treatment unnecessary. I would hold that it was error to find that the insurer acted in bad faith under these circumstances and would reverse the award of counsel fees.

For the foregoing reasons, I would vacate the award of counsel fees and reverse and remand for transfer to the law side of the court for trial by jury on the claim for first party benefits.

      . At the conclusion of Nationwide’s brief on appeal, Nationwide summarily asserts that "[t]he trial of the matter in equity has denied Defendant the right to a jury trial." This assertion is not supported by any citation to authority or argument. We, therefore, are not aware of what Nationwide views as the basis for this assertion and we consider it waived. “When an appellant fails to carry forward, or is indecipherably vague in, argumentation upon a certain point in his appellate brief, that point is waived." Ibn-Sadiika v. Riester, 380 Pa.Super. 397, 551 A.2d 1112, 1114 (1988) (citing Pelagatti v. Cohen, 370 Pa.Super. 422, 536 A.2d 1337, 1341 (1987); Giant Markets v. Sigma Marketing Systems, 313 Pa.Super. 115, 459 A.2d 765, 771 n. 2 (1983)). See also Bank of Pittsburgh v. Purcell, 286 Pa. 114, 133 A. 31 (1926) (right to jury trial is waivable).
      We do note, however, that the Pennsylvania Constitution does not require a jury trial in an ordinary equity action and once equity has properly assumed jurisdiction, it will do complete justice even if that includes awarding money damages incidental to the equitable relief sought. Rosenberg v. Rosenberg, 276 Pa.Super. 203, 419 A.2d 167 (1980); McGovern v. Spear, 463 Pa. 269, 344 A.2d 826 (1975) ("Once equity obtains jurisdiction, that jurisdiction continues until all issues raised have been determined.”); Fountain Hill Underwear Milk v. Amalgamated Clothing Workers’ Union of America, 393 Pa. 385, 143 A.2d 354 (1958) (equity may award damages in tort and for breach of contract where necessary to do complete justice); Philadelphia Gas Works Co. v. City of Philadelphia, 331 Pa. 321, 1 A.2d 156 (1938) (where assumption of equity jurisdiction is proper, right to jury trial is not unconstitutionally denied). We further note that although equity does not have the power to assume jurisdiction over a cause of action as to which a statute provides an exclusive legal remedy, we have already determined that in this case the MVFRL does not provide such a remedy to a party seeking payment of first party benefits. Compare Gardner v. Allegheny County, 382 Pa. 88, 114 A.2d 491 (1955).

      . 75 Pa.C.S. § 1701 et seq.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    570 A.2d 1054
    COMMONWEALTH of Pennsylvania v. Guy T. GRAZIER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 6, 1989.
    Filed Feb. 12, 1990.

      Richard E. Werner, Pittsburgh, for appellant.
    Claire C. Capristo, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before WIEAND, MONTEMURO and MONTGOMERY, JJ.
   WIEAND, Judge:

On April 8, 1981, the body of Clyde Grazier was pulled from the Allegheny River. The pathologist’s opinion was that he had been killed by blunt forcé trauma and manual strangulation. On January 4, 1988, Guy Grazier, a nephew of the deceased, was charged with the murder of his uncle. On June 24, 1988, a jury found Guy Grazier guilty of murder of the first degree. Grazier then filed post-trial motions in which he alleged that his trial counsel had been ineffective. Therefore, a new lawyer was appointed to represent him, and an evidentiary hearing was held. Post-trial relief was denied, however, and Grazier was sentenced to prison for the term of his natural life.

Thereafter, post-trial counsel was allowed to withdraw, and the trial court appointed the Public Defender to represent Grazier. A timely appeal was filed by the Public Defender on Grazier’s behalf. This appeal was filed to No. 610 Pittsburgh, 1989. While the appeal was pending, Grazier filed in the trial court a pro se petition to remove the Public Defender as his counsel and appoint another lawyer. The trial court found no merit in appellant’s pro se motion and dismissed it. From this order, appellant filed a separate pro se appeal to No. 928 Pittsburgh, 1989.

Appellant’s request for the appointment of other counsel was premised upon his dissatisfaction with the services of the Public Defender during an appeal from an unrelated conviction in 1983. The alleged ineffectiveness of the Public Defender in the prior proceedings is being litigated in post-conviction proceedings which have not been finally determined. Because of these proceedings, appellant argues, it is impossible to establish a good relationship with counsel from the Public Defender’s Office in the instant appeal.

The general principles applicable to a motion for change of counsel were reviewed in Commonwealth v. Neal, 387 Pa.Super. 165, 563 A.2d 1236 (1989). The Court there said:

Pa.R.Crim.P. 316(c)(ii) provides that “[a] motion for change of counsel by a defendant to whom counsel has been assigned, shall not be granted except for substantial reasons.” Whether to grant a defendant’s petition to replace court appointed counsel is a decision which is left to the sound discretion of the trial court. Commonwealth v. Segers, 460 Pa. 149, 154, 331 A.2d 462, 465 (1975). See also: Commonwealth v. Williams, 514 Pa. 62, 522 A.2d 1058 (1987); Commonwealth v. Person [345 Pa.Super. 341, 498 A.2d 432 (1985)], supra; Commonwealth v. Bell, 328 Pa.Super. 35, 476 A.2d 439 (1984); Commonwealth v. Tuck, 322 Pa.Super. 328, 469 A.2d 644 (1983). As a general rule, however, a defendant must show irreconcilable differences between himself and his court appointed counsel before a trial court will be reversed for abuse of discretion in refusing to appoint new counsel. See: Commonwealth v. Knapp [374 Pa.Super. 160, 542 A.2d 546 (1988) ], supra (defendant’s allegation that he and counsel had a strained relationship was not sufficient to justify appointment of new counsel); Commonwealth v. Chew, 338 Pa.Super. 472, 487 A.2d 1379 (1985) (mere difference of opinion concerning trial strategy or brevity of pre-trial communications does not compel the appointment of new counsel); Commonwealth v. Johnson, 309 Pa.Super. 117, 454 A.2d 1111 (1983) (defendant’s asserted lack of confidence in court appointed counsel’s attitude was not sufficient reason for appointment of new counsel). Compare: Commonwealth v. Tyler [468 Pa. 193, 360 A.2d 617 (1976)], supra.

Id., 387 Pa.Superior Ct. at 175-176, 563 A.2d at 1241.

In the instant case, appellant has not averred substantial reasons for replacing the lawyer who represents him on appeal to this Court. Neither the lawyer nor the Public Defender by whom counsel is employed represented appellant previously in this action. Therefore, present counsel is not burdened by a direct conflict of interest that would impair his ability to give his undivided loyalty to appellant. Appellant also has failed to allege irreconcilable differences between himself and appellate counsel that would impair counsel’s ability to represent appellant vigorously on appeal. The mere averment that in a separate and unrelated proceeding another member of the Public Defender’s staff rendered ineffective assistance, without more, does not incapacitate the entire staff of the Public Defender from representing appellant in this case. If the law were otherwise, a defendant’s mere assertion of ineffective assistance by a lawyer employed by the Public Defender would forever bar the Public Defender from representing the same defendant in subsequent, unrelated criminal matters. We do not perceive this to be the law.

