source: Caselaw Access Project

author: CIRILLO, Judge.

license: Public Domain

text:
    656 A.2d 931
    Amy D. BAUGHMAN v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 10, 1995.
    Filed March 9, 1995.

      Joe Hudock, Pittsburgh, for appellant.
    Michael Louik, Pittsburgh, for appellee.
    Before CAVANAUGH, CIRILLO and SAYLOR, JJ.
   CIRILLO, Judge.

State Farm Mutual Automobile Insurance Company (State Farm) appeals from an order entered in the Court of Common Pleas of Beaver County, declaring that appellee’s underinsurance policy limits under the applicable State Farm policy are $100,000.00. For the following reasons, we quash this appeal.

At trial before the Honorable Robert C. Reed, the parties stipulated to the following facts: On March 4, 1988, appellee, Amy D. Baughman (the “Insured”), sustained personal injuries as a result of a motor vehicle accident. The Insured, with the consent of State Farm — her insurer, settled her personal injury claim with the third-party tortfeasors’s liability insurance carrier for $100,000.00, the applicable policy limit. Thereafter, the Insured sought underinsured motorist (“UIM”) benefits from State Farm.

A dispute arose as to the amount of UIM coverage available to the Insured under the State Farm policy. State Farm maintained that when the Insured’s husband, also a named insured under the State Farm policy, executed an “acknowledgement of coverage selection” in November of 1986, he reduced the uninsured motorist (“UM”) and UIM coverages under the Baughmans’ policy to $15,000.00/$30,000.00. It was undisputed, however, that the Insured did not sign any such form.

The Insured, therefore, filed a declaratory judgment action against State Farm, seeking a declaration that her UIM benefits were in the amount of $100,000.00/$300,000.00, the same amount as her bodily injury liability coverage. State Farm filed an answer and new matter to the complaint, and the Insured replied. Thereafter, State Farm filed a motion for summary judgment. After briefing and oral arguments, State Farm’s motion for summary judgment was denied.

After a bench trial, Judge Reed issued an order and supporting opinion, declaring that the Insured’s UIM policy limits under the applicable State Farm policy are $100,000.00. Notice of the order was mailed on May 9, 1994. On May 16th, State Farm filed a motion for post-trial relief. On June 2nd, before the resolution of State Farm’s post-trial motions, State Farm filed a notice of appeal. On appeal, State Farm presents three questions for this court’s consideration:

1. Whether the trial court erred by entering a declaratory judgment that the Insured was entitled to $100,000.00 in UIM coverage despite the undisputed fact that the Insured’s husband had requested, in writing, a reduction of UM and UIM coverages pursuant to 75 Pa.C.S.A. § 1734?
2. Whether the trial court erred in finding that the Insured’s husband’s reduction of UM and UIM coverage was not binding on the Insured?
3. Whether the declaratory judgment entered by the trial court constitutes a final and appealable order pursuant to Pa.R.A.P. 341, as well as 42 Pa.C.S.A. §§ 742, and 7532.

Since the third issue presented concerns the jurisdiction of this court, we will address it first. In essence, both parties contend that because Judge Reed captioned his order as a “Judgment[,]” the order was final for purposes of appeal. We disagree and find that State Farm’s filing of post-trial motions precludes this court from reviewing the merits of this appeal.

Rule 227.1 of the Pennsylvania Rules of Civil Procedure provides in pertinent part:

(c) Posh-Trial motions shall be filed within ten days after
******
(2) notice of nonsuit or the filing of the decision or adjudication in the case of a trial without a jury or equity trial.

Pa.R.C.P. 227.1(c)(2) (emphasis added). It is well settled that where there is a trial without a jury upon stipulated facts submitted for the decision of the court, a party must file post-trial motions to preserve any right of appeal. See, e.g., McCormick v. Northeastern Bank, 522 Pa. 251, 254, 561 A.2d 328, 330 (1989); Miller v. Kramer, 424 Pa.Super. 48, 49-51, 621 A.2d 1033, 1034 (1993). Conversely, where the parties submit an agreed statement of facts for the entry of judgment by the court, the judgment is considered final and the parties must appeal within thirty days of the judgment without filing post-trial motions. See, e.g., Miller, 424 Pa.Super. at 51-52, 621 A.2d at 1035; Wertz v. Anderson, 352 Pa.Super. 572, 577, 508 A.2d 1218, 1220 (1986).

To ascertain whether the parties’ stipulation of facts was submitted to the trial court for a decision which is subject to exceptions, Pa.R.C.P. 227.1, or for entry of final judgment, this court has considered several factors:

1. whether the parties actually intended that the court enter a decision or a judgment;
2. the parties’ instructions to the trial court, if any; and
3. whether the trial court rendered a decision subject to exceptions (e.g., whether the order contained findings of fact or conclusions of law), or whether the trial court entered a final judgment.

Miller, 424 Pa.Super. at 52, 621 A.2d at 1035.

Here, although Judge Reed’s order is captioned as a “Judgment[,]” there is no evidence of record to indicate that the parties instructed Judge Reed to enter a final judgment, or even that the parties intended such a result. Additionally, the fact that the parties stipulated to certain facts is of no consequence, as additional testimony and evidence was necessary for Judge Reed to make his determination. In fact, the parties presented the testimony of the Insured, her husband, and a State Farm agent, along with various exhibits. Because Judge Reed was called upon to make findings of fact and conclusions of law based on this evidence, we find that Judge Reed’s order amounted to a decision of the court. Miller, supra, 424 Pa.Super. 48, 621 A.2d 1033.

Specifically, based on the testimony, Judge Reed found that the Insured did not authorize her husband to reduce her UIM coverage when the husband reduced his UIM coverage. Judge Reed also found that the Insured did not ratify or assent to a reduction in her UIM coverage at any later date. Based on these findings, Judge Reed concluded that, pursuant to section 1734 of the Motor Vehicle Financial Responsibility Law, the Insured had $100,000.00 in UIM coverage under the State Farm policy. Because of the foregoing, we find that Judge Reed rendered a verdict or decision, not a final judgment. Accordingly, State Farm was correct in filing post-trial motions therefrom. Miller, supra, 424 Pa.Super. 48, 621 A.2d 1033. Cf. Lenhart v. Travelers Ins. Co., 408 Pa.Super. 1, 596 A.2d 162 (1991) (holding that post-trial motions are prohibited where the decision of the trial court is based solely on its consideration of the record, and without the introduction of any evidence); Palladino v. Dunn, 361 Pa.Super. 99, 521 A.2d 946 (1987) and Storti v. Minnesota Mut. Life Ins. Co., 331 Pa.Super. 26, 479 A.2d 1061 (1984) (both cases excusing party’s failure to file post-trial motions where order appealed from contained no findings of fact, no conclusions of law, and no language to suggest that order was anything but a final order or that parties were required to file exceptions to perfect a right of appeal).

Since we find that Judge Reed rendered a decision after trial, and because State Farm properly filed its post-trial motions within ten days of receiving notice of the decision, we quash the instant appeal so that the trial court may have the first opportunity to correct any errors that it may have made in its adjudication.

Appeal quashed.


author: HOFFMAN, Judge:

text:
    656 A.2d 933
    Daniel W. McDOLE, Individually and t/a McDole’s Catering, v. The BELL TELEPHONE COMPANY OF PENNSYLVANIA, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 24, 1995.
    Filed March 27, 1995.

