author: OLSZEWSKI, Judge: FORD ELLIOTT, Judge,

text:
    628 A.2d 421
    James C. DeWEESE, Appellant, v. ANCHOR HOCKING CONSUMER AND INDUSTRIAL PRODUCTS GROUP and Lewis Brothers and Sons, Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued May 12, 1993.
    Filed July 8, 1993.

      John D. Newborg, Pittsburgh, for Anchor Hocking, appellee.
    Stephanie G. Spaulding, Pittsburgh, for Lewis Bros., appellee.
    Before McEWEN, OLSZEWSKI and FORD ELLIOTT, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order granting summary judgment in favor of defendants below [hereinafter “Anchor Hocking” and “Lewis Brothers”]. Appellant [hereinafter “DeWeese”] was injured when a glass carafe exploded while he was filling it with hot water. The Honorable Livingstone Johnson granted summary judgment because DeWeese was unable to produce the carafe to defendants for inspection during discovery. We affirm.

DeWeese was employed by Highland Country Club [hereinafter “the club”] as a busboy and waiter. On December 1, 1985, DeWeese was responsible to set up a buffet line in preparation for the club’s Sunday morning brunch. As part of this duty, he filled numerous chafing dishes with hot water. DeWeese procured one of the glass pitchers which the club had in its store room and placed it under a coffee urn’s hot water spout, as was his customary practice. As the water filled the pitcher, it exploded and injured DeWeese’s hand. DeWeese was not holding the pitcher, but was standing in its immediate vicinity when the accident occurred. Although no one apparently witnessed the explosion, several employees rushed to DeWeese’s aid and summoned an ambulance. DeWeese was transported to the hospital and the club employees cleaned the area of the accident, discarding the remnants of the shattered pitcher.

DeWeese filed a complaint against Anchor Hocking and Lewis Brothers alleging, among other things, that the two companies were strictly liable as manufacturer and seller of the defective pitcher. Following discovery, Anchor Hocking and Lewis Brothers filed motions for summary judgment. Both parties contended that DeWeese’s failure to preserve the pitcher’s glass fragments effectively precluded them from defending against DeWeese’s contention that he was injured as a result of a defect in a pitcher manufactured by Anchor Hocking and sold by Lewis Brothers, relying on Roselli v. General Electric Co., 410 Pa.Super. 223, 599 A.2d 685 (1991), appeal discontinued (1993). Judge Johnson granted both motions and DeWeese filed this timely appeal.

Summary judgment may be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035(b), 42 Pa.C.S.A. When considering a motion for summary judgment, the trial court must examine the record in the light most favorable to the non-moving party, accept as true all well-pleaded facts in the non-moving party’s pleadings, and give him the benefit of all reasonable inferences drawn therefrom. Dibble v. Security of America Life Ins., 404 Pa.Super. 205, 590 A.2d 352 (1991); Lower Lake Dock Co. v. Messinger Bearing Corp., 395 Pa.Super. 456, 577 A.2d 631 (1990). Summary judgment should be granted only in cases that are free and clear of doubt. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991). We will overturn a trial court’s entry of summary judgment only if we find an error of law or clear abuse of discretion. Lower Lake Dock Co., supra.

The only issue raised on appeal is whether Anchor Hocking and Lewis Brothers were precluded from preparing a defense as a result of DeWeese’s failure to preserve the pitcher fragments. This Court has held that where a plaintiff brings an action claiming that he suffered injury as a result of a defective product, his failure to produce the product for inspection by the defense will render summary judgment against him appropriate. Roselli, supra, 410 Pa.Super. at 228, 599 A.2d at 687-688. We held that allowing a cause of action to continue without the allegedly defective product is contrary to public policy:

To permit claims of defective products where a purchaser of the product has simply thrown it away after an accident, would both encourage false claims and make legitimate defense of valid claims more difficult. It would put a plaintiff (or plaintiffs attorney) in the position of deciding whether the availability of the item would help or hurt his or her case. Where producing the product for defense inspection would weaken rather than strengthen a case, we unfortunately are obliged to conclude that some plaintiffs and attorneys would be unable to resist the temptation to have the product disappear.

Id. (quoting Martin and Greenspan v. Volkswagen of America, No. 88-8261, 1989 WL 81296 (E.D.Pa„ July 13, 1989) (unpublished)). In Roselli, we granted summary judgment in favor of a manufacturer of a coffee maker after plaintiff discarded the coffee pot which shattered in her hand.

DeWeese claims that Roselli is distinguishable from this case. He points to Anchor Hocking’s answers to interrogatories, in which Anchor Hocking admits that the type of pitcher which is allegedly involved in this case is not designed to withstand liquids which are at or near the boiling point. See, Reproduced record at 22-31. Thus, DeWeese contends, Anchor Hocking is not prejudiced in preparing a defense because an inspection of the discarded pitcher would serve no useful purpose. While we find this argument persuasive, we are constrained to affirm. DeWeese’s failure to preserve the pitcher is fatal in a much more fundamental respect — without the pitcher, there is simply no evidence tending to establish that the pitcher involved in this case was manufactured by Anchor Hocking or sold by Lewis Brothers.

In order to establish a successful cause of action in products liability, a plaintiff must prove that a defect in a product proximately caused injury to him or her, which defect existed at the time the product left defendant’s control. Roselli, supra, at 410 Pa.Super. 228-229, 599 A.2d 685; Dauphin Deposit Bank and Trust Co. v. Toyota Motor Corp., 408 Pa.Super. 256, 596 A.2d 845 (1991). A plaintiff must also establish that the injuries were caused by a product of a particular manufacturer. Berkebile v. Brantly Helicopter, 462 Pa. 83, 337 A.2d 893 (1975). “Summary judgment is proper when the plaintiff has failed to establish that the defendant’s products were the cause of plaintiffs injury.” Eckenrod v. GAF Corp., 375 Pa.Super. 187, 191, 544 A.2d 50, 52 (1988), alloc. denied, 520 Pa. 605, 553 A.2d 968 (1989).

Here, DeWeese testified that he could not recall the type of pitcher he used to fill the chafing dishes on the day of the accident. When asked how many pitchers were kept in the club’s storage area, DeWeese testified that there were more than a dozen. DeWeese’s deposition, at 23. He further testified:

Q: Were the pitchers all the same? Did they look the same or were there differences?
A: There were differences.
Q: Can you recall how many types of pitchers there were?
A: At a minimum, three.
Q: Would you have any way of knowing if you had actually used this particular pitcher before?
A: No, sir.

Id. DeWeese acknowledged that he did not choose a particular type of pitcher to fill the chafing dishes, Id. at 27, and that he did not know who manufactured the pitcher he used. Id. at 40.

Robert Duhon, the general manager of the club, testified that although the club purchased Anchor Hocking pitchers from Lewis Brothers, he had no personal knowledge of the type of pitcher DeWeese used. Duhon’s deposition, at 36-37. In fact, the only evidence in the record which indicates that Deweese used an Anchor Hocking pitcher is in a letter written by Jane Doerfler, the club’s office manager at the time of DeWeese’s accident. Reproduced record, at 232-239. Ms. Doerfler concludes, in response to an investigatory letter sent by DeWeese’s counsel inquiring as to the manufacturer of the pitcher, that Anchor Hocking manufactured and Lewis Brothers sold the pitcher. After reviewing the letter, however, which predates DeWeese’s complaint, it becomes evident that it was used to form the basis for the factual allegations in his complaint.

It is well-settled that a party may not defeat a motion for summary judgment by relying on the allegations of his complaint. Rather, he must present depositions, affidavits, or other acceptable documents that show there is a factual issue for a jury’s consideration. Brecher v. Cutler, 396 Pa.Super. 211, 578 A.2d 481 (1990). Ms. Doerfler’s conclusions have not been presented by affidavit, deposition, or part of any verified discovery. We cannot consider her statement, which was procured in an effort to establish factual allegations for DeWeese’s complaint, as raising a factual issue regarding the identity of the pitcher which caused DeWeese’s injury.

The only conclusion one can draw, when viewing the depositions and answers to interrogatories submitted in this case most favorably to DeWeese, is that the club purchased several Anchor Hocking pitchers from Lewis Brothers. There is no testimony or reliable document, however, which tends to establish that DeWeese was injured by one of those pitchers on December 1, 1985. Thus, even though DeWeese argues persuasively that Roselli should be limited to cases where the allegedly defective component is unique to the discarded product, his failure to preserve the shattered pitcher has precluded him from raising a genuine issue of material fact regarding the identity of its manufacturer and seller. Summary judgment was properly awarded on this basis in favor of Anchor Hocking and Lewis Brothers.

Order affirmed.

McEWEN, J., concurs in the result.

Concurring statement by FORD ELLIOTT, J.

FORD ELLIOTT, Judge,

concurring:

I join in the majority’s decision to affirm the order granting summary judgment based on its determination that appellant was unable to establish that Anchor Hocking manufactured the subject pitcher.

However, I respectfully disagree with the majority’s discussion of, and reliance upon, Roselli v. General Electric Co., 410 Pa.Super. 223, 599 A.2d 685 (1991), appeal discontinued (1993). As the author of Troy v. Kampgrounds of America, Inc., 399 Pa.Super. 41, 581 A.2d 665 (1990), I agree with Judge Del Sole’s dissent in Roselli. As Judge Del Sole correctly observes:

In a case such as this where the product no longer exists and cannot be examined by either party, the plaintiff may recover under the ‘malfunction’ theory of product liability, which concerns circumstantial evidence of a product malfunction. This theory ‘permits a plaintiff to prove defect in a product with evidence of the occurrence of a malfunction and with evidence eliminating abnormal use or reasonable secondary causes for the malfunction.’ Troy v. Kampgrounds of America, Inc., 399 Pa.Super. 41, 581 A.2d 665 (1990).

Roselli, 410 Pa.Super. at 230, 599 A.2d at 689 (dissent by Del Sole, J.).

Thus, to the extent that the majority relies upon Roselli to affirm the order granting summary judgment, I disagree. I believe that had appellant been able to identify Anchor Hocking as the manufacturer of the pitcher, then under the “malfunction theory” this case would have survived beyond the summary judgment stage. It is only because of appellant’s failure to identify the manufacturer that I concur with the majority’s decision to affirm the order granting summary judgment.

      . In his order directing immediate transmittal of the record to Superior Court, Judge Johnson indicated that he would file an opinion pursuant to Pa.R.A.P., Rule 1925, 42 Pa.C.S.A., "at a later date." As of the date of filing in this case, we have not received Judge Johnson’s opinion. Since the parties’ summary judgment motions (and their briefs to this Court) so clearly rely on Roselli, however, we have a clear picture of the issues involved and find a remand for an opinion unnecessary.

      . Even if we could properly consider this letter, it is apparent that Ms. Doerfler’s conclusion is based not on personal knowledge, but on an invoice which shows that the club purchased six Anchor Hocking pitchers from Lewis Brothers in 1984. Thus, the letter establishes nothing more than what we conclude below; the club purchased several Anchor Hocking pitchers. There is simply no testimony in this record which would raise a factual issue regarding DeWeese's assertion that he was injured by one of Anchor Hocking’s pitchers.