The trial court, in rejecting appellant’s motion to replace appellate counsel, concluded that appellant was an “impossibly contentious individual who would not be satisfied with the representation of any counsel, however able and patient.” This suggests that the differences, if any, between appellant and his present counsel are unreasonable and of appellant’s own making. Under these circumstances and in view of existing law, we are unable to conclude that the trial court abused its discretion by denying appellant’s pro se motion to replace appellate counsel with a lawyer not employed by the Public Defender of Allegheny County.

In appellant’s direct appeal from the judgment of sentence, he argues that trial counsel was ineffective because he failed to (1) file a motion to quash the information on grounds of delay between the homicide and arrest; (2) file a motion in limine to prevent the Commonwealth from using a 1979 robbery conviction to impeach him if he elected to testify; and (3) move to continue the trial because of head injuries previously sustained by appellant while in prison. We find no merit in these contentions and affirm the judgment of sentence.

Counsel is presumed to have acted effectively. Therefore, the burden of proving constitutionally ineffective assistance by counsel is on the defendant who asserts the same. Commonwealth v. Floyd, 506 Pa. 85, 90, 484 A.2d 365, 367 (1984); Commonwealth v. Miller, 494 Pa. 229, 233, 431 A.2d 233, 235 (1981). To demonstrate ineffective assistance, a defendant must show an underlying claim of arguable merit in respect of which counsel’s stewardship was unreasonable. Commonwealth v. Buehl, 510 Pa. 363, 378, 508 A.2d 1167, 1174 (1986), cert. denied, — U.S. —, 109 S.Ct. 187, 102 L.Ed.2d 156 (1988). In addition, the defendant must show that he was prejudiced by counsel’s action or inaction. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

There is no statute of limitations in homicide cases. Therefore, the principal safeguard against undue delay between crime and arrest is not available in this case. See: Commonwealth v. Arnold, 331 Pa.Super. 345, 360, 480 A.2d 1066, 1074 (1984). However, the due process clause of the Fourteenth Amendment to the Constitution of the United States requires dismissal if the delay prior to the bringing of formal charges has been an intentional device to gain a tactical advantage over the accused and has caused substantial prejudice to the accused’s right to a fair trial. See: United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468, 480-481 (1971). A delay for reasonable investigation does not violate due process. The prosecution is under no constitutional duty to file charges as soon as it obtains evidence of a defendant’s guilt. To prove a violation of due process, a defendant must show not only that he was prejudiced by the delay, but also that the Commonwealth’s action in causing or allowing the delay was “fundamentally unfair.” United States v. Lovasco, 431 U.S. 783, 795-796, 97 S.Ct. 2044, 2051-2052, 52 L.Ed.2d 752, 762-763 (1977). See also: Commonwealth v. Colson, 507 Pa. 440, 451-453, 490 A.2d 811, 817 (1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986); Commonwealth v. Berry, 355 Pa.Super. 243, 251, 513 A.2d 410, 414 (1986); Commonwealth v. Murphy, 305 Pa.Super. 246, 252, 451 A.2d 514, 517 (1982).

In the instant case, the pre-arrest delay was approximately six years and nine months following the date of the homicide. This is substantial. However, there is no evidence to suggest that the delay was caused intentionally by the Commonwealth to gain a tactical advantage over appellant, and appellant’s testimony that he was prejudiced by the delay was rejected by the trial court.

The principal witnesses against appellant at trial were two former girlfriends to whom he had made inculpatory statements. Although there is a suggestion in appellant's evidence that police had obtained knowledge of these statements in 1982, the evidence is equivocal; and there is no evidence that the Commonwealth had been improperly motivated. Indeed, there is no evidence in the record before this Court as to what caused the delay. We know only that appellant was arrested on other charges in 1982, on which he was later convicted, and that he has been continuously incarcerated since that time.

Appellant contends that he was prejudiced because Dr. Larkin could not be found at the time of trial. Dr. Larkin, who had performed the autopsy on the' victim, had opined that the killer was left-handed. At trial, defense counsel was able to obtain from the prosecuting attorney an agreement to stipulate to Larkin’s testimony, but appellant refused to allow such a stipulation. However, defense counsel was able to elicit from Dr. Rozin, who testified from Dr. Larkin’s notes, that Larkin believed the killer to be left-handed. Defense counsel also produced evidence at trial that appellant was right-handed. Thus, even though Rozin testified that it was impossible to determine whether the killer was right-handed or left-handed, appellant was able to place before the jury the notes and opinion of Dr. Larkin.

Appellant also complains that he was prejudiced by the death of Helen Savage prior to trial. Savage, however, had no direct knowledge regarding the facts of the case. Her only testimony would have been that one of appellant’s girlfriends had told appellant, in April, 1981, that she had been interviewed by police officers and had told them she knew nothing. This testimony had no relevancy except, possibly, to challenge the girlfriend’s credibility. Because the testimony of Helen Savage would not have exculpated appellant, her death was not sufficient prejudice to implicate principles of due process. Commonwealth v. Sneed, 514 Pa. 597, 604, 526 A.2d 749, 752 (1987).

We conclude, for these reasons, that the trial of homicide charges against appellant in 1988 was not barred by principles of due process. Therefore, trial counsel was not ineffective for failing to move pre-trial to quash the information on grounds that pre-arrest delay had violated due process.

Trial counsel was not ineffective for failing to file a motion in limine to exclude evidence of appellant’s prior conviction for robbery. In the first place, the law was settled by the time of trial in this case that evidence of prior convictions was admissible to impeach the credibility of a criminal defendant who testified in his own behalf so long as the conviction had been for an offense involving dishonesty and had occurred within ten years of the date of trial. Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987). Relying on the decision in Randall, the trial court ruled that if appellant testified, his prior conviction for robbery would be admissible. When appellant became aware of this ruling, he decided that he would.not testify. Under these circumstances, appellant is not entitled to a new trial merely because his counsel failed to move in limine to exclude evidence of his prior conviction for robbery.

Finally, appellant contends that his trial counsel was ineffective for failing to move for a continuance of the trial. However, he has failed to demonstrate either that he was entitled to a continuance or that he was prejudiced by counsel’s failure to request a continuance which, if granted, would have resulted in additional delay. Appellant did not show that he was unable physically or mentally to withstand the rigors of trial or that he could not assist in the defense of the case. The fact that he had been struck on the head several months before the trial did not alone entitle him to a continuance. On this record, therefore, it is clear that trial counsel was not ineffective for failing to move for a continuance.