      David E. Heisler, Scranton, for appellant.
    Philip M. Hof, Theresa Hogan, Easton, for appellee.
    Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from an order dated May 23, 1994, entering judgment in favor of appellee, Daniel W. McDole [“McDole”], in the amount of $200,000. Appellant, Bell Telephone Company of Pennsylvania [“Bell”], raises the following issues for our review:

I. WHETHER THE [APPELLEE] HAS A NEGLIGENCE CLAIM FOR AN ERROR OR OMISSION IN THE YELLOW PAGES DIRECTORY PUBLISHED AND DISTRIBUTED BY THE [APPELLANT], WHERE THE RELATIONSHIP BETWEEN THE PARTIES AND ITS LEGAL CONSEQUENCES FLOW FROM A WRITTEN AGREEMENT BETWEEN THEM FOR ADVERTISING AND LISTINGS IN THE YELLOW PAGES?
II. WHETHER [APPELLEE] HAS FAILED TO ESTABLISH THAT [APPELLANT] BREACHED A DUTY OF CARE RECOGNIZED IN THE LAW OF NEGLIGENCE?
III. WHETHER THE HONORABLE TRIAL JUDGE ERRED IN REFUSING TO CHARGE THE JURY ON THE CONTRIBUTORY NEGLIGENCE OF [APPELLEE]?

Appellant’s Brief at i. For the following reasons, we affirm.

McDole and his wife operated a business known as McDole’s Catering. Bell was in the business of preparing public telephone directories. In 1986, Bell offered McDole a “key advertisement” in the Allentown Telephone Directory. On November 26, 1986, Bell and McDole executed a written agreement which provided for the placement of a key advertisement for McDole’s Catering in the 1987-1988 Allentown directory, free of charge. Pursuant to the agreement, McDole’s Catering was given an additional phone number, for a period of one year, which corresponded to the number listed in the key advertisement. The business also retained its original number which remained in the regular listings in the Bell yellow pages. In exchange for publishing this large, tri-colored advertisement, McDole was required to monitor the results. At the conclusion of the one-year period, the agreement was not renewed and the additional new phone number was reassigned to another Bell customer.

From 1987 until 1990 McDole Catering paid for a regular listing in the Easton, Bethlehem, and Allentown Yellow Pages, under its original phone number. However, in the 1988-1989 Allentown directory, Bell inadvertently placed the old key advertisement, which listed the now reassigned phone number. At the same time the business expanded, opening a deli in the Apple Tree Plaza, located in Allentown. It was not until the fall of 1989 that McDole discovered the unauthorized and incorrect key advertisement.

McDole filed a complaint in tort on April 30, 1990, seeking monetary damages, which was amended on August 27, 1990. After a trial, on November 17, 1993, the jury awarded McDole $200,000. Post-trial motions were denied and this timely appeal followed.

Bell first argues that the trial court erroneously denied its motion for judgment notwithstanding the verdict, or alternatively a new trial. Specifically, Bell contends that McDole does not have any claim in negligence, as a cause of action in tort does not normally arise from a breach of contract. In support of its position, Bell refers this court to our prior holding in Bash v. Bell Telephone Co., 411 Pa.Super. 347, 601 A.2d 825 (1992). In Bash, appellant and Bell Telephone company entered into an agreement, providing that appellant pay a monthly charge for a directory listing. The agreement also limited the Telephone Company’s liability for damages resulting from errors or omissions in the advertisement or listings to the amount paid for the advertisement or listing. Although Bell omitted appellant’s advertisement, we dismissed appellant’s tort claim, explaining:

Although certain services, such as alphabetical directory listings, are considered by the courts to be a public service, and thus governed by Public Utility regulations, contracts for the purchase of supplemental advertisement listings are considered to be a private contractual matter. Thus, in this case, the parties’ obligations are defined by the terms of the contract, and not by the larger social policies embodied in the law of torts.

Bash, 411 Pa.Super. at 356-57, 601 A.2d at 829-30 (citations omitted).

The facts presented here, however, are distinguishable from the facts in Bash. Here, the offending advertisement was not governed by a contract as the contract for the key advertisement had expired prior to the inadvertent listing. Consequently, the reasoning in Bash is inapplicable to the facts presented here.

It is well settled that judgment notwithstanding the verdict may be granted “only in a clear case, where after viewing the evidence in the light most favorable to the verdict winner, no two reasonable minds would disagree that the verdict was improper.” Golibart v. Reamer, 415 Pa.Super. 623, 626, 610 A.2d 56, 58 (1992), alloc. denied, 532 Pa. 664, 616 A.2d 985 (1992). Similarly, a new trial may only be awarded when the verdict is so contrary to the evidence as to shock one’s sense of justice. Butler v. Kiwi, S.A., 412 Pa.Super. 591, 595, 604 A.2d 270, 272 (1992), alloc. denied, 531 Pa. 650, 613 A.2d 556 (1992). After a careful review of the record, we find the trial court’s denial of both Bell’s motion for judgment notwithstanding the verdict and Bell’s motion for a new trial “did not constitute a clear and palpable abuse of discretion or error of law.” Butler, supra, 412 Pa.Super. 591, 604 A.2d 270. See also Golibart, supra, 415 Pa.Super. 623, 610 A.2d 56. Consequently, this argument has no merit.

Bell next asserts that even if McDole properly presented the negligence claim to the jury, there was insufficient evidence to sustain his allegation. We disagree.

“The basic elements of a cause of action founded on negligence are a duty, a breach of that duty, a causal relationship between the breach and the resulting injury and an actual loss.” Burman v. Golay and Co., 420 Pa.Super. 209, 213, 616 A.2d 657, 659 (1992), alloc. denied, 533 Pa. 648, 624 A.2d 108 (1993). Moreover, negligence may be inferred from circumstantial evidence, pursuant to the doctrine of res ipsa loquitur, which allows a jury to infer the existence of negligence and causation where the injury does not ordinarily occur in the absence of negligence. Bearfield v. Hauch, 407 Pa.Super. 624, 627, 595 A.2d 1320, 1322 (1991). A review of the record reveals that McDole presented sufficient evidence that, as a proximate result of Bell’s acts, McDole suffered a loss. Consequently, we find that the trial court did not abuse its discretion by refusing to upset the jury’s verdict. Golibart, supra, 415 Pa.Super. 623, 610 A.2d 56; Kiwi, supra, 412 Pa.Super. 591, 604 A.2d 270.

Finally, Bell complains that the trial judge erred in failing to instruct the jury as to the law of contributory negligence.

The issue of contributory negligence may be removed from the jury where the evidence is so clear and palpable that there is no room for fair and reasonable persons to differ in their conclusions that it does not exist. Solomon v. Baum, 126 Pa.Commw. 646, 650, 560 A.2d 878, 880 (1989), appeal denied, 525 Pa. 636, 578 A.2d 930 (1990). In the instant case, we agree with the trial court that “contributory negligence has no place in this case.” Trial Court Opinion, May 23, 1994, at 11. No evidence was presented that McDole had anything to do with the publication of the erroneous advertisement. Furthermore, we cannot find that the failure of McDole to anticipate Bell’s negligence amounts to contributory negligence. Consequently, we find it was not improper for the trial court to fail to charge the jury regarding contributory negligence. Rice v. Shuman, 513 Pa. 204, 211-12, 519 A.2d 391, 395 (1986) (defendant has burden of establishing contributory negligence of plaintiff and it is thus incumbent upon defendant to produce this evidence).

For the above reasons, we affirm

Affirmed.

      . Prior to trial, in July of 1992, McDole filed for bankruptcy. McDole's expert testified that the total damages resulting from the incorrect listing was between $468,500 and $762,000. N.T., November 16, 1993, at 184.


text:
    656 A.2d 936
    ARDREY INSURANCE AGENCY, INC., and Bryce McLerran D/B/A Bryce & Associates Insurance, Individually and on Behalf of all Others Similarly Situated v. The INSURANCE COMPANY OF DECATUR.
    Superior Court of Pennsylvania.
    Argued Jan. 26, 1995.
    Filed April 3, 1995.