      . The United States District Court has interpreted Roselli in this manner. In Lee v. Boyle-Midway Household Products, 792 F.Supp. 1001, 1005 (W.D.Pa.1992) (citing Roselli), the district court wrote: "Under Pennsylvania law, in a case in which plaintiff does not allege a defect present in all of defendant's products, a defendant in a products liability case is entitled to summary judgment when loss or destruction of evidence deprives the defense of the most direct means of countering plaintiff’s allegations.” We do not read Roselli’s holding as being limited to cases where a plaintiff's complaint alleges a defect not present in all of a manufacturer’s products although we agree that the qualification is appropriate. As we note above, however, our agreement does not support reversal in this case, because DeWeese simply has not established a factual issue regarding the manufacturer of the allegedly defective water pitcher.


source: Caselaw Access Project

author: BROSKY, Judge.

license: Public Domain

text:
    628 A.2d 425
    David KATZEFF and Chester Miller v. Anthony FAZIO T/D/B/A Sol Sieff Produce Co., Appellant.
    Superior Court of Pennsylvania.
    Argued April 29, 1993.
    Filed July 14, 1993.

      John M. Purcell, Uniontown, for appellant.
    Charles C. Gentile, Uniontown, for appellees.
    Before ROWLEY, President Judge and TAMILI A and BROSKY, JJ.
   BROSKY, Judge.

These consolidated appeals are from the final judgments entered in favor of appellees. Appellant presents the following issues for our review: (1) whether the trial court erred in permitting the jury to award attorneys’ fees based upon the principal and interest due rather than on the principal balance due as required by the parties’ agreement; and (2) whether the trial court erred in permitting the jury to award compound interest in calculating the amount of the verdict. For the reasons set forth below, we vacate the judgments and remand for a recalculation of the verdicts in accordance with the following discussion.

Before proceeding to consider the merits of appellant’s claims it is necessary to recount the relevant facts of this case. Appellees, David Katzeff and Chester Miller, were partners in the Sol Sieff Produce Company. In 1985, appellees sold the business to Myra Gaziano and appellant, Anthony Fazio. Approximately one-half of the purchase price of the business was paid for by Mrs. Gaziano and appellant. The remainder of the purchase price was secured by judgment notes, payable to each of the appellees, pursuant to which the price was to be paid in monthly installments over a four-year period. The monthly payment schedule included payment of interest on the debt at a rate of ten percent (10%) per annum. As a guarantee of his payment of the debt, appellant placed securities in escrow.

Appellant subsequently acquired Mrs. Gaziano’s interest in the Sol Sieff Company in June, 1986. As a result, the prior notes to appellees were refinanced by new judgment notes in the sum of $154,912.25 to Chester Miller and $147,709.92 to David Katzeff. The judgment notes again provided for interest to be paid at a rate of ten percent (10%) per annum. The debt also continued to be paid in monthly installments of principal and interest extending over a three-year period. In addition, the new judgment notes authorized appellees to confess judgment upon the principal balance and interest owed in the event of a default by appellant. The judgment notes further provided for attorneys’ fees in the amount of ten percent (10%) of the principal balance or $250.00, whichever was greater.

In September or October of 1987, appellant met with appellees to discuss alternative payment arrangements on the notes. Appellant wanted to reduce his monthly payments by approximately one-half. Appellees indicated that they would accept this arrangement and instructed their counsel to draft a new agreement and amortization schedule. Under the terms of the proposed arrangement, appellant’s payments would be reduced to twenty five hundred dollars ($2,500.00) per month until June, 1989. However, appellant would then be required to pay the entire balance of the purchase price in the final installment. Appellant disagreed with the final “balloon” payment and refused to sign the proposed agreement. Appellant nevertheless reduced his monthly payments under the prior judgment notes to $2,500.00. Appellees accepted the reduced payments and applied them towards the principal and interest on the debt in accordance with the revised amortization schedules.

Appellees received appellant’s last payment in February, 1989. When no further payments were forthcoming, appellees confessed judgment upon the notes in September, 1989. After appellees sought to execute on the securities held in escrow, appellant filed petitions to open the judgments. The petitions were granted in April, 1990 and disputed issues of fact were scheduled to be tried by a jury. These matters were consolidated for trial which was ultimately held in January, 1992. In determining the amount to which appellees were entitled, the jury was permitted to consider calculations, supplied by appellees’ expert witness, in which the interest was compounded and appellees’ attorneys’ fees were based on the compounded balance, ie., the amount of the principal plus monthly compounded interest, rather than simply upon the unpaid principal balance. Appellant objected to the jury’s consideration of this evidence and requested that the jury be given binding instructions that the awards were to be calculated in accordance with the terms of the judgment notes. The trial court denied appellant’s request and issued no instructions to the jury. The jury subsequently found in favor of appellees and awarded appellees the amounts calculated by appellees’ expert. Appellant filed timely post-trial motions challenging the jury’s consideration of the expert’s calculations and the trial court’s refusal to issue binding instructions. The trial court denied appellant’s post-trial motions. Appellant reduced the verdicts to final judgment and thereafter initiated these timely appeals which were later consolidated for review.

Appellant first contends that the trial court erred in permitting the jury to consider extrinsic evidence in calculating the attorney’s fees to which appellees were entitled. Appellant also asserts that the jury should have been instructed to determine the attorney’s fees in accordance with the terms of the judgment notes and amortization schedules appended thereto. Appellant’s arguments appear to challenge the trial court’s determination that the parties’ agreement was ambiguous with respect to the method of calculating attorney’s fees. Appellant theorizes that because the agreement is unambiguous, the jury should not have been permitted to consider extrinsic evidence explaining the non-existent ambiguity and should have been instructed to calculate the attorney’s fees in accordance with the judgment notes. We agree with appellant that the trial court erroneously found the judgment notes and amortization schedules to be ambiguous.

The judgment notes represent appellant’s promise to pay money pursuant to specific terms. As such, they are not substantially different from any other type of contract and must be evaluated in accordance with the general principles which govern our construction of all contracts. With respect to matters of contractual interpretation, our Supreme Court has observed:

Determining the intention of the parties is a paramount consideration in the interpretation of any contract. The intent of the parties is to be ascertained from the document itself when the terms are clear and unambiguous. However, ... where an ambiguity exists, parol evidence is admissible to explain or clarify or resolve the ambiguity, irrespective of whether the ambiguity is created by the language of the instrument or by extrinsic or collateral circumstances—
A contract is ambiguous if it is reasonably susceptible of different constructions and capable of being understood in more than one sense. The court, as a matter of law, determines the existence of an ambiguity and interprets the contract whereas the resolution of conflicting parol evidence relevant to what the parties intended by the ambiguous provision is for the trier of fact.

Hutchinson v. Sunbeam Coal Corp., 513 Pa. 192, 200-201, 519 A.2d 385, 389-390 (1986) (citations and quotation marks omitted). Accord Steuart v. McChesney, 498 Pa. 45, 48-53, 444 A.2d 659, 661-663 (1982); N.E.A. Cross, Inc. v. National Fuel Gas Supply Corp., 410 Pa.Super. 451, 454-455, 600 A.2d 228, 229 (1991), allocatur denied, 530 Pa. 656, 608 A.2d 31 (1992); Vogel v. Berkley, 354 Pa.Super. 291, 296-297, 511 A.2d 878, 880-881 (1986); Z & L Lumber Co. of Atlasburg v. Nordquist, 348 Pa.Super. 580, 585-586, 502 A.2d 697, 700 (1985). Moreover, “[w]hether the trial court has correctly interpreted a writing, in ascertaining the legal duties which arise from it, is a question of law which this Court may review.” N.E.A. Cross, Inc. v. National Fuel Gas Supply Corp., 410 Pa.Super. at 454, 600 A.2d at 229. We will evaluate the documents evidencing the parties’ agreement and the trial court’s legal conclusions with these considerations in mind.

The relevant portions of the judgment notes are set forth as follows:

JUDGMENT NOTE
FOR VALUE RECEIVED, the undersigned, ANTHONY FAZIO, hereby promises to pay to CHESTER MILLER, the principal sum of $154,912.25, together with interest at the rate of 10% per annum from and after June 27, 1986, as follows: the sum of $4,998.58 shall be payable on the 27th day of July, 1986, and a like sum on the 27th day of each succeeding month thereafter through May 27, 1989, and a final payment in an amount sufficient to pay all remaining principal and accrued interest on June 27, 1989.
******
In the event the undersigned shall fail to pay any sum required to be paid under this Note, then, in such event, at the option of the holder hereof, the whole unpaid balance of the principal indebtedness, together with all interest thereon and all other sums due hereunder, shall become due and payable immediately without notice to the undersigned. Further, in the event of a default hereunder, the undersigned hereby empowers any attorney of any court of record within the United States or elsewhere to appear for the undersigned and, with or without one or more declarations filed, to confess judgment against the undersigned in favor of the holder hereof, as of any term for the above sum, together with costs of suit and attorney’s fees of 10% of the principal balance due or $250.00, whichever is greater.

Judgment Note to Chester Miller, dated 6/27/86 (Plaintiffs Exhibit 1) (emphasis added). Except for the name of the payee, the amount of principal and the amount of the monthly payment, the terms of the judgment note from appellant to David Katzeff are identical to those set forth in the note held by Chester Miller and thus will not be reiterated here. Mr. Katzeff s note provided that appellant owed the principal sum of $147,709.92, together with interest at the rate of 10% per annum, and that the principal and interest was payable in monthly installments in the sum of $4,763.85. Judgment Note to David Katzeff, dated 6/27/86 (Plaintiff’s Exhibit 7). The debt was payable over the same time period as that owed to Mr. Miller. Id. The parties later prepared revised amortization schedule pursuant to which appellant’s payments were reduced to $2,500 per month on each of the notes. See Plaintiffs Exhibit 4 (unexecuted agreement between Chester Miller, David Katzeff and Anthony Fazio and revised amortization schedules).

A careful review of the judgment notes discloses that they do not expressly explain the meaning of the phrase “principal balance.” However, the notes set forth installment payment plans which are incorporated into amortization schedules attached and made part of the judgment notes. See Plaintiffs Exhibits 1 and 7; (Judgment notes and amortization schedules; the amortization schedules for David Katzeff and Chester Miller are respectively attached hereto as Appendix A and Appendix B); Plaintiffs Exhibit 4 (unexecuted agreement and revised amortization schedules; the amortization schedules for David Katzeff and Chester Miller are respectively attached hereto as Appendix C and Appendix D). The amortization schedules provide a mathematical definition of the phrase “principal balance” pursuant to which the principal balance is calculated by subtracting the monthly payment of principal from the principal amount of the loan, i.e.,

principal balance = principal of loan - monthly principal.

See Appendices A-D (amortization schedules). Following initial payment on the debt, the amortization schedules use the same formula for determining the new principal balance, i.e.,

new principal balance = old principal balance - monthly principal.