In the appeal filed to No. 928 Pittsburgh, 1989, the order denying appellant’s motion for a change of counsel is affirmed. In the appeal filed to No. 610 Pittsburgh, 1989, the judgment of sentence is affirmed.

      . The trial court made no finding with respect thereto.


author: HESTER, Judge:

text:
    570 A.2d 1058
    In re ESTATE OF Edna A. HOPKINS. Appeal of MID-STATE BANK AND TRUST COMPANY, Administrator of the Estate of Ward W. Hopkins.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1989.
    Filed Feb. 13, 1990.
    Petition for Allowance of Appeal Denied July 2, 1990.

      Stephen D. Wicks, Hollidaysburg, for appellant.
    Ralph T. Forr, Jr., Altoona, for Hopkins, appellee and for Greiner and Krywokulski, participating parties.

      John F. Sullivan, Altoona, for Bishop Guilfoyle High School, participating party.
    Vernon R. Byrd, Jr., Philadelphia, for Mid-State Bank, participating party.
    Before DEL SOLE, KELLY and HESTER, JJ.
   HESTER, Judge:

The issue presented in this appeal is whether an undated document was admitted correctly to probate as a last will and testament. We conclude that since the document fails to dispose of any of decedent’s assests and since the document was not signed at the end, it was admitted incorrectly to probate. Accordingly, we reverse.

On December 16, 1987, the Register of Wills of Blair County admitted a handwritten document to probate as the last will and testament of Edna A. Hopkins, deceased. The document, which is written on lined notepad paper, states as follows:

1
[Page one]
Father Kenneth Greiner
Executors and
Logi Krywokulski
Masses to be said by Father Greiner
Money to Guilfoyle H.S[]
Amt undecided
Lawyer — Atty. Foor
I give devise & bequeath to:
Father Greiner
Mr. & Mrs. Krywokulski
Bishop Guilfoyle H.S.
If I should pre-decease my husband Ward, I make provision for his care in the following manner
Call Sheedy, M.D. and make appt for my physical examination to be declared competent and transfer my care from Haduck to Sheedy.
[Page two]
I want it understood that Atty. Gibboney is no longer in charge of my affairs, and Atty. Thomas Foor has agreed to represent me as of 1st of yr. 1987.
[Page three]
List all assets
Govt. Bonds " Notes
cxs
Dreyfus
Home 2410-14 Ave. to be sold and the land Personal property:
Insurance
Clothing
Jewelry
Other Valuables
[Page four]
In conclusion
all the rest residue and remainder of my estate both personal and real and wherever situated I give and bequeath Clothing to Salvation Army

The document is four pages long, and each page is signed vertically along the margin of the page. On December 14, 1988, Mid-State Bank and Trust Company, as administrator of the estate of William W. Hopkins, filed an appeal from probate to the orphans’ court. William Hopkins was decedent’s widower, and he died on November 21, 1987, within a month of his wife. He was the sole intestate heir of decedent.

The petition sur appeal alleges, among other things, that the document was not a will. Following a hearing held on April 4, 1989, the orphans’ court sustained the register’s decree of probate determining, inter alia, that the writing is in such form as to constitute a will. Following denial of its exceptions to the decree sustaining probate, Mid-State filed this timely appeal.

The first issue presented returns us to the basic definition of a will. It always has been the rule of law in this Commonwealth that no special form of words is necessary to constitute a will. See, e.g., Turner v. Scott, 51 Pa. 126 (1867); Rose v. Quick, 30 Pa. 225 (1858); Clingan v. Mitcheltree, 31 Pa. 25 (1857). However, there is one essential element, which is that the document dispose of property.

Instructive is the case of Mannarelli Estate, 436 Pa. 141, 259 A.2d 169 (1969), where the court sustained the orphans’ court’s refusal to probate a letter as a will. The court ruled that the document was not a testamentary disposition because the subject matter of the bequest was not known, although the beneficiary was stated. The court noted that “[w]here a writing by its terms clearly does not constitute a testamentary disposition,” testamentary intent is not relevant. Id., 436 Pa. at 142, 259 A.2d at 170 (emphasis added); see also Sciutti’s Estate, 371 Pa. 536, 92 A.2d 188 (1952) (where letter contained no dispositive provisions, even though it pertained to matters to be considered following scrivner’s death, letter was not a will).

More recently, the supreme court sustained an orphans’ court refusal to probate a document that clearly was a set of instructions to the decedent’s attorney regarding proposed changes to her will. Estate of Moore, 443 Pa. 477, 277 A.2d 825 (1971). The set of instructions examined in Moore was significantly more specific as to the proposed beneficiaries and the subject matter to be distributed than the mishmash of notes that we examine here. See also Estate of Ritchie, 480 Pa. 57, 389 A.2d 83 (1978), where the supreme court found that a document was not a will since it was not dispositive in nature where the document listed decedent’s two daughters as executors, then listed his property and stated that the assets shall be divided fifty/fifty. The court noted that the writing was a set of instructions for use in drafting a will and did not contain a testamentary disposition. Once again, the set of instructions at issue in Ritchie at least could be interpreted so as to match the beneficiaries and the subject matter of the bequest.

Instantly, reviewing each line of the note, the following is stated. Decedent placed the word “executors” next to two names. There is no appointment language. Next, she gives directions regarding a funeral matter. Then, she “gives” money to a beneficiary, but expressly states that the amount is undecided. Her attorney’s name appears next. The name is followed by clear language that she wants to give three beneficiaries something, but she fails to indicate what they are to receive. She then turns to a discussion of her husband, stating that she wants to provide for him in the following manner; yet, she fails to state any manner. Instead, she writes a note to herself to call a doctor regarding a determination of her competency. Next, she notes a change in her preference of attorneys. The following page of the document contains a list of her property, but no beneficiaries. On the next page, the decedent sets forth a residuary bequest, but then fails to name the beneficiaries of that bequest. The only item that could be considered remotely dispositive is her direction of her clothing to a charity.

Thus, although it is clear that the document was testamentary in that it related to disposition of the decedent’s assets following her death, the flaw is that it does not dispose of her property. The document fails to indicate the subject matter of the bequests to her four stated beneficiaries, i.e., her husband, her priest, her friends, and her high school. The estate would be impossible to administer and distribute under this document. A court would be unable to determine who should get what assets. The decedent clearly intended to benefit her husband if he survived her, which he did. How much is his estate to receive? No one would have a basis for determining the amount of the bequest.