      Joseph Roda, Lancaster, for appellants.
    Lawrence G. McMichael, Philadelphia, for appellee.
    Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from an order entered June 3, 1994 granting appellee’s, Insurance Company of Decatur, motion for summary judgment. Appellants, a group of insurance agents represented by class agents, Ardrey Insurance Agency, Inc. and Bryce McLerran d/b/a Bryce & Associates Insurance, present the following issues for our review:

1. Whether the trial court erred in failing to find that the agency contract between the parties was ambiguous as to whether Defendant could make the change in its calculation of commissions that is the subject of this litigation.
2. Whether the trial court erred in failing to interpret that ambiguity against Defendant, since Defendant alone drafted the contract.

See Appellant’s Brief at 3. For the reasons set forth, we affirm.

At various times over the course of the past twenty years, appellants, a class of independent insurance agents, each entered into separate boilerplate agency agreements with appellee which authorized each agent to solicit and issue a variety of insurance contracts for appellee. Paragraph 4 of the agreements which had been drafted by appellee, provided:

As full compensation for services, Company shall pay Agent commissions on premiums written and paid for at the rates specified in schedule(s) attached. Agent shall pay Company return commission at the same rates on any return premiums, including return premiums on cancellations ordered or made by Company. Where no commission rate has been specified, but insurance has been submitted and accepted by Company, the rates shall be determined by Company. The schedule(s) of commissions allowable shall be determined by Company. The schedule of commissions allowable shall be subject to change by Company at any time by written notice to Agent respecting insurance written or renewed thereafter.

Agency Agreement, ¶ 4.

The first schedule of commissions which took effect on January 1, 1975, outlined a series of commission rates which awarded an agent a percentage of the insurance premiums that agent had captured. The commission rates varied in accordance with the types of insurance policies issued. A distinction in commission rates was also made between first term and renewal insurance. The January 1, 1975 schedule of commissions was standard in several agency agreements between appellee and independent agents until December 16, 1983.

On November 10, 1983, appellee notified appellants that pursuant to paragraph 4 of the agency agreement, a new schedule of commissions would be implemented. This revised schedule, effective December 16, 1983, altered the categorization of insurance policies by creating new subdivisions with different commission rates. The schedule, for the first time, also looked retrospectively at the premium levels attained by individual agents the previous year in assigning rates of commission, rewarding the agents for attaining higher totals in premium levels. Appellee also implemented an Agency Voluntary Profit Sharing Plan, for which an agent’s three year loss ratio was one of the key factors used to determine the additional compensation paid to that agent.

On February 7, 1990, the Pennsylvania General Assembly enacted certain legislation known as “Act 6”, amended inter alia Title 75 of the Pennsylvania Consolidated Statutes, 75 Pa.C.S. § 1791 et seq., which in pertinent part, directed insurers to reduce the costs of automobile insurance to their customers by 22%, effective July 1, 1990. As part of the steps taken to reduce the cost of automobile insurance, in compliance with Act 6, appellee sent written notices to appellants, by letters dated November 1, 1990, of a new schedule of commissions for automobile insurance, to become effective by December 16, 1990. This proposed schedule combined elements of the 1983 schedule and the Agency Voluntary Profit Sharing Plan and required individual agents to assume a limited loss ratio on certain classes of automobile insurance policies which he or she had written.

On December 14, 1990, appellants filed a complaint in the United States District Court for the Eastern District of Pennsylvania, seeking declaratory and injunctive relief from the proposed schedule of commissions. On August 19, 1991, the Honorable Daniel B. Huyett, III entered an order dismissing the action for lack of subject matter jurisdiction. See Ardrey v. Federal Kemper Ins. Co., 798 F.Supp. 1147 (E.D.Pa.1992) (opinion dismissing action).

On July 16, 1992, appellants initiated this class action in the Court of Common Pleas of Lancaster, PA, asserting that the December 16, 1990 schedule of commissions was contrary to the original intent of the parties in drafting the agency agreements. In the alternative, appellants argued that the contracts were ambiguous and should be construed against their drafter, appellee. Appellants asserted damages in excess of $20,000.00 for each of approximately 200 agents affected by the December 16,1990 schedule. On February 17,1993, appellants were granted class certification. Thereafter, on September 10, 1993, appellants filed a motion for summary judgment. On October 12, 1993, appellee filed a cross-motion for summary judgment asserting that appellants had no legally cognizable damages and were further estopped from bringing the action in a second forum. Following oral argument and the filing of extensive briefs by the parties, the trial court entered summary judgment in favor of appellee on June 3, 1994. This timely appeal followed.

Preliminarily we note, that summary judgment may be granted if “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.” Green v. Dolsky, 433 Pa.Super. 556, 641 A.2d 600 (1994). Moreover, a “trial court’s grant of summary judgment will only be reversed for an error of law or a clear abuse of discretion.” Id. (citing Myszkowski v. Penn Stroud Hotel, Inc., 430 Pa.Super. 315, 634 A.2d 622 (1993)). With this standard in mind, we now review appellants’ claims.

Appellants contend that the trial court erred in granting appellee’s motion for summary judgment. Specifically, appellants argue that the term “commission”, contained within paragraph 4 of the agency agreements, is susceptible to more than one interpretation. In support of their position, appellants direct this court to the following definition within Black’s Law Dictionary of “commission”:

The recompense, compensation or reward of an agent, salesman, executor, trustee, receiver, factor, broker, or bailee, when the same is calculated as a percentage on the amount of his transactions or the profit to the principal. A fee paid to an agent or employee for transacting a piece of business or performing a service.

Black Law Dictionary (6th ed. 1990). Appellants also quote the following definition of “commission” from the Random House Dictionary:

A fee paid to an agent or employee for transacting a piece of business or preforming a service; esp. a percentage of the money received from a total paid to the agent responsible for the business.

Random House Dictionary of the English Language (unabridged 1983 edition). It is appellants’ belief that these two definitions demonstrate an ambiguity within the agency agreements.

A contract is ambiguous if it is “reasonably susceptible of different constructions, is obscure in meaning through indefiniteness of expression or has a double meaning.” Department of Transp. v. IA Const. Corp., 138 Pa.Commw. 587, 588 A.2d 1327 (1991). Where such an ambiguity does exist, a party may only be bound to a meaning of a term if he has reason to know of it. Restatement 2d of Contracts § 200, comment b. However, where the words of a contract are clear and unambiguous, its meaning is to be ascertained in accordance with its plainly expressed intent. Lindstrom v. Pennswood Village, 417 Pa.Super. 495, 612 A.2d 1048 (1992); Warren v. Greenfield, 407 Pa.Super. 600, 595 A.2d 1308 (1991). See generally 4 Williston On Contracts § 601 (3rd Ed.1961). In defining the intent of the contracting parties, each and every part of the contract must be taken into consideration and given effect, where possible. Wrenfield Homeowners Ass’n v. DeYoung, 410 Pa.Super. 621, 600 A.2d 960, 963 (1991) (citing Marcinak v. Southeastern Greene School Dist., 375 Pa.Super. 486, 491, 544 A.2d 1025, 1027 (1988)); West Dev. Group, Ltd. v. Horizon Fin., F.A., 405 Pa.Super. 190, 592 A.2d 72 (1991) (citing Cerceo v. DeMarco, 391 Pa. 157, 137 A.2d 296 (1958)); Warren, 407 Pa.Super. 600, 595 A.2d 1308 (in reviewing a contract, the primary goal is to uncover the intent of the parties). See generally Restatement 2d of Contracts § 201, comment a. See also Utica Mut. Ins. Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984) (where contract exists without a history of bargaining over terms, construction of individual terms of that contract is a question of law).