See Appendices A-D (amortization schedules).

The parties’ definition of principal balance clearly indicates that the parties intended the phrase “principal balance” to include only the unpaid principal amount of the loan less any payments of principal thereon. There is neither a patent nor a latent ambiguity contained in the documents which renders the term “principal balance” reasonably susceptible to more than one interpretation. Rather, it is evident from the language utilized in the judgment notes and amortization schedules that the parties intended the phrase “principal balance,” as used in the judgment notes, to have the same meaning as that provided in the amortization schedules. Despite this clear and unambiguous expression of the parties’ intent, the trial court nevertheless proceeded to consider extrinsic evidence supplied by appellees to create an otherwise nonexistent ambiguity in the documents. As indicated by our Supreme Court:

When the parties have reduced their agreement to writing, the writing is to be taken to be the final expression of their intention. Where the contract evidences care in its preparation, it will be presumed that its words were employed deliberately and with intention. In determining what the parties intended by their contract, the law must look to what they clearly expressed. Courts in interpreting a contract do not assume that its language was chosen carelessly. Neither can it be assumed that the parties were ignorant of the meaning of the language employed____ [RJesort to the plain meaning of language hinders parties dissatisfied with their agreement from creating a myth as to the true meaning of the agreement through subsequently exposed extrinsic evidence---- In holding that an ambiguity is present in an agreement, a court must not rely upon a strained contrivancy to establish one; scarcely an agreement could be conceived that might not be unreasonably contrived into the appearance of ambiguity. Thus, the meaning of language cannot be distorted to establish the ambiguity.

Steuart v. McChesney, 498 Pa. at 51-53, 444 A.2d at 662-663 (citations and quotation marks omitted). This court has further observed that “[a] contract is not ambiguous if the court can determine its meaning with a knowledge of the facts on which its meaning depends. The fact that the parties do not agree upon the proper interpretation does not necessarily render the contract ambiguous.” Vogel v. Berkley, 354 Pa.Super. at 297, 511 A.2d at 881 (citation omitted). Accord Z & L Lumber Co. of Atlasburg v. Nordquist, 348 Pa.Super. at 586, 502 A.2d at 700.

The terms of the judgment notes were clear and unambiguous, and it was improper for the trial court to rely upon extrinsic evidence to distort the plain meaning of the language to establish an ambiguity. The trial court further erred in permitting the jury to consider extrinsic evidence to explain the parties’ intent and in failing to appropriately instruct the jury regarding the calculation of attorney’s fees. Although such defects would ordinarily require the grant of a new trial, the errors in this case only affected the amount of the jury’s verdict and can thus be alleviated by reassessing the award of attorney’s fees. We further observe that appellant is not contesting the jury’s findings regarding his liability for the debt; rather, appellant only requests that the attorney’s fees be determined in the manner provided in the judgment notes. The judgments are therefore vacated and these matters are remanded to the trial court for the recalculation of attorney’s fees at a rate of 10% of the unpaid balance remaining on the principal indebtedness.

Appellant next challenges the trial court’s determination that the parties agreed upon the payment of compound interest. In analyzing this issue, we note that interest is compounded when it is added to the principal, the result of which is treated as a new principal for calculating the interest due for the next term. 20 Pennsylvania Law Encyclopedia § 21 at 40. See also Buck v. Mutual Building & Loan Association of Altoona, 49 Pa.Super. 128, 132 (1912) (indicating that compounding of interest exists where interest is added to the principal and then interest is charged on the aggregate). It also has been recognized that interest is not compounded in situations where a payment is applied first to the interest due and second to the reduction of principal, with the interest for the next term computed on the remaining principal. See 20 Pennsylvania Law Encyclopedia § 21 at 41; Ralph Myers Contracting Corp. v. Commonwealth of Pennsylvania, Department of Transportation, 496 Pa. 197, 204, 436 A.2d 612, 615 (1981); Buck v. Mutual Building & Loan Association of Altoona, 49 Pa.Super. at 130-132. Our Supreme Court has further indicated that “[i]t is fairly well established that the law in this Commonwealth frowns upon compound interest and as such will only permit compound interest on a debt when the parties have provided for it by agreement or a statute expressly authorizes it.” Powell v. Retirement Board of Allegheny, 431 Pa. 396, 405-406, 246 A.2d 110, 115 (1968). Accord Ralph Myers Contracting Corp. v. Commonwealth of Pennsylvania, Department of Transpor tation, 496 Pa. at 201, 436 A.2d at 614. We must therefore examine the documents encompassing the parties’ agreement to ascertain whether the parties intended to provide for the payment of compound interest.

The judgment notes provide for the payment of interest at a rate of 10% per annum. Although the notes do not indicate whether the interest was to be compounded, the judgment notes do contain a specific installment plan for repaying the debt which is set forth in the amortization schedules. See Appendices A-D (amortization schedules). The amortization schedules demonstrate that the amount of interest which has accrued on the debt is based only upon the amount of the unpaid principal balance. See id. As we previously observed, the parties provided that the principal balance is to be calculated by subtracting the monthly principal payment from the unpaid principal balance remaining on the debt. See id. Thus, the principal balance only involves the principal amount of the debt less any payments of principal thereon and does not include any accrued interest. Because interest is only calculated on the amount of the unpaid principal rather than on the amount of the unpaid principal plus interest, the interest is not compounded. See 20 Pennsylvania Law Encyclopedia § 21 at 40 and Buck v. Mutual Building & Loan Association of Altoona, supra.

We further note that the amortization schedules in this case are substantially similar to the repayment plan at issue in Buck v. Mutual Building & Loan Association of Altoona, supra, in which the parties’ agreed to pay the principal of the loan in monthly installments together with interest accruing thereon. In evaluating the payment schedule in Buck, this court concluded that it did not provide for the payment of compound interest but followed the accepted rule in which a partial payment on a contract bearing interest is to be applied first to the accrued interest with the balance applied towards the reduction of principal.

There is no significant difference between the payment agreement in Buck and the amortization schedules present in this case and our reasoning therein compels the same conclusion here: the judgment notes and amortization schedules simply do not provide for the payment of compound interest. Because the parties’ never agreed to the payment of compound interest on the debt, the trial court erred in permitting the jury to award compound interest. Consequently, the judgments must be vacated and remanded for recalculation of the interest.

Judgments vacated. Remanded for further proceedings consistent with the foregoing discussion. Jurisdiction relinquished.

APPENDIX A

AMORTIZATION SCHEDULE FOR NOTE FROM ANTHONY FAZIO TO DAVID KATZEFF, DATED JUNE 27, 1986, IN THE PRINCIPAL AMOUNT OF $147,709.92, TOGETHER WITH INTEREST AT 10% PER ANNUM

DATE PAYMENT INTEREST PRINCIPAL PRINCIPAL BALANCE

$147,709.92

07- 27-86 $4,763.85 $1,230.92 $3,532.93 144,176.99

08- 27-86 4.763.85 1,201.47 3,562.38 140,614.61

09- 27-86 4.763.85 1,171.79 3,592.06 137.022.55

10- 27-86 4.763.85 1,141.85 3,622.00 133.400.55

11- 27-86 4.763.85 1,111.67 3,652.18 129,748.37

12- 27-86 4.763.85 1,081.24 $3,682.61 $126,065.76

01- 27-87 4.763.85 1,050.55 3,713.30 122,352.46

02- 27-87 4.763.85 1,019.60 3,744.25 118,608.21

03- 27-87 4.763.85 988.40 3,775.45 114,832.76

04- 27-87 4.763.85 956.94 3,806.91 111,025.85

05- 27-87 4.763.85 925.22 3,838.63 107,187.22

06- 27-87 4.763.85 893.23 3,870.62 103,316.60

07- 27-87 4.763.85 860.97 3,902.88 99,413.72

DATE PAYMENT INTEREST PRINCIPAL PRINCIPAL BALANCE

08- 27-87 4.763.85 828.45 3,935.40 95,478.32

09- 27-87 4.763.85 795.65 3,968.20 91,510.12

10- 27-87 4.763.85 762.58 4,001.27 87,508.85

11- 27-87 4.763.85 729.24 4,034.61 83.474.24

12- 27-87 4.763.85 695.62 4.068.23 79,406.01

01- 27-88 4.763.85 661.72 4,102.13 75,303.88

02- 27-88 4.763.85 627.53 4,136.32 71,167.56

03- 27-88 4.763.85 593.06 4,170.79 66,996.77

04- 27-88 4.763.85 558.31 4,205.54 62,791.23

05- 27-88 4.763.85 523.26 4,240.59 58,550.64

06- 27-88 4.763.85 487.92 4,275.93 54,274.71

07- 27-88 4.763.85 452.29 4,311.56 49,963.15

08- 27-88 4.763.85 416.36 4,347.49 45,615.66

09- 27-88 4.763.85 380.13 4,383.72 41,231.94

10- 27-88 4.763.85 343.60 4,420.25 36.811.69

11- 27-88 4.763.85 306.76 4,457.09 32,354.60

01- 27-89 4.763.85 232.17 4,531.68 23.328.69

02- 27-89 4.763.85 194.41 4,569.44 18.759.25

03- 27-89 4.763.85 156.33 4,607.52 14,151.73

04- 27-89 4.763.85 117.93 4,645.92 9,505.81

05- 27-89 4.763.85 79.22 4,684.63 4,821.18

06- 27-89 4,861.36 40.18 4,821.18 0.00

APPENDIX B

AMORTIZATION SCHEDULE FOR NOTE FROM ANTHONY FAZIO TO CHESTER MILLER, DATED JUNE 27, 1986, IN THE PRINCIPAL AMOUNT OF $154,912.25, TOGETHER WITH INTEREST AT 10% PER ANNUM