There was testimony at the hearing that decedent’s intent when she drafted this document was to leave her residuary estate, in equal shares, to her priest, her friends, and her high school. However, the testimony is contradicted directly by the language in the document and, therefore, is inadmissible to alter it. Decedent wrote that she had not decided on an amount to leave her high school. This is not a residuary bequest. In addition, she states clearly that she intends to benefit her husband. All this is irreconcilable with the testimony that decedent intended to leave her entire estate, in equal shares, to those three beneficiaries. Accordingly, the testimony cannot be considered in order to convert the document into a dispositive scheme capable of interpretation. See, e.g., Estate of Logan, 489 Pa. 29, 413 A.2d 681 (1980), citing Kauffman’s Estate, 365 Pa. 555, 76 A.2d 414 (1950) (extrinsic evidence regarding interpretation of document as testamentary is permitted only where document is ambiguous).

We observe that the fact that decedent’s husband died soon after her is irrelevant. The language pertaining to her husband and the absence of a bequest to him leads to the irrefutable conclusion that this document was not intended as a will. It is a set of inchoate thoughts on possible beneficiaries and possible bequests. This conclusion is confirmed by the use of “list all assets,” instead of “list of my assets,” which indicates that decedent was writing a note to herself to list her assets and not listing her assets in order to write a bequest.

Finally, there was evidence that decedent had two booklets in her possession relating to wills. Those booklets were admitted into evidence, and they contain language showing how to correctly draft a general bequest, specific bequest, and residuary bequest. Accordingly, decedent had language to review if she had wanted to draft a will properly. In fact, the document that she drafted appears to have been in response to directions contained in one of those booklets, which states to draft a will, you must list your property, name your heirs, choose an executor, and consult a lawyer to have it drafted. In conclusion, the evidence establishes that decedent had not decided how to dispose of her assets at the time she wrote the document.

Appellant’s alternative argument is that assuming the document is a will, it was admitted incorrectly to probate since it was not signed at the “end” as required by 20 Pa.C.S. § 2502 (every will shall be written and be signed by the testator “at the end thereof”). The case of Estate of Weiss, 444 Pa. 126, 279 A.2d 189 (1971), is dispositive of the issue presented. In Weiss, the supreme court ruled that a will that was signed vertically along the left margin was not signed at the end. The court specifically ruled that a signature written along the margin was not at the sequential or logical end of the instrument stating, “[T]o hold that a testamentary writing which is signed on the side or margin thereof is valid would ignore and violate the mandatory, statutory requirement that all wills be signed ‘at the end thereof.’ ” Id., 444 Pa. at 131, 279 A.2d at 192 (footnote omitted). Furthermore, decedent had sufficient room at the bottom of each page to sign her name horizontally, or at the logical end of each page. Compare Estate of Stasis, 452 Pa. 425, 307 A.2d 241 (1973). Thus, the natural place for her to place her signature to show the finality of the expression of her wishes was to sign at the bottom of one of the pages, not along the margins, and therefore the margins can not be considered the logical or sequential end of this document.

Ironically, the requirement that a will be signed at the end was enacted in order to prevent the probate of unfinished papers and mere inchoate expressions of intent. Id. By signing at the end of a document, the scrivner has expressed that he has decided on a testamentary scheme and that the writing is not half-formed thoughts never intended to be operative. Id. Thus, the placement of decedent’s signature cements our analysis of the first issue herein.

The orphans’ court committed an error of law in sustaining the decree admitting the document to probate. Accordingly, we reverse.

      . Evidence at the hearing established that decedent attended Guilfoyle High School.

      . Appellee relies upon the case of Estate of Proley, 492 Pa. 57, 422 A.2d 136 (1980), in support of the position that the signature appears at the “logical” end of the document. Proley is the product of an evenly divided court and is of no precedential value.

      . It impossible to determine the precise order of the note pad pages since the document is not logical internally, and each page could be placed in any order with the same effect.


author: MONTEMURO, Judge:

text:
    570 A.2d 1062
    Joseph J. LICIARDELLO, Sr., Appellant, v. Concetta P. Valinoto LICIARDELLO, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 10, 1990.
    Filed Feb. 27, 1990.

      Joseph L. Ditomo, Philadelphia, for appellant.
    Mary C. Doherty, Norristown, for appellee.
    Before DEL SOLE, MONTEMURO and TAMILIA, JJ.
   MONTEMURO, Judge:

This is an appeal from a final decree which divorces the parties, distributes their marital property equally between them, and awards court costs to appellee.

The parties to this case, both 51 years old at the time of hearing, were married in 1955 and separated in 1979. All four of their children are emancipated. Appellant is a Captain of the Philadelphia Police, and operates an auto tag business as well. Appellee has, since a year following separation, been employed as a registered nurse. At the time on the Master’s hearing, both parties produced approximately equivalent earnings, appellant’s being $37,000 and appellee’s $36,000 per year, although in appellant’s case, the figures were based on his former rank of Lieutenant. Appellant apparently enjoys good health, although he is undergoing treatment for hypertension; appellee is subject to anemia and both cardiac and gynecological problems which have periodically compelled her absence from work.

The parties jointly own several pieces of real estate. Of the two residential parcels, one has since separation been in the exclusive possession of appellant. This property, located at 7028 Elmwood Ave., contains two stories, the bottom of which houses appellant’s auto tag business, and the second appellant’s living quarters. Appellee occupies another residential property at 6549 Grays Avenue, herself living in the ground floor unit, and renting the second floor to a tenant whose rent is remitted to appellant. Both properties are covered by a single blanket mortgage payment of $397 per month paid by appellant, who also pays for water and sewer service to appellee’s residence. Neither party pays the other rent.

It is the valuation of these properties, and the credit given for appellant’s expenditures on their behalf, which are now contested by appellant. In addition he challenges the inclusion among marital assets of a property in Brigantine, New Jersey purchased by the parties in 1976. As originally acquired, the New Jersey property consisted of a house and a lot, the latter of which was purchased in the name of the parties’ son, Joseph Jr. The house was sold in 1979, and after sustained litigation, a variance to allow construction on the lot, which was undersized, was obtained. During the course of the legal process, Joseph Jr. conveyed the property to appellant for $1; appellant was eventually granted the desired building permit, and erected a house on the lot. He now argues that the value assigned to this property by the court was erroneous.

Appellant also presents us with claims of error as to the methods of valuation and of distribution of his pension, and the award of court costs to appellee. We will address all of his claims seriatim.

We preface our treatment of appellant’s claims by reiterating the applicable standard of review.

In assessing the propriety of a marital property distribution scheme, our standard of review is whether the trial court, by misapplication of the law, or failure to follow proper legal procedure, abused its discretion. Johnson v. Johnson, 365 Pa.Super. 409, 529 A.2d 1123 (1987); Thomson v. Thomson, 359 Pa.Super. 540, 519 A.2d 483 (1986); Ganong v. Ganong, 355 Pa.Super. 483, 513 A.2d 1024 (1986); Sergi v. Sergi, 351 Pa.Super. 588, 506 A.2d 928 (1986); King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984). Moreover, “an abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence.” Sergi, supra, 351 Pa.Super at 591, 506 A.2d 930, citing Braderman v. Braderman, 339 Pa.Super. 185, 190, 488 A.2d 613, 615 (1985). Specifically, we measure the circumstances of the case, and the conclusions drawn by the trial court therefrom, against the provisions of 23 P.S. § 401(d), and the avowed objectives of the Divorce Code, that is, to “effectuate economic justice between [the] parties ... and insure a fair and just determination of their property rights.” 23 P.S. § 102(a)(6).