In the instant case, paragraph 4 of the agency agreements assign appellants “commissions on premiums written and paid for, at rates specified in the schedule(s) attached.” As appellants correctly note, the main body of the contract does not define the term “commission”. However, in the attached schedule, “commission” is defined as a percentage of the premiums attained. The main body of the agency agreements further provides that “[t]he schedules of commissions allowable shall be subject to change by Company at any time by written notice to Agent respecting insurance written or renewed thereafter.” As the form which the commission would take was defined within the schedule and as the schedule was subject to unilateral change by appellee, upon notice to appellants, we conclude that the form which the commission would take was also subject to unilateral determination by appellee. Cf. 19 Pa.Law Encyclopedia § 32 (“Sureties are not exonerated by a change, not to the detriment of the agent, in the rate of commissions allowed on new business, when there is no stipulation in the bond, or in the original agreement between the agent and the company, that the commissions should remain fixed and unaltered.”).

Appellants also argue that the inclusion of an agent’s loss ratio in the calculation of that agent’s commission was a method so unforeseeable that appellants could not be bound to the terms of the contract.

A party’s failure to anticipate all possible repercussions of a bargained for contract, is insufficient to render the contract invalid. Simeone v. Simeone, 525 Pa. 392, 581 A.2d 162 (1990) (contracting parties are normally bound by their agreements, without regard to whether terms thereof were read and fully understood and irrespective of whether agreements embodied reasonable or good bargains). See generally 8 Pa.Law Encyclopedia § 82. Here, the agency agreements entered into by the parties assigned appellee carte blanche in determining appellants’ commission. Implicit in the agreement was the unqualified right to change appellants’ commission, upon notice to appellants, as well as the right to change the method of calculating appellants’ commission. There is no evidence that any of the agents ever discussed with appellee the factors to be considered in allocating the commission. Appellants’ disillusionment upon recognizing the expansive control they had afforded appellee in determining compensation does not, without more, invalidate the agency agreements. See, e.g., Community Sports Inc. v. Denver Ringsby Rockets Inc., 429 Pa. 565, 240 A.2d 832 (1968) (agreement giving player right to join any team in another league, executed upon player’s signing contract for season’s play was valid part of entire contract and enforceable).

Appellants, however, further contend that the 1990 schedule fails to treat agents attaining the same dollar volume of business equally.

We note, that in the instant case, appellants entered into separate and distinct agency agreements with appellee, as individual agents rather than as a group. Each agreement ascribed the liabilities and rights between an individual agent and appellee, including the compensation due that individual agent upon fulfillment of his obligations to Company. Where, as here, parties to an agreement do not intend to assign rights beneficial to a third person or fail to indicate the intention to confer within the contract, that third person may not acquire rights under the contract. R.M. Shoemaker Co. v. Southeastern Pennsylvania Economic Dev. Corp., 275 Pa.Super. 594, 419 A.2d 60 (1980). See also 8 Pa.Law Encyclopedia § 201. Moreover, none of the agreements provided that the commission received by an agent should be equal to that received by other agents with the same volume of premium dollars. Warren, 407 Pa.Super. 600, 595 A.2d 1308 (only the intent of the contracting parties may be given effect). See, e.g., MacAleer v. Sun Oil Co., 280 Pa.Super. 148, 421 A.2d 449 (1980) (there was no basis for judgment for former employees in class action against employer to provide rights not assigned employees as third-party beneficiaries to contract between employer and insurer). See generally 8 Pa.Law Encyclopedia §§ 143, 144. The mere fact that the contracts entered into by appellants were substantially similar does not imply that the rights received by appellants under those contracts would always remain the same, nor does it impose a duty upon appellee to contract in a manner which treats all agents similarly. Accordingly, we affirm the order of the trial court.

Affirmed.

      . Following filing of the instant action, Federal Kemper Insurance Company, the named defendant in the complaint, was purchased by The Associated Group and renamed Insurance Company of Decatur. On June 8, 1994, an order was entered substituting the name "Insurance Company of Decatur" for the name "Federal Kemper Insurance Company.”

      . Modifications were subsequently made to the schedule on January 16, 1984. The changes, however, did not alter the structure of the November 10, 1983 schedule.

      . The loss ratio utilized in the 1990 schedule reflected the dollar amount paid by the insurance company on claims made on an individual agent’s book of business over the prior three year period.

      . In the order dismissing the case, the court stated that the agreement was unclear and ambiguous as to whether such a fundamental change in the method of calculating commissions could be implemented. Ardrey v. Federal Kemper Ins. Co., No. 90-7912 (E.D.Pa. Aug. 1991) (order granting motion to dismiss). The court further stated that the inclusion of loss ratio "contradicts a long standing insurance industry practice and past practice between the parties.” Id. However, as the district court’s findings were not essential to the judgement rendered by that court, those findings have no preclusive effect on this action. Clark v. Troutman, 509 Pa. 336, 502 A.2d 137 (1985).

      . Appellants’ argument would have us presume that at no point prior to the proposed 1990 schedule, had loss ratio been a factor considered in determining commission. Not only is this argument belied by appellee's practice of placing agents with high loss ratios on a plan of rehabilitation and reducing the rate of their commission as well as the implementation of the loss ratio based profit sharing plan, but also by sound business acumen. No doubt the 1975 schedule had evenly distributed a portion of the losses incurred from the insurance policies among appellants within the same premium levels. The 1990 schedule, however, did not distribute the losses uniformly amongst the agents but instead assigned each individual agent a portion of the losses incurred from that agent's book of business.

      . We note, that appellants are not precluded from seeking to modify their agency agreements nor from asserting their rights to cancel their contracts with appellee.


author: WIEAND, Judge:

text:
    656 A.2d 941
    Thomas E. BOYLE and Janice L. Boyle, Husband and Wife, Appellees, v. ERIE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 12, 1994.
    Filed April 4, 1995.

      David M. Speer, Clarion, for appellant.
    James G. Arner, Clarion, for appellees.
    Before WIEAND, HUDOCK and HESTER, JJ.
   WIEAND, Judge:

On January 7, 1986, Thomas and Janice Boyle were traveling north on Route 68 in Monroe Township, Clarion County, in a vehicle driven by Thomas Boyle. When Boyle slowed his car to allow a vehicle driven by Charles Speelman to enter the flow of traffic, his vehicle was struck in the rear by a truck driven by Dale Lee Hitchcock. The Boyles brought a civil action for injuries against both Speelman and Hitchcock. The litigation was settled by agreement with Speelman for $15,000 and with Hitchcock for $150,000. The settlement with Speelman was for the limits of his liability coverage; however, the settlement with Hitchcock was a compromise and exhausted only fifty (50%) percent of his liability coverage.

The Boyles then made a claim under the underinsured motorist provisions of their own liability policy with Erie Insurance Company (Erie). Erie denied coverage because the Boyles had not exhausted the limits of Hitchcock’s liability policy and because the Boyles had settled with the third party tortfeasors without Erie’s consent. In a declaratory judgment proceeding by the Boyles against Erie, the trial court rejected the insurer’s arguments and held that the Boyles were entitled to recover underinsured motorist benefits. This appeal followed.

At the time of this accident, Section 1731 of the Motor Vehicle Financial Responsibility Law mandated uninsured and underinsured motorist coverage. 75 Pa.C.S. § 1731(a). The purpose of such coverage was to protect an insured driver from the risk that a negligent driver of another vehicle would cause injury to the insured but would not have adequate coverage to compensate for the insured’s injuries. Daley-Sand v. West American Ins. Co., 387 Pa.Super. 630, 633, 564 A.2d 965, 967 (1989).