PAYMENT INTEREST PRINCIPAL DATE PRINCIPAL BALANCE

$154,912.25

07- 27-86 $4,998.58 $1,290.94 $3,707.64 151.204.61

08- 27-86 4.998.58 1,260.04 3,738.54 147.466.07

09- 27-86 4.998.58 1,228.88 3,769.70 143,696.37

10- 27-86 4.998.58 1,197.47 3,801.11 139,895.26

11- 27-86 4.998.58 1,165.79 3,832.79 136,062.47

12- 27-86 4.998.58 1,133.85 3,864.73 132,197.74

01- 27-87 4.998.58 1,101.65 3,896.93 128,300.81

02- 27-87 4.998.58 1,069.17 3.929.41 124,371.40

03- 27-87 4.998.58 1,036.43 3,962.15 120,409.25

04- 27-87 4.998.58 1,003.41 3,995.17 116.414.08

05- 27-87 4.998.58 970.12 4,028.46 112.385.62

06- 27-87 4.998.58 936.55 4.062.03 108,323.59

07- 27-87 4.998.58 902.70 4,095.88 104,227.71

08- 27-87 4.998.58 868.56 4,130.02 100,097.69

09- 27-87 4.998.58 834.15 4,164.43 95,933.26

10- 27-87 4.998.58 799.44 4,199.14 91,734.12

11- 27-87 4.998.58 764.45 4,234.13 87,499.99

12- 27-87 4.998.58 729.17 4.269.41 83.230.58

01- 27-88 4.998.58 693.59 4,304.99 78.925.59

02- 27-88 4.998.58 657.71 4,340.87 74,584.72

03- 27-88 4.998.58 621.54 4.377.04 70,207.68

04- 27-88 4.998.58 585.06 4,413.52 65,794.16

05- 27-88 4.998.58 548.28 4,450.30 61,343.86

06- 27-88 4.998.58 511.20 4,487.38 56,856.48

07- 27-88 4.998.58 473.80 4,524.78 52,331.70

08- 27-88 4.998.58 436.10 4,562.48 47,769.22

09- 27-88 4.998.58 398.08 4.600.50 43,168.72

10- 27-88 4.998.58 359.74 4,638.84 38,529.88

11- 27-88 4.998.58 321.08 4.677.50 33,852.38

12- 27-88 4.998.58 282.10 $4,716.48 $29,135.90

01- 27-89 4.998.58 242.80 4,755.78 24,380.12

02- 27-89 4.998.58 203.17 4,795.41 19,584.71

03- 27-89 4.998.58 163.21 4.835.37 14,749.34

04- 27-89 4.998.58 122.91 4,875.67 9,873.67

05- 27-89 4.998.58 82.28 4,916.30 4,957.37

06- 27-89 4,998.68 41.31 4.957.37 0.00

APPENDIX C

AMORTIZATION SCHEDULE FOR NOTE FROM ANTHONY FAZIO TO DAVID KATZEFF INTEREST AT 10% PER ANNUM

DATE PAYMENT INTEREST PRINCIPAL PRINCIPAL BALANCE

$95,478.32

10/27/87 $2,500.00 $1591.30(60 days) $908.70 94,569.62

11/27/87 2.500.00 788.08 1711.92 92,857.70

12/27/87 2.500.00 773.81 1726.19 91,131.52

01/27/88 2.500.00 759.42 1740.58 89.390.93

02/27/88 2.500.00 744.92 1755.08 87,635.85

03/27/88 2.500.00 730.29 1769.71 85,866.14

04/27/88 2.500.00 715.55 1784.45 84,081.69

05/27/88 2.500.00 700'.68 1799.32 82,282.37

06/27/88 2.500.00 685.68 1814.32 80,468.05

07/27/88 2.500.00 670.56 1829.44 78,638.61

08/27/88 2.500.00 655.32 1844.68 76.793.93

09/27/88 2.600.00 639.94 1860.06 74,933.87

10/27/88 2,600.00 624.44 1875.56 73.058.31

11/27/88 2.500.00 608.81 1891.19 71,167.12

12/27/88 2.500.00 593.05 1906.95 69,260.17

01/27/89 2.500.00 577.16 1922.84 67.337.33

02/27/89 2.500.00 561.14 1938.86 65,398.47

03/27/89 2.500.00 544.92 1955.08 63,443.39

04/27/89 2.600.00 528.69 1971.31 61,472.08

05/27/89 2,500.00 512.26 1987.74 59.484.34

06/27/89 59,980.04 495.70 59,484.34 _00

14,601.72 95.478.32

APPENDIX D

AMORTIZATION SCHEDULE FOR NOTE FROM ANTHONY FAZIO TO CHESTER MILLER INTEREST AT 10% PER ANNUM

DATE PAYMENT INTEREST PRINCIPAL PRINCIPAL BALANCE

$100,097.69

10/27/87 $ 1,668.29 831.71 99,265.98

11/27/87 827.21 1672.79 97,593.19

12/27/87 813.27 1686.73 95.906.46

01/27/88 2.500.00 799.22 1700.78 94,205.68

02/27/88 2.500.00 785.04 1714.96 92.490.72

03/27/88 2.500.00 770.75 1729.25 90.761.47

06/27/88 2.500.00 727.16 $1772.84 $85,486.78

05/27/88 2.500.00 741.81 1758.19 87,259.62

04/27/88 756.34 1743.66

07/27/88 2.500.00 712.38 1787.62 83.699.16

08/27/88 09/27/88 2.500.00 2.500.00 697.49 682.47 1802.51 1817.53 81,896.05 80,079.12

10/27/88 2.500.00 667.32 1832.68 78,246.44

11/27/88 2.500.00 652.05 1847.95 76,398.49

12/27/88 2.500.00 636.65 1863.35 74,535.14

01/27/89 2.500.00 621.12 1878.88 72,656.26

02/27/89 2.500.00 605.46 1894.54 70.761.72

03/27/89 2.500.00 589.68 1910.32 68,851.40

04/27/89 2.500.00 573.76 1926.24 66.925.16

05/27/89 2.500.00 557.70 1942.30 64,982.86

06/27/89 65,524.38 541.52 64,982.86 _00_

15,426.69 100,097.69

      . Sol Sieff was a wholesale fresh fruit and vegetable distributor which sold fresh produce to retail supermarkets, restaurants, hotels and other institutions in Pennsylvania, Maryland and West Virginia.

      . The copies of the exhibits contained in Appendix A and B are derived from appellant’s exhibits C and D, which were introduced at the hearing on appellant’s petition to open the confessed judgments. Appellant’s exhibits are identical to those supplied by appellees; we have only utilized appellant’s exhibits due to the poor legibility of appellees’ exhibits.

      . In fact, appellees’ intent that "principal balance" refers only to the principal unpaid balance remaining on the loan is evidenced by the calculations contained in their confession of judgment complaints. See David Katzeff Complaint, filed 9/29/89 (identifying principal balance as $65,398.47 and attorney’s fees as 10% of this sum, or $6,539.85) and Chester Miller Complaint, filed 9/29/89 (providing that principal balance is $70,761.72 and that attorney’s fees are 10% of this sum or $7,076.17). Appellees’ reiterate these same calculations in their praecipes for writs of execution. See Praecipes for Writs of Execution, filed 10/6/89.

      . Evidence adduced at trial indicated that at that time, the unpaid principal remaining on the Katzeff note was $65,398.47 and the unpaid principal remaining on the Miller note was $70,761.72 because no further payments were received after February, 1989. See N.T. 1/14/92-1/16/92 at 48 and 96; Appendices C and D (revised amortization schedules). The trial court is directed to utilize these principal amounts in its calculations.

      . Upon remand, the trial court is again directed to utilize the unpaid balances in the principal sums of $65,398.47 and $70,761.72, respectively owed to Mr. Katzeff and Mr. Miller, in determining the amount of interest to which appellees are entitled.


author: HESTER, Judge.

text:
    628 A.2d 435
    Marvin SCRIBNER and Sandra Scribner, h/w, Appellants, v. MACK TRUCKS v. PROTECTION TECHNOLOGY, INC.
    Superior Court of Pennsylvania.
    Argued May 11, 1993.
    Filed July 19, 1993.

      Richard J. Orloski, Allentown, for appellants.
    Maureen A. Jordan, Bethlehem, for Mack Trucks, appellee.
    Before BECK, POPOVICH and HESTER, JJ.
   HESTER, Judge.

Marvin and Sandra Scribner appeal from the November 24, 1992 order entered by the Court of Common Pleas of Northampton County which granted a petition requesting a change of venue from Northampton County to Lehigh County. Change of venue was requested by Mack Trucks, Inc. (“Mack Trucks”), appellee, in this personal injury action. Appellants argue that the trial court failed to adequately consider their choice of forum. They also contend the record fails to establish that their selection of forum was inconvenient for the other parties to this action. We affirm.

The record reveals the following. Mr. Scribner was employed as a security guard with Protection Technology, Inc., which was under contract with appellee to provide security services at a garage owned and operated by appellee in Lehigh County. Scribner allegedly was injured seriously after he slipped and fell on an accumulation of oil which seeped from a storage tank located in the garage. Appellants instituted this action in Northampton County seeking recovery for damages that they sustained as a result of Mr. Scribner’s fall. They claimed Mack Truck was liable since it had notice of the condition but failed to correct it. Mack Trucks joined Protection Technology, Inc. as a third-party defendant.

On July 29, 1992, Mack Trucks petitioned to transfer this action to Lehigh County pursuant to Pa.R.C.P. 1006(d)(1), which provides: “For the convenience of parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought.” When appellants failed to contest the petition requesting the Northampton court to transfer venue, the court granted the petition and transferred venue.

Subsequently, appellants filed a petition to vacate the order on the basis that they did not receive proper notice. The notice appellants received stated only that appellee intended to file a petition requesting a change of venue; it did not indicate the petition was to be presented to the court. On that basis, the trial court vacated the order and rescheduled argument on the original petition to transfer venue. At the hearing, Mack Trucks argued that Northampton was an inconvenient forum for the parties and witnesses since they worked and resided elsewhere. It further contended that transferring venue to Lehigh County would be more convenient for all concerned since: (1) appellants are residents of Lehigh County; (2) the accident giving rise to the lawsuit occurred there; and (3) all witnesses to the accident reside and work in Lehigh County. Based on these factors, the Northampton Court entered an order transferring venue to Lehigh County as the most convenient forum for all parties. This appeal followed.

Appellants contend that their original selection of forum should have been accorded the greatest weight by the common pleas court. In support, they rely upon Vogel v. National Rail Passenger Corp., 370 Pa.Super. 315, 536 A.2d 422 (1988); and Hosiery Corporation of America v. Rich, 327 Pa.Super. 472, 476 A.2d 50 (1984) (plaintiffs right to choose a forum will only be disturbed for weighty reasons). They further assert that Mack Trucks bears a heavy burden to show that the forum appellants selected is not convenient and that the alternate forum is more convenient for all parties. Korn v. Marvin Fives Food Equipment Corp., 362 Pa.Super. 559, 524 A.2d 1380 (1987); Petty v. Suburban General Hospital, 363 Pa.Super. 277, 525 A.2d 1230 (1987). Moreover, appellants note that to support a change of venue, appellee is required to establish such oppressiveness that: (1) the vexation to the moving party is out of all proportion to the non-moving party’s convenience, and (2) the forum chosen was inappropriate in light of the forum court’s administrative or legal concerns. Id. Appellants finally claim that the grounds asserted by appellee and set forth in the record do not support such a finding.