Hutnik v. Hutnik, 369 Pa.Super. 263, 266-7, 535 A.2d 151, 152 (1987).

Appellant claims that the trial court erred in including the Brigantine realty among those items termed marital assets, arguing that the property was a gift for the use of the parties’ sons, a purpose demonstrated by its having been titled in the name of Joseph Jr. The trial court found that Joseph Jr. was in fact a straw party, and that the purchase by and conveyance to appellant of the lot was simply the culmination of what had originally been intended when the property was acquired, defining it as a marital asset despite the title. In so concluding, the court relied on Wolf v. Wolf, 356 Pa.Super. 365, 514 A.2d 901 (1986). There a panel of this court found that under the doctrine of resulting trusts, a wife in a divorce action was not precluded from a claim on property purchased with marital funds for the benefit of the parties but titled in the names of her in-laws. Appellee herein testified that although she had no knowledge of why the title to the property was split, she had understood from the outset that the lot had been purchased for the use of herself and appellant, not the children. Since the court found appellee’s testimony credible, the analogue to Wolf is both obvious and dispositive.

Appellant also argues that the values assigned by the court to all of the realty at issue between the parties, including the Brigantine property, were erroneous. His claim is grounded on the theory that since Sutliff v. Sutliff, 518 Pa. 378, 543 A.2d 534 (1988), which requires property valuation as of distribution rather than as of separation, was dated subsequent to the filing of his brief, its principles are inapplicable.

Even were appellant’s arguments as to retroactivity more cogent, he fails to persuade. The law current at the time appellant filed his brief was clearly stated by this court in Diamond v. Diamond, 360 Pa.Super. 101, 519 A.2d 1012 (1987), allocatur denied, 516 Pa. 633, 533 A.2d 92 (1987), which left to the trial court’s discretion the choice of a valuation date, specifically so that economic justice, which is the objective of the Divorce Code, could be achieved. Because of the two year hiatus between the Master’s hearing and review by the trial court, submission of new appraisals of the contested property was requested within 45 days by order dated April 22,1988. Appellant neither complied with the order, nor protested its entry. Sutliff, as appellant accurately points out, was filed June 1,1988, before the due date of the order. By his inaction, appellant therefore not only intentionally failed to respond to the requirements of law either actually or arguably contemporary with his case, but in the process waived his right to argue now that the trial court erred in following that law.

The valuation and mode of distribution of appellant’s pension provides another grounds for complaint, and here too appellant seems determined to disregard the applicable case law. Appellant is adamant that his pension must be valued at time of separation for purposes of equitable distribution, and having failed to select this date, the trial court erred in the figure it placed upon appellant’s pension. While appellant is in general correct, Braderman v. Braderman, supra, there is an exception to the blanket rule he would have us apply. In Morschhauser v. Morschhauser, 357 Pa.Super. 339, 516 A.2d 10 (1986), we held that “where a plan has vested and value increases aside from contribution of the parties, beyond the date of separation,” id., 357 Pa.Superior Ct. at 334-5, 516 A.2d 12-13, the increase is marital property. See, Hutnik v. Hutnik, 369 Pa.Super. 263, 269, 535 A.2d 151, 154 (1987). There is no argument that appellant’s plan is in fact vested. The Braderman court itself noted that “the vast majority of jurisdictions hold that vested, unmatured retirement benefits are marital property,” id., 339 Pa.Superior Ct. at 193, 488 A.2d 616, and Pennsylvania does not dissent from this view. The trial court was therefore correct in its choice of both the time of evaluation of appellant’s pension, and the value assigned.

Appellant’s claim that the trial court erred in selecting the immediate offset method of distribution is grounded on the assertion that he does not have the cash available to make the initial $21,000 payment offsetting his share of the pension. The trial court found appellant’s plea of impecuniousness unpersuasive as he had a larger sum of cash than the offset readily available for other purposes ($64,000 to build the house at Brigantine), and the balance of the offset, $50,000, is deferred, to be paid in installments over a fifteen year period. We see no reason to fault the court’s conclusion. See generally, Hutnik v. Hutnik, supra.

It is also argued that the court erred when it denied appellant credit for one half the mortgage payments made on the residential properties between separation and entry of the decree. Here again the trial court was unimpressed by appellant’s credibility. Although appellant was willing to concede that the supposed credits should be reduced by the rents he received from the rental unit in the Gray’s Avenue property, he never reported the rental payments, which he now claims to have been $12,000 for a ten year period, on his income tax. The amount thus received, which appellant conceded and the trial court found to have been less than a normal rental value, was nevertheless approximately sufficient to cover the mortgage portion attributable to that property. Moreover, appellant took all of the available mortgage interest deduction. Further, at the time of separation, when there was great disparity between the parties’ incomes, since appellee was a full-time nursing student, appellant apparently agreed to forego rental payments from appellee in exchange for her agreement not to seek spousal support. Under these circumstances, we'can perceive no error in the court’s decision as to what credits appellant should now receive.

Finally, appellant contends that court costs should not have been awarded to appellee based on what he claims is appellee’s higher income, and his own sacrifices in paying the mortgage and declining to insist that appellee pay rent. We have stated that the award of fees and costs will be reversed only for abuse of the trial court’s discretion. Campbell v. Campbell, 357 Pa.Super. 483, 516 A.2d 363 (1986), allocatur denied 515 Pa. 598, 528 A.2d 955 (1987). Herein the court concluded that because appellant had already deposited the required sum, and therefore need not make any new expenditures, and because appellee’s economic parity was of relatively recent vintage and derived not at all from appellant’s assistance, she was due greater consideration. As counsel fees were not included in this award, we agree with the trial court’s determination.

Decree affirmed.

      . There was no specific value assigned to appellant’s business, his second source of income. At hearing appellant testified that his earning from the auto tag concern was between $4,000 and $5,000 for the year 1985.

      . Appellant’s substantive arguments are similarly without merit. For example, he states in his brief that the Elmwood property has lost value because it is in a declining commercial district, and his hearing testimony indicated that the property was worthless. However, both the report submitted jointly by the parties at the time of the Master’s hearing, and the updated appraisal submitted by appellee indicate exactly the opposite: that the area is stable, and actually increasing in value due to the advent of a shopping center less than one block from appellant’s premises.

      . We note that following Diamond, the trial court excluded appellant’s post separation improvements to the property from its assigned valuation.


text:
    570 A.2d 1065
    Mark David FRANKEL and Christine S. Frankel, Husband and Wife, Appellants, v. NORTHEAST LAND COMPANY, Curt D. Miller and Cynthia Miller, Husband and Wife and Jefferson Bank, Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 2, 1989.
    Filed Feb. 27, 1990.