The policy issued by Erie Insurance Company in this case included underinsured and uninsured motorist coverage, but was subject to the following provision:

With respect to underinsured motor vehicles, we will not be obligated to make any payment until the limits under all bodily injury insurance policies and liability bonds applicable at the time of the accident, including other than motor vehicle insurance, have been exhausted by payment of settlements or judgments.

Erie Insurance contends that the appellees’ claims for under-insured motorist benefits should be denied because they failed to exhaust the liability coverage provided by the policies issued to both tortfeasors. The interpretation to be placed upon this clause, therefore, is squarely before this Court for decision.

In Kester v. Erie Ins. Exchange, 399 Pa.Super. 206, 582 A.2d 17 (1990), allocatur denied, 527 Pa. 624, 592 A.2d 45 (1991), the plaintiff-insureds had accepted a settlement from the third party tortfeasor’s liability carrier for the full amount of the coverage provided. Their insurance carrier denied liability for underinsured motorist benefits under an exhaustion of coverage clause because its insureds had failed to pursue an action against other possible tortfeasors, including the Pennsylvania Department of Transportation which maintained the highway on which the accident had occurred. In a unanimous opinion authored by Montemuro, J., the Court said:

There is no authority in Pennsylvania for the proposition that exhaustion clauses per se are contrary to the intent of the legislature or violative of constitutional or administrative mandates. This question is, in any event, not before us. We are limited to a determination of whether the particular exhaustion clause contained in appellant’s policy is contrary to public policy as expressed in the underinsured motorist statute. We find that it is.
The clause contained in appellants’ policy expands the field of those liable to include anyone from whom recovery for appellants’ injuries might be imagined possible. Given the breadth of the exhaustion clause, these imaginings apparently need have no factual underpinning, nor any real relation to the purpose of underinsured motorist coverage. However, as the statute, its commentators, and the policy language make clear, only owners or operators of motor vehicles are included within the circle of those liable under the underinsurance procedure. The all-inclusive language of the clause is too broad, and too far beyond the intention of the statutes’ framers.

Id., 399 Pa.Super. at 212-213, 582 A.2d at 21 (footnote omitted). Consistently therewith, we hold that exhaustion clauses are not per se invalid, but they cannot validly be interpreted to require an insured to seek recovery from other than the owners and operators of vehicles involved in the accident.

In the instant case, the appellee-insureds settled their tortfeasor claims against the drivers of the other vehicles. One of these settlements, however, was for less than the maximum coverage provided by the tortfeasor’s liability insurance. Erie’s policy provides that it shall not be obligated to pay underinsured motorist benefits until the limits of liability have been exhausted by payment of settlements or judgments. Does this clause in Erie’s policy bar the plaintiff-insureds’ claim for underinsured motorist benefits?

To enforce the policy language strictly would have the effect of failing to provide the protection intended by the legislature for an insured driver. In some cases it may prevent an injured insured from accepting a reasonable, third party settlement and require that the third party litigation be pursued to final judgment. This would delay recovery when prompt payment was needed, would lessen the insured’s recovery by requiring him or her to pay additional costs, and would unnecessarily burden the judicial system. “Where the best settlement available is less than the [tortfeasor’s] liability limits, the insured should not be forced to forego settlement and go to trial in order to determine the issue of damages.” Schmidt v. Clothier, 338 N.W.2d 256, 260-261 (Minn.1983).

On the other hand, an exhaustion clause must be interpreted to provide protection to an insurance company against a demand by its insured to fill the “gap” after a weak claim has been settled for an unreasonably small amount. The statutorily mandated coverage for underinsured motorist benefits was not intended to permit the insured absolute and arbitrary discretion to determine how payment should be apportioned between his or her own insurance company and the tortfeasor’s liability carrier. This was poignantly observed by the Supreme Court of Minnesota as follows:

[T]he insured cannot obtain a below-limit settlement from the tortfeasor and then recoup the “gap” from the underinsurance carrier. Practically, the insured would have no incentive to obtain the best settlement if he or she is assured of recovering the “gap” from the underinsurer. Use of underinsurance benefits in this way runs counter to the agreement of the parties. It would also place the underinsurer at an unfair disadvantage in which it had no control over the insured’s right to settle but yet had to pay the difference between the settlement and the liability limits. It might also lessen the incentive of the liability carrier to make its best offer to the claimant.

Schmidt v. Clothier, supra, 338 N.W.2d at 261.

We conclude, therefore, that the conflicting interests of insured and insurer can best and most fairly be served by construing the exhaustion clause in this case as a “threshold requirement and not a barrier to underinsured motorist insurance coverage.” Bogan v. Progressive Casualty Ins. Co., 36 Ohio St.Sd 22, 28, 521 N.E.2d 447, 453 (1988), modified in part on other grounds, McDonald v. Republic-Franklin Ins. Co., 45 Ohio St.3d 27, 543 N.E.2d 456 (1989). Thus, when the insureds settled their claim against the tortfeasor’s liability carrier for less than policy limits, the underinsured motorist carrier was entitled to compute its payment to its injured insureds as though the tortfeasor’s policy limits had been paid. Accord: Hamilton v. Farmers Ins. Co. of Washington, 107 Wash.2d 721, 728, 733 P.2d 213, 217 (1987). Under this view, the insureds will not be allowed underinsured motorist benefits unless their damages exceed the maximum liability coverage provided by the liability carriers of other drivers involved in the accident; and their insurer will, in any event, be allowed to credit the full amounts of the tortfeasors’ liability coverages against the insureds’ damages. The courts of other jurisdictions have applied a similar view. See: Aetna Casualty & Surety Co. v. Farrell, 855 F.2d 146 (3rd Cir.1988) (applying New Jersey law); Schmidt v. Clothier, supra, 338 N.W.2d 261; Shaw v. Continental Ins. Co., 108 Nev. 928, 840 P.2d 592 (1992) (per curiam); Longworth v. Van Houten, 223 N.J.Super. 174, 538 A.2d 414 (1988); McDonald v. Republic-Franklin Ins. Co., supra, 45 Ohio St.3d 27, 543 N.E.2d 456; Bogan v. Progressive Casualty Ins. Co., supra, 36 Ohio St.3d 22, 521 N.E.2d 447; Buzzard v. Farmers Ins. Co., 824 P.2d 1105 (Okl.1991); Hamilton v. Farmers Ins. Co. of Washington, supra, 107 Wash.2d 721, 733 P.2d 213.

Erie’s contention that the present action is barred by the plaintiff-appellees’ failure to obtain Erie’s consent before settling with the tortfeasor is, under the facts of this case, without merit. As a general rule, it is correct, as Erie contends, that an insured who consummates a settlement with and releases a tortfeasor in violation of a consent to settle clause in his or her policy may not recover underinsured motorist benefits from the insurer. Archer v. State Farm Ins. Co., 419 Pa.Super. 558, 615 A.2d 779 (1992), allocatur denied, 535 Pa. 612, 629 A.2d 1375 (1993). To hold otherwise would be to permit the insured to jeopardize the insurer’s right of subrogation against the third party tortfeasor. Id. When the insured submits a proposed third party settlement to his or her insurer and requests consent, however, the insurer is required to grant or deny consent without undue delay. Fisher v. USAA Casualty Ins. Co., 973 F.2d 1103 (3rd Cir.1992) (applying Pennsylvania law); Daley-Sand v. West American Ins. Co., supra, 387 Pa.Super. 630, 564 A.2d 965.