Our standard of review is clear. In Okkerse v. Howe, 521 Pa. 509, 517-18, 556 A.2d 827, 831-32 (1989) (emphasis in original), our Supreme Court stated:

Our Rules of Civil Procedure provide a plaintiff with options as to where to bring suit, and this Court has emphatically stated that the choice of forum by a plaintiff is entitled to weighty consideration. Walker v. Ohio River Co., 416 Pa. 149, 152, 205 A.2d 43, 43 (1964). Nevertheless, a plaintiffs choice of forum is not unassailable and the availability of a forum non conveniens challenge is a necessary counterbalance to insure fairness and practicality. See Ernest v. Fox Pool Corp., 341 Pa.Super. 71, 491 A.2d 154 (1985). Because, however, of the weight accorded to the plaintiffs original choice courts have held that he or she should not be deprived of the advantages presumed to come from that choice
“unless the defendant clearly adduces facts that ‘either (1) establish such oppressiveness and vexation to a defendant as to be out of all proportion to plaintiffs convenience ... or (2) make trial in the chosen forum inappropriate because of considerations affecting the court’s own private and public interest factors’ but unless the balance is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed____”
Reyna v. Piper Aircraft, Co., 680 F.2d 149, 159 (3d Cir. 1980), citing Koster v. Lumbermens Mutual Casualty Co., 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067 (1947) and Gulf Oil v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); cited with approval in Korn v. Marvin Fives Food Equipment, 362 Pa.Super. 559, 563, 524 A.2d 1380, 1384 (1987).

Thus, the party seeking a change of venue bears a heavy burden in justifying the request, and it has been held consistently that this burden includes demonstrating the claimed hardships on the record. Id.

The factors which a trial judge must consider before ordering a transfer of venue include:

[T]he relative ease of access to sources of proof, availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of the premises, if a view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained. The court will weigh relative advantages and obstacles to a fair trial.
Factors of public interest also have a place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation.

Rini v. N.Y. Central R.R. Co., 429 Pa. 235, 239, 240 A.2d 372, 374 (1968). Pa.R.C.P. 1006(d) vests considerable discretion in the trial judge to determine whether to grant a petition for a venue change. Although a choice of forum is entitled to weighty consideration, the right of a plaintiff to choose a forum is not absolute. Wills v. Kaschak, 420 Pa.Super. 540, 617 A.2d 37 (1992).

We note that “[i]f there is any basis for the trial court’s decision to grant the petition to transfer venue, the decision must stand.” Shears v. Rigley, 424 Pa.Super. 559, 564, 623 A.2d 821, 824 (1993). (citation omitted). Moreover, the standard of review is one of abuse of discretion. Purcell v. Bryn Mawr Hospital, 525 Pa. 237, 579 A.2d 1282 (1990); Fox v. Pennsylvania Power & Light Co., 315 Pa.Super. 79, 461 A.2d 805 (1983). An “abuse of discretion is shown by a record of misapplication of the law, or judgment that is manifestly unreasonable, or motivated by partiality, prejudice, bias, or ill-will.” Page v. Ekbladh, 404 Pa.Super. 368, 371, 590 A.2d 1278, 1279 (1991). Finally, before a court can order a transfer it must find “that transfer is more convenient for both parties to the action or for the witnesses.” Nicolosi v. Fittin, 434 Pa. 133, 135, 252 A.2d 700, 701 (1969) (emphasis in original).

Applying this criteria to the present case, we do not find an abuse of discretion. Northampton County is an inconvenient forum for the witnesses and attorneys for both parties. None of the parties or witnesses work or reside in Northampton County, and it has little connection with the case since the accident did not occur there. On the other hand, Mack Trucks clearly established that ease of access to sources of proof best is obtained in Lehigh County. The accident occurred there, many of the witnesses live and work there, as do the attorneys for both parties. Thus, it is convenient for both parties.

It is clear that the trial court considered the reasons for appellants’ choice of forum. While it is true that Northampton County is much more current with its docket than is Lehigh County, the court determined that the inconvenience to the parties and witnesses outweighed appellants’ decision to file suit there. The fact that Mack Trucks did not establish that all of the witnesses live and work in Lehigh County, in our estimation, does not rise to an issue of material fact not resolved at the hearing. See Alford v. Philadelphia Coca-Cola Bottling Co., 366 Pa.Super. 510, 531 A.2d 792 (1987) (trial court can consider without supporting evidence such matters of public interest as the possibility of court congestion, the extent of involvement in the outcome of litigation, and the difficulties of applying foreign law); Vogel v. National R.R. Passenger Corp., supra (sufficient factors established in the record to support a change of venue).

Furthermore, Lehigh County is a convenient forum for all parties, even though appellants would prefer Northampton County for other reasons. The trial court specifically stated that it weighed this and other considerations against appellants’ choice of forum. It determined that Northampton County was an inconvenient forum as compared to Lehigh County which was a convenient forum for all parties. The relative weight to be given competing factors is a decision for the trial court. It is not our duty to to re-weigh the competing factors as long as the court addressed them. Id. Moreover, the factors cited in the trial court’s decision are supported by the record. Accordingly, we do not find an abuse of discretion in the order by the Court of Common Pleas of Northampton County transferring this action to Lehigh County. The citizens and facilities of Northampton County should not be burdened with the expense and inconvenience of trying a cause of action in their courts which has no connection with Northampton County.

Order affirmed.

      . The notice of appeal and the caption incorrectly state that the order from which the appeal lies is an order of the Court of Common Pleas of Lehigh County. The order appealed actually is an order entered by the Court of Common Pleas of Northampton County.

      . Our decision is not affected by the fact that venue over Mack Trucks was proper in Northampton County due to the fact that it conducts business there. See Pa.R.C.P. 2179(a). The question we consider is whether Northampton County is a convenient forum.


author: WIEAND, Judge.

text:
    628 A.2d 439
    In re JEFFREY S., Justin S., Jordon S., Joy S. Appeal of KATHLEEN S.
    Superior Court of Pennsylvania.
    Argued April 27, 1993.
    Filed July 20, 1993.

      Frederick Santacroce, Campbell, CA, for appellant.
    L. Carter Anderson, Montrose, for Children and Youth Services, participating party.
    Before CAVANAUGH, WIEAND and HOFFMAN, JJ.
   WIEAND, Judge.

By order dated October 26, 1992, Jeffrey S., Justin S., Jordon S. and Joy S. were adjudicated dependent and placed in the custody of Susquehanna County Services for Children and Youth (“C.Y.S.”) with directions. Kathleen S., the children’s mother, appealed.

A dependent child is one who “is without proper parental care or control____” 42 Pa.C.S. § 6302. Whether a child is lacking proper parental care and control encompasses two discrete questions: (1) Is the child at this moment without proper parental care or control? and (2) If so, is such care and control immediately available? In re J.C., 412 Pa.Super. 369, 373, 603 A.2d 627, 628 (1992); In re Justin S., 375 Pa.Super. 88, 99, 543 A.2d 1192, 1197 (1988); In re Anita H., 351 Pa.Super. 342, 344-345, 505 A.2d 1014, 1015 (1986). A finding of dependency must be supported by clear and convincing evidence. In re S.M., 418 Pa.Super. 359, 362, 614 A.2d 312, 313 (1992); In re Justin S., supra, 375 Pa.Super. at 99, 543 A.2d at 1197. “ The standard of “clear and convincing evidence” means “testimony [that] is so clear, direct, weighty, and convincing as to enable the [trier of facts] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” ’ ” In re Justin S., supra at 99-100, 543 A.2d at 1197, quoting In the Matter of Jackson, 302 Pa.Super. 369, 374, 448 A.2d 1087, 1089 (1982), quoting In re Jackson, 267 Pa.Super. 428, 431, 406 A.2d 1116, 1118 (1979). Without such evidence, a child cannot be adjudged dependent and must be returned promptly to his or her parent. In re Justin S., supra, 375 Pa.Super. at 99, 543 A.2d at 1197.

In the instant case, there is no evidence that the children are lacking proper parental care or control. There is a total absence of evidence that the children’s mother is unable or unwilling to provide such parental care or control. The worst that can be said of her conduct is that when the children began to accuse their father of abusing them sexually, she was confused and hesitant in believing that her husband would do such a thing. After her husband had pleaded guilty to criminal charges, however, she was prepared to accept fully her allegiance to her children and her responsibility for their care and control. There is not one iota of evidence that she cannot or would not provide proper parental care for her children.

In June, 1992, Kathleen S. became aware of allegations that her husband, the father of her children, had abused one or more of her sons. She consulted immediately with the pastor of the church where she and her husband were members and where her husband was a leader in the Sunday School Program. The pastor urged caution until there was more evidence. In July, however, Kathleen became aware that her daughter had also been abused and promptly contacted the authorities. After consulting with representatives of C.Y.S., she filed a petition for protection from abuse, and her husband was duly ordered to leave the home. On August 6, however, she called C.Y.S. to say that she wanted her husband to be allowed to return home. She was told that if he did return, the children could not remain. Kathleen then made arrangements for the children to live with her mother. This came to an end on September 8, when appellant entered a thirty (30) day, non-renewable agreement to place the children with C.Y.S. for temporary placement in foster homes. When Kathleen later expressed a desire to have her children returned, C.Y.S. filed a petition to have the children adjudicated dependent. This petition was heard on October 26, 1992, the same day on which the children’s father entered pleas of guilty to charges of sexually abusing some of his children.

After testimony of the foregoing history had been presented at the hearing, a C.Y.S. caseworker was asked for a recommendation and said that the children should remain in foster care. She said:

It is the opinion of the Agency that mother has displayed a great deal of love and affection for the children. However, there is a concern that mother was stating that she did not believe that the youngest child, Joy, had been abused by the father and she was minimizing the abuse of the other three children and she has also fluctuated in her support of the father in having him in the home and having him out of the home, so we are recommending that the children continue to remain in foster care and that the father have no contact with the children until the criminal issues are resolved.

The same witness suggested generally that in abuse cases the children have a tendency to blame the non-offending parent and recommended counselling. There was no evidence, however, that the children in this case were blaming their mother for their father’s misconduct. More importantly, there was no reason to believe that the appellant-mother would not cooperate in obtaining the counselling recommended by C.Y.S. Indeed, she is already receiving counselling, and her history has been one of total cooperation with C.Y.S. She cannot be faulted merely because, when her world was suddenly blown apart, she hesitated in confusion before severing the relationship with her husband. The husband is now serving a term of imprisonment, and the appellant-mother is prepared to resume her parental responsibilities to the children. There is not one iota of evidence, to repeat, that she is incapable, unwilling or unprepared to provide parental care for her children. She is entirely innocent of wrongdoing and, according to the record before this Court, a caring and loving parent.

Under these circumstances, the record does not support the trial court’s adjudication of dependency. The absence of evidence is not overcome by the opinion of a caseworker that abused children generally are inclined to blame the innocent parent and, therefore, these children should remain in foster care until future, indefinite arrangements can be made by the agency for counselling with the children.

“The fundamental purpose of proceedings under the Juvenile Act is to preserve the unity of the family. The care and protection of children are to be achieved in a family environment whenever possible.” In re Justin S., supra at 103, 543 A.2d at 1199. See also: 42 Pa.C.S. § 6301(b)(1), (3). Although a finding of abuse is sufficient under most circumstances to support an adjudication of dependency, a court cannot adjudge a child to be dependent where an innocent, caring and loving parent is ready, willing and able to provide the child with proper parental care and control.

The adjudication of dependency is reversed and set aside.

      . The children range in age from four (4) to nine (9) years.