      Lewis H. Markowitz, York, for appellants.
    William Z. Scott, Jr., Lansford, for Miller and Jefferson Bank, appellees.
    Before WIEAND, POPOVICH and HOFFMAN, JJ.
   WIEAND, Judge:

In this action for specific performance of a contract for the sale of a condominium and for the recovery of consequential damages, the trial court dismissed counts of the complaint against a subsequent grantee and mortgagee who allegedly had acquired their respective interests with knowledge of the prior agreement to sell the condominium and the pending action to enforce the agreement. We reverse. However, we affirm the dismissal of a separate count of the complaint seeking to recover additional damages on grounds that the conduct of the subsequent purchaser and mortgagee constituted the tort of malicious interference with contract.

Mark and Christine Frankel commenced an action in equity against Northeast Land Company to enforce an alleged agreement for the sale of a condominium, Unit F-199 at Midlake, on Big Boulder Lake, in Kidder Township, Carbon County. The action was indexed as lis pen-dens. While the action was pending, Northeast Land Company conveyed the condominium to Curt and Cynthia Miller, who obtained mortgage financing to complete the transaction from Jefferson Bank. An amended complaint was thereafter filed, with court permission, which named Northeast Land Company, the Millers and Jefferson Bank as defendants. Preliminary objections in the nature of a demurrer to the amended complaint were filed by the Millers and the Bank, in which they asserted that the alleged agreement of sale had not been signed by Northeast Land Company and that, in any event, they were not parties to the agreement and could not be subjected to a decree specifically enforcing the same. The trial court, without opinion, dismissed the counts of the amended complaint which alleged causes of action against the Millers and Jefferson Bank. The Frankels appealed.

The trial court’s order has effectively terminated appellants’ cause of action against the Millers and the Bank. The court’s order, therefore, is appealable. DeGenova v. Ansel, 382 Pa.Super. 213, 216, 555 A.2d 147, 148-149 (1988); Rossi v. Pennsylvania State Univ., 340 Pa.Super. 39, 43-44, 489 A.2d 828, 831 (1985).

A demurrer tests the legal sufficiency of the complaint. Mudd v. Hoffman Homes for Youth, Inc., 374 Pa.Super. 522, 524, 543 A.2d 1092, 1093 (1988). As the Supreme Court has stated:

A demurrer admits every well-pleaded material fact set forth in the pleadings to which it is addressed as well as all inferences reasonably deducible therefrom, but not conclusions of law. Buchanan vs. Brentwood Federal Savings and Loan Association, 457 Pa. 135, 320 A.2d 117 (1974); Borden v. Baldwin, 444 Pa. 577, 281 A.2d 892 (1971); Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970). In order to sustain the demurrer, it is essential that plaintiffs complaint indicate on its face that his claim cannot be sustained, and the law will not permit recovery. Hoffman vs. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970); Schott vs. Westinghouse Electric Corp., 436 Pa. 279, 259 A.2d 443 (1969); Papieves v. Lawrence, supra. If there is any doubt, this should be resolved in favor of overruling the demurrer. Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970).

Wicks v. Milzoco Builders, Inc., 503 Pa. 614, 623, 470 A.2d 86, 91 (1983), quoting Gekas v. Shapp, 469 Pa. 1, 5-6, 364 A.2d 691, 693 (1976). See also: Creeger Brick v. Mid-State Bank, 385 Pa.Super. 30, 30-31, 560 A.2d 151, 152 (1989); McGaha v. Matter, 365 Pa.Super. 6, 8, 528 A.2d 988, 989 (1987).

Appellants’ amended complaint contains averments of a written agreement of sale entered between appellants and Northeast Land Company. A copy of the agreement is attached to the complaint. The attached copy contains the signatures of Mark and Christine Frankel, but it does not disclose that the agreement was executed by or on behalf of Northeast Land Company. An addendum to the agreement, however, has been signed by D. Anne Sincavage, who is represented to be the Assistant Vice President of Northeast Land Company. Whether this signature was intended to be an execution of the entire sales agreement is not clear from the pleadings and will be the subject of proof at the time of trial. For purposes of deciding the preliminary objections filed by the Millers and Jefferson Bank, however, the trial court was required to accept the averments of the amended complaint that Northeast Land Company had entered an agreement to sell the condominium to the Frankels.

Similarly, the trial court could not determine as a matter of law that appellants’ action for specific performance was barred by the Statute of Frauds. “To say that a possible affirmative defense exists to a complaint is not to say that such a complaint is legally insufficient on its face.” Goldman v. McShain, 432 Pa. 61, 72-73, 247 A.2d 455, 461 (1968). A possible failure to comply with the statute of frauds is not grounds for sustaining a preliminary objection in the nature of a demurrer. Shoup v. Shoup, 469 Pa. 165, 172, 364 A.2d 1319, 1323 (1976).

Appellees argue that specific performance cannot be ordered against persons who are not parties to the sales contract. This is not correct. The law is clear that, “[a] party who purchases real estate with notice that his grantor has a prior obligation to convey to another is subject to an action for specific performance by a prior purchaser.” Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 503, 450 A.2d 36, 37-38 (1982). See also: Marshall Construction Company, Inc. v. Forsyth, 359 Pa. 8, 10-11, 57 A.2d 902, 903 (1948); Sidle v. Kaufman, 345 Pa. 549, 557, 29 A.2d 77, 82 (1942). In their amended complaint, appellants aver that at the time the Millers and the Bank acquired their interests, a lis pendens had been indexed against the property. A lis pendens serves to give notice to third parties that the property is subject to litigation and that any interest acquired by the third party will be subject to the result of the litigation. Vintage Homes, Inc. v. Levin, 382 Pa.Super. 146, 155, 554 A.2d 989, 994 (1989), citing Psaki v. Ferrari, 377 Pa.Super. 1, 546 A.2d 1127 (1988), allocatur denied, 522 Pa. 578, 559 A.2d 39 (1989). In this case, it is abundantly clear from the averments of the complaint that appellees acquired their respective interests in the real estate with actual or constructive notice that appellants were claiming a prior interest in the same real estate. Thus, Count III of the amended complaint states a valid cause of action against the Millers and the Bank.

Pa.R.C.P. 2229(e) provides that “[i]n an action to adjudicate title to or an interest in real ... property ... (2) any person whose claim is adverse to that of a plaintiff may be joined as a defendant.” In the instant case, both the Millers and Jefferson Bank have an interest in the condominium which is adverse to the claim being asserted by the appellants. If it should be determined ultimately that appellants are entitled to specific performance of the alleged sales agreement, the Millers and Jefferson Bank will be deprived of their interest in the condominium in order to provide appellants with a complete remedy. Therefore, it was eminently correct that they were joined as parties defendant in this action.