Here, the insurer was requested to give consent to the settlements and for more than ten months failed to grant or deny consent. Thereafter, the plaintiff-appellees consummated their settlements with the third party tortfeasors. Under these circumstances, Erie will not now be heard to complain that the consent to settlement clause was violated by its insureds. Not only was due notice given, but Erie had ample time within which to act to preserve its right of subrogation.

The order of the trial court granting declaratory judgment, as modified by the foregoing opinion, is affirmed.

      . This section of the statute was amended in 1990.


author: DEL SOLE, Judge:

text:
    656 A.2d 944
    Ellen K. DETWILER, Appellant, v. Ronald E. BRUMBAUGH and Nancy J. Brumbaugh, Appellees.
    Superior Court of Pennsylvania.
    Argued Feb. 1, 1994.
    Decided April 4, 1995.

      Catherine Waggle, Pittsburgh, for appellant.
    Lauralee A. Snyder, Hollidaysburg, for appellees.
    Before DEL SOLE, FORD ELLIOTT and MONTGOMERY, JJ.
   DEL SOLE, Judge:

The issue before this court is whether Section 4-497 of the Pennsylvania Liquor Code insulates employees of a licensee from liability to third persons when they serve a visibly intoxicated customer. We hold that it does not insulate the licensee’s employee and, therefore, we vacate the trial court’s Order dismissing Appellant’s Complaint.

Appellant, Ellen K. Detwiler, filed suit against, Appellees, Ronald E. Brumbaugh and Nancy J. Brumbaugh, alleging that she sustained serious injuries as the result of a motor vehicle accident during which her car was struck by a vehicle operated by David Marion Dubbs, an individual who died as a result of the crash and had allegedly consumed alcoholic beverages, just prior to the accident at The Creekside Inn. Appellant claimed that Dubbs was operating his vehicle while under the influence of alcohol and that Appellees were responsible for providing him with the drinks that caused his intoxication. The Complaint averred that Appellees were the owners, managers, and/or proprietors of a corporation known as The Creekside Inn and that the Inn was licensed for the sale and service of alcoholic beverages by the Pennsylvania Liquor Control Board. The corporation was not named as a defendant. The trial court dismissed the action by granting Appellees’ preliminary objections in the nature of a demurrer holding that only licensees could be held liable to third parties for a violation of Pennsylvania’s Dram Shop Act. This appeal followed.

The standard of review that we apply in determining whether a trial court acted properly in sustaining preliminary objections in the nature of a demurrer has been set forth as follows:

All material facts set forth in the pleadings as well as all inferences reasonably deducible therefrom are admitted as true for the limited purpose of this review. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. In reviewing the grant of a demurrer we are not bound by the inferences drawn by the trial court, nor are we bound by its conclusions of law. Furthermore, we will affirm the grant of such a motion only when the moving party’s right to succeed is certain and the case is so free from doubt that further proceedings would clearly be fruitless.

Foflygen v. R. Zemel, M.D. (P.C.), 420 Pa.Super. 18, 32, 615 A.2d 1345, 1352 (1992), appeal denied 535 Pa. 619, 629 A.2d 1380 (1993) citing Valley Forge Towers v. Roru-Ike F. Ins., 393 Pa.Super. 339, 345, 574 A.2d 641, 644 (1990), aff'd per curiam, 529 Pa. 512, 605 A.2d 798 (1992).

After careful examination, we conclude that the trial court’s holding that Section 4-497 insulates individual employees of a licensee is an erroneous interpretation of the statute.

Section 4-497 specifically states that:

[n]o licensee shall be liable to third persons on account of damages inflicted upon them off of the licensed premises by customers of the licensee unless the customer who inflicts the damages was sold, furnished or given liquor or malt or brewed beverages by the said licensee or his agent, servant or employee when the said customer was visibly intoxicated.

47 P.S. § 4-497.

The trial court held that liability to third parties is grounded in this provision and read Section 4-497 .to make only licensees potentially liable to third parties. We disagree. Section 4-497 is clearly a limiting provision designed to specifically shield licensees from liability to third parties except in those instances where the patron served was visibly intoxicated.

The limiting nature of Section 4-497 was recognized in Reber v. Commonwealth of Pennsylvania Liquor Control Board, 101 Pa.Cmwlth. 397, 516 A.2d 440 (1986), where the Liquor Control Board attempted to shield itself from liability for injuries that resulted to a third person as the result of a liquor sale that was made to a minor. The Board argued that even though it was not a licensee, it was immune from third party liability under Section 4-497. Our sister court, the Commonwealth Court, rejected the Board’s argument and held that Section 4-497 could not insulate the Liquor Control Board from liability when its employees sold alcoholic beverages to a minor. The Court stated, “[b]y its terms, section 497 shelters licensees only.” Reber at 402, 516 A.2d at 443.

It is clear that Section 4-497 acts as a shield restricting liability instead of a provision defining where it is to apply. As Appellant correctly argues, “[t]his section does not create a cause of action against a licensee but in fact limits the extent of a licensee’s liability.” Accordingly, we hold that the trial court erred in concluding that “civil liability to third persons for a Dram Shop violation is limited to the licensee”. (Trial Court Opinion at page 2).

Traditionally, liability is established after a finding is made that a duty existed, a breach of that duty occurred and the resulting harm was proximately caused by the breach. Fennell v. Nationwide Mutual Fire Insurance Company, 412 Pa.Super. 534, 603 A.2d 1064 (1992), allocatur denied 533 Pa. 600, 617 A.2d 1274 (1992). Section 4-493 of the Liquor Code sets forth the duties associated with the service of alcohol. It reads, in pertinent part, as follows:

It shall be unlawful—

furnishing liquor or malt or brewed beverages to certain persons
(1) For any licensee ... or any employee, servant or agent of such licensee ... to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated ...

47 P.S. § 4-493(1).

This section clearly imposes a duty on those parties identified to refrain from selling liquor to a visibly intoxicated individual. “A violation of the requirements of this statute is deemed negligence per se, and if the violation is the proximate cause of the plaintiffs injuries, then the defendant is liable.” McDonald v. Marriott Corp., 388 Pa.Super. 121, 564 A.2d 1296, 1298 (1989) citing Couts v. Ghion, 281 Pa.Super. 135, 141, 421 A.2d 1184, 1187 (1980) [additional citations omitted]. Thus, where those on whom a duty has been imposed not to serve visibly intoxicated patrons, breach that duty, those persons may be responsible where their actions are found to be a substantial factor in causing an injury. By imposing potential liability on employees of a licensee who are responsible for making the determination of whether a patron is visibly intoxicated, there is a better chance that patrons will not be served when they should not be served.

In the present case, Appellant averred in her Complaint that Appellees, personally, or by those who they supervise, violated Section 4-493(1). She further averred that because of Appellees’ actions, she sustained injuries when the car that she was driving was struck by a car that was operated by Mr. Dubbs who had just left the Creekside Inn and was still intoxicated.

Having reviewed Appellant’s Complaint, we conclude that she has clearly averred sufficient facts that, if proven, would allow for recovery. Therefore, we vacate the trial court’s Order granting Appellees’ preliminary objections in the nature of a demurrer.

Order vacated.


author: ROWLEY, President Judge:

text:
    656 A.2d 1369
    COMMONWEALTH of Pennsylvania, v. Gavin McCLOSKEY, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 5, 1994.
    Filed March 30, 1995.