      . The court’s directions were as follows:
      1. Said Agency shall prepare and implement a program of visitation of the children with their natural mother.
      2. Said Agency shall place the children in an approved foster home until further order of Court.
      3. The said Agency shall take all appropriate steps to obtain appropriate psychological and/or family counseling for the said children.
      4. The children’s father, David [S.], shall have no contact with the children until further order of Court.

      . The children's father is now serving a sentence of imprisonment.

      . By our decision we do not necessarily intend to overrule CYS’s recommendation that the children undergo counselling. If counselling has not already been done and is still deemed necessary, arrangements for counselling can be made cooperatively by CYS and the children’s mother.


author: OLSZEWSKI, Judge:

text:
    628 A.2d 441
    James Edward ROSE, Jr., Appellant, v. ALLENTOWN MORNING CALL, Bethlehem Globe-Times, Easton Express, WFMZ-TV, and WHXT Radio (Formerly WQQQ), Appellees.
    Superior Court of Pennsylvania.
    Argued June 10, 1993.
    Filed July 20, 1993.

      James E. Rose, Jr., appellant, pro se.
    Malcolm J. Gross, Allentown, for Allentown Morning Call, appellee.
    Before OLSZEWSKI, POPOVICH and CERCONE, JJ.
   OLSZEWSKI, Judge:

Appellant, James Edward Rose, Jr. [“Rose”], appeals the Honorable James Knoll Gardner’s order which denied Rose’s petition to open a judgment non pros entered against him. Judgment was entered after Rose failed to attend a pre-trial conference. He now claims that judgment should be opened because he did not receive actual notice of the conference. We disagree and affirm.

This is not the first petition to open a non pros judgment that the trial court entertained. In March of 1990, Rose filed a praecipe for writ of summons against the above-captioned defendants/appellees. Shortly thereafter, Bethlehem Globe-Times [“Bethlehem”] ruled Rose to file a complaint. Rose failed to do so, and judgment non pros was entered on May 16, 1990. In September, Rose finally filed the complaint seeking damages for defamation of character. Various preliminary objections were filed, including Bethlehem’s motion to strike on the basis of the non pros judgment in its favor. The trial judge denied Bethlehem’s motion to strike, but granted the other preliminary objections (relating to the specificity of the original pleading) and ordered Rose to file an amended complaint.

After the pleadings were closed, the trial court scheduled a status conference pursuant to Lehigh County Local Rule 239 for May 23,1991. The deputy court administrator sent notice by regular mail to all parties at the addresses listed of record. All parties, save Rose, attended the conference. Based on Rose’s absence, appellees moved to dismiss the complaint and the motions were granted. On June 21,1991, Rose petitioned the court to open the judgment non pros. The court denied Rose’s petition, and this timely appeal followed.

In order to successfully petition the trial court to open a judgment non pros, Rose was required to: (1) establish that he promptly filed a petition to open, (2) reasonably explain the reason behind the delay that caused the entry of judgment, and (3) state sufficient facts to establish a cause of action against the defendants. Abraham Zion Corp. v. After Six, 414 Pa.Super. 611, 607 A.2d 1105 (1992) (citing James Bros. Co. v. Union Banking & Trust Co., 432 Pa. 129, 247 A.2d 587 (1968)). The trial court held that Rose did not have a reasonable excuse for missing the status conference. “A request to open a judgment is one of grace and not of right and its grant or refusal is peculiarly a matter for the trial court’s discretion. We are loathe to reverse the exercise of the court’s equitable powers unless an abuse of discretion is clearly evident.” Id., 617, 607 A.2d at 1108 (quoting Nardueci v. Mason’s Discount Store, 518 Pa. 94, 98, 541 A.2d 323, 325 (1988)).

We are presented with one issue: Did Rose present a reasonable explanation for his failure to attend the pre-trial status conference? Rose contends that he never received notice of the status conference, and for this reason only he did not attend. He argues that since he lives in an apartment complex in which seven tenants have identical addresses and apartment numbers, the mail delivered to those tenants is delivered to the incorrect apartment at times, and that his absence was due to a mailman’s innocent mistake. Rose submitted photocopies of mail that he has received improperly to substantiate his claim that he never received notice. Rather than refer us to any legal authority for his claim, Rose contends that “the Court below was in such gross error that the facts coupled with the truth should be sufficient.” Unfortunately, as jurists we must be a bit more cynical; we will therefore review the appropriate caselaw.

Our Supreme Court has noted that “the efficacy of lack of notice to justify a default depends on the circumstances of the case.” Sklar v. Harleysville Ins. Co., 526 Pa. 617, 587 A.2d 1386 (1991). At issue in Sklar was whether a judgment non pros was properly entered against plaintiff after she failed to appear at the call of her trial. Plaintiff argued that defendant was obliged to notify her of the trial, and because of a change in address she was left unaware of the proceedings. Defendant sent notice to plaintiff by certified mail at her last known address; and plaintiff argued that when defendant did not receive a return from the postal authorities, defendant was under an obligation to make reasonable efforts to trace her forwarding address. As a result of defendant’s failure, plaintiff argued, the judgment non pros violated procedural due process. Our Supreme Court held that due process only requires a party to undertake reasonable, not extraordinary, efforts to serve an opponent with legal papers, and that judgment non pros was properly entered:

... [A]ppellant was not only a litigant in a case pending in common pleas court, she was the plaintiff. In view of the fact that service of all legal papers in a case other than original process can be made upon a pro se party by mail at his or her residence or last known address, see Pa.R.C.P. 440(a)(1) and (2), it was obviously incumbent upon appellant to keep the court and opposing counsel apprised of her address. That her failure to do so resulted in her failure to receive actual notice of her trial should not require the adverse party to take extraordinary steps to secure her presence. Appellant’s fault in this regard vitiates the excusability of her failure to attend her own trial. A petition to open or strike a judgment is addressed to a court’s equitable powers, [citation omitted]. The lower courts evidently-believed that appellant’s own neglect was the underlying cause of her failure to receive actual notice of her trial. We agree.

Sklar, at 622, 587 A.2d at 1389.

Appellees also cite Abraham Zion v. After Six, supra, in support of their contention that the petition to open was properly denied. In that case, judgment non pros was entered after plaintiff failed to appear at a status listing of his case and failed to attend his trial. Plaintiff petitioned to open the judgment arguing, among other things, that his pro se status rendered him unable to determine the proper trial date. This Court stated: “[W]hen cases are listed on the trial list that is published in the Legal Intelligencer, it is incumbent upon the parties’ attorneys, or the parties themselves if they are not represented by counsel, to appear at the call of the trial list.” Id. at 619, 607 A.2d at 1109 (quoting Williams v. Gallagher, 396 Pa.Super. 584, 586, 579 A.2d 403, 404 (1990)). We also held that plaintiff “assumed the risk of his own lack of professional legal training,” Id., and could therefore not complain when judgment was entered against him for his own failure to act.

We find that this case is distinguishable from Abraham Zion because the Lehigh County Local Rules place the burden on the court to notify the parties of an upcoming status conference. Rose had no obligation, as opposed to plaintiff in Abraham Zion, to keep watch of a legal publication to make himself aware of the coming proceeding. We cannot, however, go so far as to say that Rose is not accountable for his lack of notice. Testimony at the hearing on Rose’s petition revealed that the court mailed previous correspondence and legal papers to Rose at his address without incident. N.T. 6/20/91 at 4. If Rose did have trouble receiving mail at this address, and his exhibits indicate that he did in the past, he made no effort to inform the court of the problem. Under the authority of Sklar, supra, the party responsible for serving notice, in this instance the court, was only obligated to make a reasonable effort to notify Rose of the upcoming status conference. The court complied with Pa.R.C.P. 440 by mailing the notice to his proper address; we do not know what more could be expected. When Rose failed to receive notice, he was the party, as between himself, opposing counsel, and the court, in the best position to avoid the harm he suffered. He cannot be heard now to complain.

Order affirmed.

      . Notably, all parties, save Rose, were also represented at oral argument before this Court on June 10, 1993.

      . Rose’s address is 1703 S. Albert Street, Apartment # 14. He contends that since the apartment complex is comprised of seven buildings, all of which are located at 1703 S. Albert St., there are seven tenants who live in apartment #14. Rose submitted a letter from the complex's manager to verify this contention.

      . Testimony of Susan Schellenberg, the Deputy Court Administrator, also established that the court sent notice of the upcoming conference to Rose's address and that the letter was not returned. N.T. 6/20/91 at 17. Rose contends that the trial court improperly advocated the defendants’ case because it was the court who called Schellenberg to testify. It is well settled, however, that the trial court may in the exercise of sound discretion call and examine witnesses. See Commonwealth v. DiPasquale, 424 Pa. 500, 230 A.2d 449 (1967). We find that the trial court properly exercised its discretion in this regard.


author: HESTER, Judge. WIEAND, Judge,

text:
    628 A.2d 444
    THREE RIVERS REALTY GROUP, INC., a Corporation, and Simon Glick, an individual, trading as Manor Oaks Associates, L.P. also known as Manor Oak Associates, L.P., Appellants, v. Richard ERENBERG, an individual, and John Tunno, an individual, trading as TCN, a partnership.
    Superior Court of Pennsylvania.
    Argued April 15, 1993.
    Filed July 26, 1993.

      R. Bruce Carlson, Darlene M. Nowak, Pittsburgh, for appellants.
    Jonathan P. Clunies, Pittsburgh, for appellees.
    Before WIEAND, POPOVICH and HESTER, JJ.
   HESTER, Judge.

Three Rivers Realty Group, Inc. and Simon Glick, an individual, t/d/b/a Manor Oak Associates, appeal from the August 5, 1992 order entered by the Court of Common Pleas of Allegheny County awarding attorney’s fees and costs in the amount of $12,743.72 to Richard Erenberg, appellee. ■ Appellee, together with John Tunno, traded and did business as TCN (Total Cellular Network). Appellee signed a commercial lease for office space as vice-president on behalf of TCN. The lease contained a confession of judgment clause. Appellants utilized this clause to confess judgment against appellee individually after TCN defaulted. The trial court subsequently opened the confessed judgment. In the instant order, the trial court awarded attorney’s fees and costs to appellee pursuant to Act 6 of 1974, 41 P.S. § 101, et seq. (hereinafter the “Act”). The Act contains requirements for giving notice in certain proceedings that seek to attach residential real property. It also permits the imposition of attorney’s fees and costs after a debtor prevails in opening a confessed judgment against residential real property and when the creditor failed to comply with the Act’s notice requirements. We reverse.

The record reveals the following. On August 1, 1989, the parties entered into a lease for commercial office space (the “lease”). The lease was executed by appellee on behalf of TCN. The lease contained a provision empowering any prothonotary or attorney of any court of record to appear and confess judgment against the tenant, which was identified as TCN but signed on its behalf by appellee, for rent, additional rent, or any charges and expenses. Subsequently, appellee’s associate, John Tunno, executed an instrument which purported to amend the original lease which was necessitated when TCN moved to other space in the building to accommodate renovations to be done by appellants as landlords. The purported amendment did not contain a confession of judgment clause.