Because the trial judge wrote no opinion to explain the reason for his order, we cannot be certain why he dismissed the Millers and the Bank as parties defendant from appellants’ action for specific performance. The appellees, however, have been unable to demonstrate any good reason for the trial court’s summary disposition of this cause of action, and our review discloses no justification for the trial court’s order dismissing appellees from the action. We conclude, therefore, that the trial court erred when it summarily dismissed Count III of appellants’ amended complaint.

Count IV of the complaint states a cause of action against the Millers alone for money damages to compensate appellants for lost rentals. The general rule is that a purchaser with notice of a prior equity in the same property must not only release legal title but must also account for rents and profits. 92 C.J.S. Vendor and Purchaser § 319(g) (1955). See: Easton Theatres v. Wells Fargo, 265 Pa.Super. 334, 351, 401 A.2d 1333, 1342 (1979) (in action for specific performance, vendor must account to purchaser for deprivation of use, as well as for consequential losses). Appellants’ averment that the Millers took legal title with notice of the pending action for specific performance is a sufficient basis on which to base a cause of action for the fair rental value of the condominium.

Moreover, the rule that equity lacks jurisdiction to award damages for tortious or illegal acts is subject to the exception that when equitable jurisdiction has attached, equity has jurisdiction to grant a complete remedy. Cedarbrook Realty, Inc. v. Nahill, 484 Pa. 441, 446 n. 2, 399 A.2d 374, 376 n. 2 (1979); Fountain Hill Underwear Mills v. Amalgamated Clothing Workers of America, 393 Pa. 385, 393 n. 8, 143 A.2d 354, 359 n. 8 (1958). In the instant case, the trial court had jurisdiction to grant specific performance and also to award damages, if any, which appellants might be entitled to recover if the Millers’ possession of the premises was wrongful. Therefore, the trial court erred when it sustained a demurrer to Count IV of the complaint.

The Supreme Court of Pennsylvania has adopted the provisions of the Restatement (Second) of Torts, § 766 and has made them a part of the law of this Commonwealth. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 207, 412 A.2d 466, 470 (1980), citing Adler, Barish, Daniels, Levin & Creskoff v. Epstein, 482 Pa. 416, 429-433, 393 A.2d 1175, 1181-1182 (1978). Section 766 of the Restatement is as follows:

One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.

Appellants aver generally in Count V of their amended complaint that because the Millers and Jefferson Bank knew or should have known of the lis pendens notice, they are liable additionally for tortious interference with appellants’ contractual rights. This averment is inadequate to state a cause of action for tortious interference with a contract for the sale of real estate. “One does not induce another to commit a breach of contract with a third person under the rule stated in [Section 766 of the Restatement (Second) of Torts] when he merely enters into an agreement with knowledge that the other cannot perform both it and his contract with the third person.” Id. Comment n. “[I]n the case of a contract for the sale of land, the purchaser acquires an equitable interest good against subsequent transferees of the vendor who are not bona fide purchasers.” Id. Therefore, “the rules relating to the protection of [the purchaser’s] interest against subsequent transferees are not within [the tort defined by Section 766 of the Restatement (Second) of Torts].” Id.

Appellants’ remedy, if they prove their cause of action against appellees, has been properly stated in Counts III and IV of their amended complaint. They do not have an additional cause of action against the Millers and Jefferson Bank for tortious interference with their contract with Northeast Land Company. Because they have failed to allege facts stating a cause of action for an intentional interference with contract, the order dismissing Count V of the amended complaint will be affirmed.

The order of the trial court which sustained a preliminary objection in the nature of a demurrer to Count V of appellants’ amended complaint is affirmed. The order sustaining preliminary objections in the nature of a demurrer to Counts III and IV of the amended complaint, however, is reversed; and the case is remanded to the trial court for further proceedings consistent with this opinion. Jurisdiction is not retained.

      . See: Act of March 21, 1772, 33 P.S. § 1.

      . In their briefs to this court, both parties discuss the elements of the tort of wrongful interference with a prospective contract. There is no averment in the amended complaint regarding a prospective contractual relationship. Plaintiffs have alleged the existence of a present contract; and, therefore, we decide only the sufficiency of the amended complaint to allege a cause of action for tortious interference with an existing contract.

      . The Restatement rule also does not impose liability for negligently causing a third person not to perform a contract with another. See: Restatement (Second) of Torts § 766C.


text:
    570 A.2d 1070
    MID-ISLAND PROPERTIES, INC. and Sylvan M. Cohen, a Partnership t/a Wyncote House, Appellees, v. Robert MANIS, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1989.
    Filed Feb. 28, 1990.

      Michael E. Garner, Philadelphia, for appellant.
    David Gutin, Philadelphia, for appellees.
    Before BROSKY, WIEAND and JOHNSON, JJ.
   WIEAND, Judge:

The issue in this appeal is whether a tenant who, on his own initiative, circulates among other tenants a petition intended to induce action or forbearance by the landlord is acting as part of a “tenants’ organization or association” within section 205 of the Landlord and Tenant Act of April 6, 1951, P.L. 69, as amended, 68 P.S. § 250.205, which prohibits a landlord from terminating a lease because of the tenant’s participation in a “tenants’ organization or association.”

Dr. Robert Manis, by agreement dated June 24, 1984, leased a residential apartment from Mid-Island Properties, Inc. (Mid-Island) for a term of one year, beginning September 1, 1984. The lease was renewable annually in the absence of ninety days notice of termination, which could be given by either party. The lease, in fact, was renewed annually until 1988.

In December, 1987, Mid-Island’s management notified its tenants that it intended to discontinue services which theretofore had been provided to tenants using the “lower garage.” Manis was affected by this decision to discontinue services; and, in February, 1988, he circulated a petition among other affected tenants by which he hoped to induce management to reverse its decision. On May 18, 1988, Mid-Island gave notice to Dr. Manis that his lease would not be renewed and that his tenancy would terminate at the end of the current term on August 31,1988. Manis refused to vacate the apartment. Therefore, Mid-Island commenced an action in ejectment to obtain possession of the apartment and, in a separate count, to recover unpaid rent and parking fees. Manis filed an answer containing new matter and a counterclaim for compensatory and punitive damages. He alleged, inter alia, that the termination of his lease had been motivated by his circulation of the petition and, therefore, violated Section 205 of the Landlord and Tenant Act. These averments were denied in Mid-Island’s reply. Subsequently, on motion of Mid-Island, accompanied by affidavits from the parties, the trial court entered summary judgment against Manis in the ejectment action and awarded possession of the apartment to Mid-Island. Section 205 of the Landlord and Tenant Act, the court held, was not available as a defense. Because issues of fact remained in the claim and counterclaim for money damages, however, these claims were reserved for trial. Manis appealed from the order ejecting him from his apartment.