      Patrick J. Connors, Asst. Public Defender, Media, for appellant.
    Louis G. Stesis, Asst. Dist. Atty., Media, for Com., appellee.
    Before ROWLEY, President Judge, and KELLY and CERCONE, JJ.
   ROWLEY, President Judge:

Appellant Gavin McCloskey was convicted after trial by jury of voluntary manslaughter and recklessly endangering another person. He appeals the judgment of sentence, alleging that the trial court erred in 1) not suppressing inculpatory statements made before appellant was given Miranda warnings, 2) failing to declare a mistrial for statements made by the Commonwealth during its closing argument, and 3) refusing to include the offense of involuntary manslaughter on the verdict slip after several times charging the jury on the elements of the crime. Because we find merit to appellant’s final claim of error, we vacate the judgment of sentence for voluntary manslaughter and remand for a new trial.

With respect to appellant’s first claim, that the trial court should have suppressed statements he made to police prior to receiving Miranda warnings, we are limited to a review of the record for support for the trial court’s factual findings and the propriety of legal conclusions drawn therefrom, considering only evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted. Commonwealth v. Daniels, 404 Pa.Super. 272, 590 A.2d 778 (1991). Our review discloses ample support for the trial court’s factual findings, and the absence of legal error in concluding that the statements appellant made were admissible.

Shortly before 1:00 A.M. on March 17,1993, an officer of the Glenolden Police Department responded to a radio call that a shooting had just occurred within a block or two of his patrol location. When the officer arrived on the scene, he encountered a man in the driveway who advised him that his cousin had been shot, and was still upstairs. As the officer entered the apartment building, he bumped into appellant immediately inside the outer door to the front hall and asked, “What’s going on?” When appellant responded, “I am the shooter,” the officer asked who was shot. Appellant answered, “Walt was shot; he’s an off-duty cop; he’s upstairs; he came banging on my door over a parking space we had been fighting over; he scared me and I shot him.” Order (Cronin, J.), 7/23/93, at 2. The officer placed appellant in custody, turned him over to officers arriving on the scene, and asked them to put appellant in their car. Appellant made no further statements, and was later transported to the police station.

Appellant contends that anything he said after “I am the shooter” should have been suppressed due to the officer’s failure to inform him of his Miranda rights. A review of the record, however, supports the trial court’s factual findings that appellant was not in custody as he encountered the officer, and that the questions the officer directed to appellant were of a general, investigative nature, designed to verify the identity and number of possible victims. Appellant could have said nothing, or stopped after stating, “Walt,” in response to the officer’s question, “Who was shot?” Instead, appellant provided additional details. There is no support in the record for a finding other than that appellant’s responses to the officer’s investigatory questions were spontaneously uttered, not the product of custodial interrogation, and not “calculated to, expected to, or likely to evoke admission.” Daniels, 404 Pa.Super. at 279, 590 A.2d at 781, quoting Commonwealth v. Simala, 434 Pa. 219, 226, 252 A.2d 575, 578 (1969). Appellant’s motion to suppress his statements was properly denied.

With respect to appellant’s claim that the trial court erred in omitting the charge of involuntary manslaughter from the verdict slip, there is no longer a question under the law of this Commonwealth that if the evidence in a homicide trial supports a verdict of involuntary manslaughter, the offense is “an issue in the case, and a charge on involuntary manslaughter must be given if requested.” Commonwealth v. Draxinger, 345 Pa.Super. 554, 558, 498 A.2d 963, 965 (1985); Commonwealth v. Williams, 537 Pa. 1, 30, 640 A.2d 1251, 1265-66 (1994) (“mercy charge” on involuntary manslaughter in homicide trial, formerly required under Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142 (1974), now limited by Commonwealth v. White, 490 Pa. 179, 415 A.2d 399 (1980), to cases in which evidence supports such a verdict). Stated as a three-part inquiry, we look to see, first, whether appellant made a timely request for an instruction on involuntary manslaughter, second, whether the offense was made an issue in the case, and finally, whether the evidence at trial could support a verdict of involuntary manslaughter. Commonwealth v. Rogers, 419 Pa.Super. 122, 135, 615 A.2d 55, 61 (1992).

Appellant was clearly charged with involuntary manslaughter, and the jury was so informed; the trial court briefly outlined the elements of the offense for the jury prior to the Commonwealth’s presentation of its case. N.T., 9/15/93, at 35, 38. And there is no dispute that appellant made a timely request for an instruction on involuntary manslaughter.

At the close of its evidence, the Commonwealth notified the trial court and defense counsel that it would withdraw three of the original charges against appellant, including involuntary manslaughter. Defense counsel responded that he would nonetheless request an involuntary manslaughter instruction. The Commonwealth then withdrew its withdrawal of the charge and requested the trial court to “leave Involuntary Manslaughter in.” N.T., 9/16/93, at 30.

At the close of evidence for the defense and prior to closing arguments, however, the trial court permitted the Commonwealth to withdraw the charge of involuntary manslaughter:

MR. LYNCH: Your Honor, I had indicated earlier to the Court that it is the Commonwealth’s intention to withdraw the charge of Involuntary Manslaughter, albeit the Court has initially told the jury that the Defendant is charged with that, I feel the only comment I would make, and I think it is a fair comment, sir, is that although the Court is going to charge Involuntary Manslaughter, the Commonwealth does not believe it is in this case and we have withdrawn that charge, and I don’t have to make any more comment than that, sir.[ ]
MR. DIMATTEO: Your Honor, I think it is in this case, and I’m going to ask the Court [to] charge on it because [the jury] could find the Defendant acted recklessly.
MR. LYNCH: Your Honor, I agree that Mr. DiMatteo is entitled to [the] charge, I think I’m entitled to say what I just said and nothing more.
THE COURT: All right. You’re in agreement to say that the Defendant is entitled to a charge, the effect that he directly caused, the death of another person by reckless or grossly negligent conduct?
MR. LYNCH: Yes, sir, I am. It’s my understanding of the law that since that is his defense, sir, that he is entitled to that, and I can’t deprive him of it if he requests the Court to make that charge. I’m not joining with him in that request, sir, by any way, shape, manner or form.
******
THE COURT: All right. The Commonwealth will prepare to withdraw their charge of Involuntary Manslaughter. I will instruct the jury on the charges of Involuntary Manslaughter.

Id., 9/17/93, at 3-5 (emphasis and footnote added). The pivotal question for our review, then, is whether the evidence at trial would have reasonably supported a verdict of involuntary manslaughter. If it would not, and the Commonwealth’s request to withdraw involuntary manslaughter was based upon its belief that the offense was not “in this case[,]” N.T., 9/17/93, at 4, the trial court erred and appellant was not entitled to the instruction in any event, for “it has long been the rule in this Commonwealth that a trial court should not instruct the jury on legal principles which have no application to the facts presented at trial.” White, 490 Pa. at 182, 415 A.2d at 400. Moreover, “[t]o charge a jury on extraneous offenses in homicide trials is inapposite and detrimental to the sound administration of justice.” Id., at 184, 415 A.2d at 401. It was the duty of the trial court to determine, as a matter of law, whether the evidence supported an involuntary manslaughter instruction. If it did, appellant was entitled to be found guilty or innocent of the charge.