Appellee did not execute this amendment, which was signed only by Tunno, who did not identify in what capacity he signed it. A dispute exists whether this second agreement constituted an amendment to the original lease, thereby continuing the effectiveness of the confession of judgment clause contained in the first lease, or whether it constituted an entirely new lease agreement that did not contain a confession of judgment clause.

On March 8, 1991, appellants confessed judgment against appellee for the balance of the unpaid rent, fees, and costs, totalling $62,055. Since TCN never was incorporated, appellants referred to TCN as a partnership and appellee as a general partner. They confessed judgment and filed a praecipe for writ of execution against a bank account in appellee’s name. A bond subsequently was posted to dissolve the attachment against the bank account.

On March 14,1992, appellee filed a petition to open or strike the judgment confessed against him. He alleged that there were factual issues concerning whether the judgment properly was entered against him individually. The trial court granted appellee’s motion to open the judgment but denied his motion to strike.

On February 18, 1992, appellee filed a motion requesting attorney’s fees and costs since appellants had confessed judgment against him personally and since a judgment automatically operates as a lien against his residential real property in the county. Appellee premised his entitlement to relief on appellants’ violation of the Act. He asserted that the lien constituted an attachment of his residential property. The Act permits the award of attorney’s fees and costs where the debtor prevails in opening a confessed judgment. The trial court granted attorney fees and costs pursuant to the Act since appellee had prevailed in opening the judgment. This appeal followed.

Appellants argue that the Act was not intended to apply in instances when there is no attempt to collect a judgment against residential real estate. We agree. See Drum v. Leta, 354 Pa.Super. 448, 512 A.2d 36 (1986) (attempt to execute judgment as to residential real estate makes this statute applicable). We do not find that recording a judgment without any further attempt to execute upon an individual’s residential real estate brings the Act into play; otherwise, any judgment entered against an individual owning residential real property would implicate the Act. This obviously was not the intent of the Act. The Act may be implicated whenever there is an attempt to collect the judgment against the residential real estate. Id. That is not the case herein. Since the Act does not apply, the court erred in granting attorney’s fees and costs.

Order reversed. Jurisdiction relinquished.

WIEAND, J., files a concurring statement.

WIEAND, Judge,

concurring.

I concur. The transaction reviewed by the trial court in the instant cases was not a residential mortgage transaction, and there was no attempt to enforce a judgment obtained by confession against residential real estate. Therefore, the Act of January 30,1974, P.L. 13, No. 6, 41 P.S. § 101 et seq., and its provisions allowing the recovery of counsel fees have no application.


author: POPOVICH, Judge:

text:
    628 A.2d 840
    Patricia KEBLISH, Individually and as Administratrix of the Estate of Nicholas Keblish, Appellant, v. THOMAS EQUIPMENT, LTD.; J.D. Equipment; and Smitty’s Rental, Inc. v. Elwood HOGARTH, Appellees.
    Superior Court of Pennsylvania.
    Argued Feb. 18, 1993.
    Filed June 4, 1993.
    Reargument Denied Aug. 16, 1993.

      Leonard A. Busby, Philadelphia, for appellant.

      Eugene J. Maginnis, Philadelphia, for Thomas Equipment, appellee.
    Gary B. Cutler, Philadelphia, for J.D. Equip, and Smitty’s Rental, appellees.
    Before BECK, POPOVICH and BROSKY, JJ.
   POPOVICH, Judge:

This is an appeal from the Court of Common Pleas of Monroe County which granted the motion for judgment on the pleadings filed by appellee Smitty’s Rental, Inc. The lower court reasoned that the Uniform Commercial Code, Article 2-Sales, breach of warranty provisions, see 13 Pa.C.S.A. §§ 2312-2318, did not apply to the one-day equipment lease at issue. We disagree with the lower court’s reasoning and reverse the entry of judgment on the pleadings in favor of appellee Smitty’s Rentals, Inc.

On June 28,1987, defendant Elwood Hogarth entered into a contract with appellee Smitty’s for the one-day rental of a front-end loader with a backhoe attachment which was manufactured by defendant Thomas Equipment, Ltd. On the following day, Smitty’s delivered the front-end loader to Mr. Hogarth. An employee of Smitty’s explained the operation of the machinery to Mr. Hogarth and Mr. Jim Fisher, whom Mr. Hogarth had hired to operate the front-end loader. Mr. Hogarth and Mr. Fisher used the heavy equipment without incident.

Following completion of their task, they parked the front-end loader on the property of Mr. Hogarth’s neighbor, Nicholas Keblish, and left the keys in the ignition. Mr. Hogarth had obtained Mr. Keblish’s permission to park the vehicle on his property to ease its retrieval by Smitty’s since Mr. Hogarth’s property was set back from the road. Mr. Hogarth then informed Smitty’s that he was finished with the machinery. Later that afternoon, an employee of Smitty’s arrivéd to retrieve the loader and found Mr. Keblish dead, crushed between the seat for the backhoe and the cab roof.

Decedent’s widow, Mrs. Patricia Keblish (hereafter “appellant”), initiated this suit by writ of summons on June 28, 1991, one day less than four years of Mr. Keblish’s death. In her complaint, appellant, in her own right and as administrator of decedent’s estate, sought recovery under Pennsylvania’s Wrongful Death Act, 42 Pa.C.S.A. § 8301, and Survival Act, 42 Pa.C.S.A. § 8302, for damages caused by the defendants’ alleged breach of express and implied warranties which attached to the various transactions by which the Thomas front-end loader eventually came to be used by Mr. Keblish.

Smitty’s filed an answer and new matter raising the affirmative defenses of comparative negligence, assumption of risk, lack of privity of contract, exclusion of warranties and statute of limitations. Following the completion of the pleadings, Smitty’s filed a motion for judgment on the pleadings. Both Smitty’s and appellant filed supporting briefs, and argument was held. Thereafter, the lower court, citing Cucchi v. Rollins Protective Services, 524 Pa. 514, 574 A.2d 565 (1990) (plurality), determined that the breach of warranty provisions of Article 2 — Sales of the Uniform Commercial Code, see 13 Pa.C.S.A. §§ 2312-2318, did not apply to the one-day lease of the heavy equipment, and, therefore, appellant could not prevail as a matter of law. Judgment on the pleadings was then entered in favor of Smitty’s. This appeal followed.

In Kosor v. Harleysville Mut. Ins. Co., 407 Pa.Super. 68, 71-72, 595 A.2d 128, 129-130 (1991), we set forth the applicable standard of review as follows:

Entry of judgment on the pleadings is permitted under Pa.R.C.P. 1034 which provides for such judgment after the pleadings are closed, but within such time as not to delay trial. A motion for judgment on the pleadings is similar to a demurrer. Kams v. Tony Vitale Fireworks Corporation, 436 Pa. 181, 259 A.2d 687 (1969). It may be entered where there are no disputed issues of fact and the moving party is entitled to judgment as a matter of law. Gallo v. J.C. Penney Casualty Insurance Co., 328 Pa.Super. 267, 476 A.2d 1322 (1984); Vogel v. Berkley, 354 Pa.Super. 291, 511 A.2d 878 (1986); Groff v. Pete Kingsley Building, Inc., 374 Pa.Super. 377, 543 A.2d 128 (1988). In determining if there is a dispute as to facts, the court must confine its consideration to the pleadings and relevant documents. DiAndrea v. Reliance Savings & Loan Association, 310 Pa.Super. 537, 456 A.2d 1066 (1983). The scope of review on an appeal from the grant of judgment on the pleadings is plenary. We must determine if the action of the court below was based on a clear error of law or whether there were facts disclosed by the pleadings which should properly go to the jury. Keystone Automated Equipment Co. v. Reliance Insurance Co., 369 Pa.Super. 472, 535 A.2d 648 (1988).

See also, Bensalem Township School District v. Commonwealth, 518 Pa. 581, 544 A.2d 1318 (1988).

Accordingly, we will first review the lower court’s decision regarding the inapplicability of Article 2-Sales of the Uniform Commercial Code to the lease transaction herein. In Cucchi v. Rollins Protective Services, 377 Pa.Super. 9, 32-34, 546 A.2d 1131, 1143 (1988), reversed on other grounds, 524 Pa. 514, 574 A.2d 565 (1990), a panel of this court held that “the express and implied warranty provisions of Article 2, specifically sections 2313 and 2314, apply by analogy to leases.” In so ruling, the court reasoned: “We find that sale-lease distinction equally unimportant in the area of warranty law; for both leases and sales, there should be one body of warranty law. This will promote uniformity in dealing with commercial transactions whether they be cast in the form of a lease or a sale.” Id., 546 A.2d at 1143. On appeal to our Supreme Court, Justice Larsen, in his opinion announcing the judgment of the court, adopted the reasoning of this court and found that the warranty provisions of Article 2 of the Uniform Commercial Code as adopted in Pennsylvania, applied with equal force to sales and leases. Cucchi, 574 A.2d at 572. In addition, Justices Larsen and Papadakos found further support in applying the warranty provisions of Article 2-Sales to transactions involving the lease of goods in proposed Article 2A-Leases which essentially applies intact the warranty provisions of -Article 2-Sales to lease transactions with only relatively minor adaptations. Cucchi, 574 A.2d at 573, 570-571.

However, the lower court herein determined that the warranty provisions did not apply by analogy to the one-day lease sub judice. In support of its decision, the lower court seized upon the language in Justice Larsen’s opinion, wherein he stated: “We agree with the Superior Court and we will judicially extend by analogy selected provisions of Article 2/Chapter 21 to transactions involving the lease of goods on a case by case basis, considering the nature of the specific transaction (lease), the language, purpose, and intent of the U.C.C. provision under consideration, and the practicality of applying the particular provision(s) at issue to the particular transaction.” Cucchi, 574 A.2d at 570 (Emphasis added). In so ruling, Justice Larsen adopted the following language from this court’s decision in Cucchi 546 A.2d 1131:

However, there are significant differences which make the outright extension of Article 2 to leases impractical. These differences include transfer of title, incidents of ownership, risk of loss, financial considerations, taxes, and bankruptcy proceedings. Faced with these differences and the fact that Article 2 was designed to govern sales, we cannot be certain that the impact of Article 2’s provisions on leases would not be obscure or undesirable. In other words, we cannot be certain that we would not be justified in applying some provisions of Article 2 to sales and not to leases. To gain that certainty, we would have to examine each of Article 2’s provisions. Given the impossibility of that task within one sweeping opinion, we would be remiss in holding Article 2 applicable to leases in its entirety at this time. Accordingly, we will analogize the provisions of Article 2 to leases only when the specific provision has been examined and the circumstances of the situation warrant the same treatment which is given to sales.

Cucchi 574 A.2d at 569-570, quoting, Cucchi 546 A.2d at 1141-1142.