Generally, “an order dismissing some but not all counts of a multi-count complaint is interlocutory and not appealable.” Praisner v. Stocker, 313 Pa.Super. 332, 337, 459 A.2d 1255, 1258 (1983) (en banc). Where the judgment has been entered on an entirely separate cause of action, however, that judgment is immediately appealable. Its appealability is not destroyed merely because other causes of action, joined in the same complaint, remain undecided. Id. Here, as a result of Mid-Island’s cause of action in ejectment, Manis has been evicted from his apartment. This judgment in ejectment is a final judgment and is immediately appealable. Its appealability is not destroyed because the landlord’s claim and the tenant’s counterclaim for money damages have not yet been decided.

Appellee complains that appellant has included in the reproduced record filed in this court the petitions which he circulated among the tenants even though these petitions are not a part of the record. We agree that this was improper. “Documents that are not a part of the record should not be included in the reproduced record and may not be considered on appeal.” In re Estate of Brockerman, 332 Pa.Super. 88, 94, 480 A.2d 1199, 1202 (1984). See also: Auman v. Juchniewitz, 312 Pa.Super. 98, 458 A.2d 254 (1983). Because the copies of these petitions can be disregarded without impairing our ability to conduct meaningful review, we perceive no need to impose further sanctions. Cf. Rappaport v. Stein, 351 Pa.Super. 370, 506 A.2d 393 (1985).

Manis argues on appeal that the trial court erred when it held that he was not participating in a tenants’ organization or association while circulating petitions among other tenants in the building. Section 205 of the Landlord and Tenant Act provides: “No individual unit lease on residential property shall be terminated or nonrenewed on the basis of the participation of any tenant or member of the tenant’s family in a tenants’ organization or association.” In order to assert successfully a violation of this provision by way of defense, it must be shown that there was a “tenants’ organization or association” and that the termination of the tenant’s lease was caused in whole or in part by participation of the tenant or a member of his family in such organization or association.

The Landlord and Tenant Act, in section 102(5), defines a “tenants’ organization or association” as “a group of tenants organized for any purpose directly related to their rights or duties as tenants.” To “organize” is to arrange or unify into a coordinated functioning whole. Webster’s International Dictionary (3rd ed.1965). Similarly, an “association” is defined as a loose body of persons organized for the prosecution of some purpose. Webster’s International Dictionary (3rd ed.1965). The record in this case discloses that there was no organization or association of tenants. The only effort expended in this case was the personal effort of appellant who prepared the petition and set about obtaining signatures thereon. There was no coordinated functioning whole and no united effort by the tenants. Indeed, appellant has conceded that no formal tenants’ organization existed and that not even a meeting was held for the purpose of making a concerted effort to protest the landlord’s decision.

Manis argues that he was acting as spokesperson for elderly and handicapped persons and that the statute was intended to protect persons such as he. This argument must fail. In the first place, it is not supported by the record. There is no basis in the record that would permit a finding that he had been authorized to act on behalf of elderly or handicapped persons. His written solicitation of the tenants did not include any special reference to persons who were elderly or handicapped. Rather, his letter appeared on his personal stationery and was directed to his neighbors and fellow lower garage patrons. Appellant’s activities, the trial court concluded, were a personal crusade intended to persuade the landlord to change its decision regarding services. We agree.

Appellant’s activities were not within the protection of Section 205 of the Landlord and Tenant Act, which was designed to protect organized tenants’ activities. A tenant who individually seeks to induce or deter action by his or her landlord is not protected. When the words of the statute are clear and free from ambiguity, the letter of the statute will not be disregarded under the pretext of pursuing its spirit. 1 Pa.C.S. § 1921(b). See also: Zimmerman v. O’Bannon, 497 Pa. 551, 442 A.2d 674 (1982); Commonwealth v. Patchett, 284 Pa.Super. 252, 425 A.2d 798 (1981).

The landlord gave notice, as required by the terms of the lease, that it was terminating appellant’s lease at the end of the term thereof. This action in ejectment was commenced when appellant refused to vacate the apartment voluntarily. The pleadings, together with the affidavits filed by the parties, disclose that appellant has no defense to the landlord’s action and that the landlord is entitled to recover possession of the demised premises as a matter of law. Therefore, the trial court properly held that appellee was entitled to a summary judgment for possession.

Judgment affirmed.

      . Appellant’s depositions, taken during discovery, are also not a part of the record forwarded to this Court for review. The parties have reproduced portions of those depositions, but the entire depositions have not been made available to us.

      . 68 P.S. § 250.102(5).


author: PER CURIAM:

text:
    570 A.2d 1073
    COMMONWEALTH of Pennsylvania v. Robert KURILLA, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 22, 1990.
    Filed Feb. 28, 1990.

      Charles R. Witaconis, Asst. Public Defender, Scranton, for appellant.
    Andrew Jarbola, Dist. Atty., Scranton, for Com., appellee.
    Before CAVANAUGH, JOHNSON and HOFFMAN, JJ.
   PER CURIAM:

Robert Kurilla appeals from an order denying his motion to quash a criminal information. We quash the appeal.

The criminal complaint charged Kurilla with unlawful receipt of public assistance, in violation of 62 Pa.S. § 481. He was held for trial following a preliminary hearing. Pursuant to Rule 306 of the Pennsylvania Rules of Criminal Procedure, Kurilla filed a pretrial motion to quash the information, alleging that a four-year statute of limitations under the Public Welfare Code would prohibit prosecution of any conduct pre-dating four years from filing the criminal complaint. The Honorable James J. Walsh, President Judge, denied the motion on August 30, 1989. Kurilla seeks to appeal from that denial.

The general rule in criminal cases is that a defendant may appeal only from a final judgment of sentence, and an appeal from any prior order or judgment will be quashed. The rule prohibiting interlocutory appeal is not one of unyielding flexibility. When there are special and exceptional circumstances, a defendant may appeal before his trial and conviction from the court’s refusal to quash an indictment. Commonwealth v. Kilgallen, 379 Pa. 315, 108 A.2d 780 (1954). One such exceptional circumstance is when an issue of basic human rights is involved. Commonwealth v. Bunter, 445 Pa. 413, 282 A.2d 705 (1971) (per Eagen, J., with one Justice concurring and one Justice concurring in the result.)

This is not a Brady-type appeal involving a claim of violation of double jeopardy rights. Commonwealth v. Brady, 510 Pa. 336, 508 A.2d 286 (1986); Commonwealth v. Williams, 361 Pa.Super. 501, 522 A.2d 1143 (1987). We find nothing in the record of this case to support a finding that exceptional circumstances are here present, such as a possible great injustice to the defendant, an issue of basic human rights, or an issue of great importance. Commonwealth v. Reagan, 330 Pa.Super. 417, 479 A.2d 621 (1984). Accordingly, we are constrained to quash the appeal.

Appeal quashed.