In applying the above-quoted language, the lower court compared the facts of Cucchi supra, to those before us. In Cucchi supra, the transaction in question was the long-term lease of a burglar alarm system from Rollins Protective Services. The lease also provided for continual service and maintenance of the alarm system. Eleven years after installation of the system the Cucchis’ home was burglarized, and the system malfunctioned. The Cucchis then filed suit against Rollins to recover their losses. In their complaint, the Cucchis. alleged Rollins breached express and implied warranties. In deciding that Article 2’s warranty provisions applied to the long-term lease transaction, this court and Justices Larsen and Papadakos reasoned that there is no logical reason to differentiate between true leases, leases that are the functional equivalent of sales and actual sales where warranties are concerned. See Cucchi, 574 A.2d at 568-571; Cucchi, 546 A.2d at 1142-1143.

Presently, the lower court found that the long-term nature of the lease in Cucchi, supra, distinguished it factually from the one-day lease of the Thomas front-end loader, and, therefore, the warranty provisions were held inapplicable. However, the holding of this court’s decision in Cucchi, supra, does not authorize different treatment for different types of lease transactions where the warranty provisions are concerned. Rather, the warranty provisions are applicable to all lease transactions. Further support for this ruling is gained from the fact that the proposed extension of warranty provisions to leases set forth in Article 2A of the U.C.C. does not distinguish lease transactions based upon their duration. The “case-by-case” analysis set forth in both Cucchi decisions is necessary only to determine whether a specific provision of Article 2-Sales — which has not heretofore been extended by analogy to leases — should be applied to lease transactions. See Cucchi 574 A.2d at 569-570, quoting Cucchi 546 A.2d at 1141-1142. Accordingly, we find that the lower court erred when it refused to apply the warranty provisions of Article 2 to the one-day lease of the Thomas front-end loader.

Having determined that the lower court erred when it declined to apply the warranty provisions of Article 2-Sales to this lease transaction, we turn to Smitty’s argument that other legal grounds exist to support the entry of judgment on the pleading. In related arguments, Smitty’s first argues that Mr. Keblish was not a foreseeable user of the equipment, and, second, that the front-end loader was not unreasonably dangerous for the intended user. Therefore, Smitty’s submits that appellant is not entitled to pursue a. breach of warranty claim.

We reject Smitty’s arguments. First, it is clear that the concepts of vertical and horizontal privity have been abolished in assumpsit cases brought under the Uniform Commercial Code. See, Williams v. West Penn Power Co., 502 Pa. 557, 565-570, 467 A.2d 811, 815-817 (1983); Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848 (1968) (abolishes vertical privity in U.C.C. cases); Salvador v. Atlantic Steel Boiler Co., 457 Pa. 24, 319 A.2d 903 (1974) (abolishes horizontal privity in U.C.C. cases). Thus, the decedent and appellant would be entitled to the protection of any warranties which attached to the front-end loader.

Similarly, Smitty’s is not entitled to judgment on the pleadings on the grounds that the product was not unreasonably dangerous for the “intended user”. The proper question to be considered is whether the front-end loader was “fit for the ordinary purposes for which such [equipment was] used”. 13 Pa.C.S.A. § 2314; 13 Pa.C.S.A. § 2315; Keirs by Keirs v. Weber Nat. Stores, Inc., 352 Pa.Super. 111, 117-120, 507 A.2d 406, 409-410 (1986). Thus, we are presented with the factual question of whether there was a design or manufacturing defect in the front-end loader. Altronics of Bethlehem, Inc. v. Repco, Inc., 957 F.2d 1102 (3rd Cir.1992) (interpreting Pennsylvania warranty law). Instantly, there remains a dispute as to this question of defect which should be left to the jury, and, accordingly, judgment on the pleadings is inappropriate as to this issue. Kosor, 595 A.2d at 128-129 (standard of review for judgment on the pleadings).

Smitty’s also contends that judgment on the pleadings is appropriate because the lease specifically limited the warranties provided. The equipment lease in question provided: “ALL TOOLS AND EQUIPMENT ARE LEASED UNDER AND SUBJECT TO THE FOLLOWING CONDITIONS AND COVENANTS ... 5. Lessor makes no warranties, express or implied, regarding either the use or operation of any property or that the use of such property is fit for any specified or intended purpose by Lessee.”

It is certainly possible for a party to limit the express and implied warranties applicable to the contract. 13 Pa.C.S.A. § 2316 expressly provides for the limitation of warranties and, in pertinent part, reads as follows:

(b) Implied warranties or merchantability and fitness.— Subject to subsection (c), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that “There are no warranties which extend beyond that description of the face hereof.”

See also, Moscatiello v. Pittsburgh Contr. Equip., 407 Pa.Super. 363, 368-369, 595 A.2d 1190, 1193 (1991).

Upon review, we find that the warranty disclaimer herein is not enforceable. First, nowhere in the disclaimer of warranty set forth in paragraph 5 of the lease is the term “merchantability” mentioned. Therefore, the requirements of 13 Pa. C.S.A. § 2316(b) have not been met with regard to the implied warranty of merchantability, and the disclaimer of that particular warranty is void. Further, the warranty disclaimer was imbedded within the body of the contract and was set forth in the same size print as the remainder of the contract language. In no way was the language in question highlighted or emphasized. Thus, we cannot conclude as a matter of law that the language was “conspicuous” such that the implied warranty of fitness was properly disclaimed pursuant to 13 Pa.C.S.A. § 2316(b). Moscatiello, 595 A.2d at 1193 (“A term of clause is ‘conspicuous’ when it is ‘so written that a reasonable person against whom it is to operate ought to have noticed it ... Language in the body of a form is conspicuous if it is in larger or other contrasting type of color____’ 13 Pa.C.S.A. § 1210.”). Accordingly, we also find that Smitty’s has not properly disclaimed the implied warranties of fitness.

Smitty’s further argues that appellant cannot recover on her breach of warranty cause of action because of the indemnity and hold harmless clause of the lease agreement which is set forth in paragraph 11 as follows:

Lessee shall indemnify and hold harmless the lessor against all loss, damage, expense, claims or actions arising from any injuries to person or property of any character occasioned by the operation, handling or transportation of the leased property during the term of the lease, and while the property is in the possession or control of the lessee.

In other words, Smitty’s contends that if appellant prevails on a breach of warranty claim against Smitty’s, then she would be required to indemnify Smitty’s for those damages which Smitty’s was required to pay her. Such an absurd and unconscionable interpretation of that clause cannot be permitted to stand. See 13 Pa.C.S.A. § 2719(c) (“Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.”).

Clearly, a breach of warranty cause of action is “occasioned by the operation, handling or transportation of leased property” only to the extent that the operation of the front-end loader precipitated the injury. Although decedent did operate the front-end loader, it is not a foregone conclusion that his own negligence caused his death. The breach of warranty cause of action is based upon Thomas Equipment’s and Smitty’s action of placing, in the stream of commerce, a good which . allegedly is not fit for the ordinary purpose to which the good will be put, i.e., excavation. Certainly, to the extent that the decedent’s death was caused by his own negligent actions, the indemnity clause would apply. However, it would be unconscionable to apply the indemnity clause with equal force to bar the breach of warranty claims which are based solely on the acts of the manufacturer and supplier of the product — acts over which decedent had no control.

In sum, we find that the breach of warranty provisions of Article 2 — Sales of the Uniform Commercial Code apply with equal force to lease transactions, pursuant to this court’s decision in Cucchi v. Rollins Protective Services, 377 Pa.Super. 9, 32-34, 546 A.2d 1131, 1143 (1988), reversed on other grounds, 524 Pa. 514, 574 A.2d 565 (1990). In addition, Smitty’s has failed to demonstrate that there are no issues of material fact and that they are entitled to judgment as a matter of law. Therefore, we reverse the decision of the court below and remand for further proceedings.

Order reversed. Case remanded. Jurisdiction relinquished.

      . Although agreeing with this court’s decision that the warranty provisions of Article 2-Sales applied by analogy to lease transactions, Justice Larsen and Papadakos found error in this court's determination that the Cucchis’ cause of action was barred by the applicable four year statute of limitation. 13 Pa.C.S.A. § 2725. Cucchi, 574 A.2d at 574-575.

      . In the Uniform Commercial Code Modernization Act, Act No. 1992-97, effective July 9, 1993, our Legislature has made significant changes to Pennsylvania's version of the U.C.C. For our purposes, the most significant change is the addition of Article 2A, Leases, to be codified at 13 Pa.C.S.A. § 2A101 ei seq. We note that adopted in the Act were the warranty provisions for leases and the statute of limitation for leases in essentially the same form as those for sales applied by analogy herein. See Purdons Legislative Service, 1992, No. 5, pp. 397-399, 412.

      . We note that our Supreme Court's decision in Cucchi, supra, is a plurality opinion, although Justice Larsen’s opinion was referred to as the "majority opinion.” See Uniform Commercial Code-Pennsylvania Applies Article 2 Warranty Provisions to Personal Property Lease Transactions-Cucchi v. Rollins Protective Services Co., 524 Pa. 514, 574 A.2d 565 (1990), 64 Temp.L.Rev. 355 (1991). Justice Larsen was joined by Justice Papadakos only. Chief Justice Nix who was joined by Justice Flaherty concurred in the result reached by Justice Larsen, but criticized his opinion, stating: ”[T]he provisions of the U.C.C. were irrelevant to this transaction which was a contract for the sale of a service, not a contract for the lease or sale of the equipment.” Cucchi, 574 A.2d at 575 (Concurring opinion by Nix, C.J.). Thus, Chief Justice Nix and Justice Flaherty did not address upon the issue of whether the Article 2 warranty provisions applied to leases. Justice Zappala who was joined by Justices McDermott and Cappy wrote:
      The majority has been persuaded that judicial wisdom dictates that Chapter 21 of the Uniform Commercial Code-Sales, 13 Pa.C.S.A. §§ 2101-2725, be extended to leases of goods — a "wisdom” that has not yet befallen the Legislature, as the majority recognizes by its statement that the revisions proposed by Article 2A have not yet been enacted in Pennsylvania. While I do not expect my words to dissuade the majority from doing what the Legislature has not seen fit to so, I must state that I find it unwise to effect sweeping changes in lease transactions merely because the judiciary is impatient with the Legislature’s failure to do so. At the very least, individuals and businesses are entitled to know what legal consequences may arise from lease transactions. Legislation would provide this; judicial decisions affecting transactions made prior to their pronouncements would not.

        Cucchi, 574 A.2d at 576 (Dissention opinion by Zappala, J.).
      Justice Cappy also wrote separately to criticize Justice Larsen’s judicial extension of Article 2 to leases. Since no clear majority was reached as to the question of whether Article 2’s warranty provisions should be extended to leases, we must follow our prior decision which directs such extension by analogy to occur. See, Mt. Lebanon v. County Board of Elections, 470 Pa. 317, 368 A.2d 648 (1977).

      . Further, assuming Smitty’s argument was correct, judgment on the pleadings would still not be proper, since there may be a factual dispute over whether Mr. Keblish was a "foreseeable" or "intended” user of the front-end loader given the fact that the equipment was parked on his property with the keys in the ignition. See Kosor, 595 A.2d at 128-129 (standard of review for judgment on the pleadings).