The evidence at trial established that appellant and the victim lived in the same apartment building and had a history of arguments over the victim’s use of what appellant considered to be his parking space. After work on the night of March 16, 1993, appellant visited a friend who was in the process of completing a firing range, and had loaded and taken along a replica antique black powder pistol, hoping to be able to fire it. Appellant testified that the pistol was the only weapon he owned, that he had only fired it twice in the previous two years since it was given to him, and that he had been told that the only safe way to unload it was to fire it. N.T., 9/16/93, at 119. Appellant testified that it became too dark to fire his pistol at his friend’s firing range, and he returned home at approximately 10:00 P.M. When appellant arrived, he found the victim’s car in the “spot I usually parked in[.]” Id. at 123. Expecting to be the first to leave in the morning, at approximately 3 A.M., appellant blocked the victim’s car with his own, went to his apartment, and fell asleep on the couch, leaving the loaded pistol on the coffee table in front of him. The trial court accurately summarizes the facts leading to the victim’s death:

[T]he defendant was awakened from sleeping on his couch by a loud banging on the door of his apartment. He arose from the couch and his apartment door flew open. The defendant was very scared and thought he needed to defend himself. The defendant stood up, grabbed the pistol and saw a massive silhouette in his doorway. The defendant screamed and started towards the massive silhouette. As the massive silhouette backed into the light of the apartment house hallway, the defendant recognized it to be Walter Smith. The defendant was shaken because of previous run-ins with Walter Smith. The defendant stood by the door of his apartment while Walter Smith stood in the apartment house hallway. The defendant testified that Walter Smith pushed the defendant up against the door and jamb and the defendant had the black-powder pistol at his side. The defendant was off-balance with Walter Smith’s chest in his face. Walter Smith recognized the black powder pistol and stepped back from the defendant when the defendant advised Walter Smith that the [ ] pistol was a .44 caliber. Walter Smith moved away from the defendant and as Walter Smith started back up the stairs leading from the second floor to the third floor, Walter Smith turned to face the defendant, placed his hands together and yelled out “I’ll show you a fucking arsenal.” The defendant believed that Walter Smith meant to kill the defendant; the defendant fired the black powder pistol[,] fatally wounding Walter Smith. The defendant returned to the kitchen and called 911 seeking assistance.

Opinion (Cronin J.), filed 3/24/93, at 8-9 (citations to transcript omitted). Appellant also testified that as he ran back into his apartment, he remembered the “flash and smoke” of the pistol, but that he “had never aimed it, never saw anything else.... I thought, my God, I fired this gun off. And for all I knew, it could have gone anywhere.” N.T., 9/16/93, at 151. Appellant then heard the victim “screaming in pain. And the[n] it hit me, you know, that I must have hit him. And my first thought was to call for help.” Id.

There were no eyewitnesses to the shooting. The Commonwealth disputes the victim’s entry into appellant’s apartment, and produced two witnesses who overheard the argument between appellant and the victim. They agreed upon the essential subject matter of the dispute between the victim and appellant, and the length of time the two argued prior to the shooting. However, they presented conflicting testimony with regard to the position of the victim and appellant in the hallway outside appellant’s door, and how many times the victim turned and walked away from appellant. They also disagreed on the number of times appellant stated that he would shoot the victim if he touched appellant’s truck, which appellant never admitted saying at all. Id. at 184, 188. The Commonwealth also admitted into evidence the testimony of the Glenolden Chief of police, who processed appellant at the police station after the shooting. He testified that appellant spontaneously uttered remarks to the effect that he “couldn’t believe that he did this, he couldn’t believe how stupid he was, this was a stupid thing to do, I can’t believe that I did this, and he kept repeating it.” N.T., 9/15/93, at 133.

Under 18 Pa.C.S. § 2504(a) involuntary manslaughter requires evidence that the killing resulted from the “doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner.” On the basis of the evidence presented at trial, we find that involuntary manslaughter was an issue and that the jury, having rejected appellant’s claim of self-defense, could nonetheless reasonably have determined that appellant acted in a reckless or grossly negligent manner in causing the victim’s death. The trial court, therefore, did not err in acceding to appellant’s timely request for such an instruction.

This conclusion is strengthened in light of the jury’s verdict acquitting appellant of first and third degree murder, while finding him guilty of reckless endangerment. To reach this result, the jury was required to find that appellant consciously disregarded the risk of harm that could result from his conduct and “recklessly engag[ed] in conduct which placed [the victim] in danger of death or serious bodily injury.” N.T., 9/17/93, at 82; 18 Pa.C.S. § 2705 (emphasis added).

We do not disagree with the trial court’s contention that the evidence at trial sustains a finding that appellant committed a “deliberate and intentional act,” sufficient to support a verdict of voluntary manslaughter. Opinion, at 11. While the trial court emphasizes the fact that the “evidence in this case shows a deliberate shooting and the defense was one of self-defense,” id., it is stating the obvious to agree that if this were so, no instruction on involuntary manslaughter should have issued. Moreover, we cannot agree with the Commonwealth’s argument that there was no prejudice to appellant because he in fact received the involuntary manslaughter instruction he requested. Appellee’s Brief at 9.

The record establishes that, while technically the jury was charged on the elements of the offense, the trial court’s instruction posited the elements of involuntary manslaughter to the jury in the context of an affirmative defense, in an obvious attempt to accommodate both sides:

THE COURT: .. . Now, ladies and gentlemen, I have indicated to you that there are only three Homicide charges that you will consider; Murder in the First Degree, Murder in the Third Degree and Voluntary Manslaughter.
Involuntary manslaughter is a situation when a person causes the death of another person by reckless or grossly negligent conduct. The Defendant’s conduct does not have to be a positive kind of action. A failure to act [is] a sufficient conduct as long as the defendant had a legal duty to act. You may find the defense arises to Involuntary Manslaughter if you are satisfied the following three elements exist: first, that [the victim] is dead; second, that the Defendant’s conduct was a direct cause of his death; and third, the Defendant’s conduct was reckless or grossly negligent.
A defendant’s conduct including any failure to perform a legal duty is reckless when he is aware and consciously disregards a substantial and unjustifiable risk that death will result from his conduct, the nature and degree of this being such that it is grossly unreasonable for him to disregard it. A defendant’s conduct is grossly negligent when he should be aware of a substantial and unjustifiable risk that death will result from his conduct. The nature and degree of the risk being such that it’s grossly unreasonable for him to fail to recognize the risk.
******
[ ] If you find that the defense had bring them [sic] together in this case, arise to reckless or grossly negligent conduct on the part of the Defendant, you may not find him guilty of Murder or Voluntary Manslaughter.

Id. at 79-81 (emphasis supplied). To state that this instruction contains the seeds of confusion is an understatement; it clearly does not comport with the fundamental principle that every jury charge must (1) adequately and accurately reflect the law, and (2) be sufficient to guide the jury in its deliberations. Commonwealth v. Prosdocimo, 525 Pa. 147, 154, 578 A.2d 1273, 1274 (1990); Commonwealth v. Dillon, 386 Pa.Super. 236, 247, 562 A.2d 885, 891 (1989), rev’d on other grounds, 528 Pa. 417, 598 A.2d 963 (1991). Presenting the elements of a criminal offense in the context of an affirmative defense comes perilously close to shifting the burden to the defendant to prove himself guilty of involuntary manslaughter only as a means of proving himself not guilty of the greater crimes with which he was charged. This compounded the trial court’s error in failing to make a determination that if, consistent with the facts, appellant was entitled to the charge as a matter of law, then the offense should have been included on the verdict slip.

This does not end our inquiry, however. A new trial is not required if we are convinced, beyond a reasonable doubt, that the trial court’s error was harmless and could not have contributed to the verdict. Commonwealth v. Rush, 529 Pa. 498, 503, 605 A.2d 792, 794 (1992). Under the rule established in Commonwealth v. Story, 476 Pa. 391, 406, 383 A.2d 155, 162 (1978), the Commonwealth has the burden of showing, under the facts presented by this case, either that the error did not prejudice appellant or was de minimis, or that the uncontradicted evidence of guilt was so overwhelming, while the prejudicial effect of the error so insignificant, that the error could not have contributed to the verdict. Commonwealth v. Mayhue, 536 Pa. 271, 639 A.2d 421 (1994).

After careful review of the copious instructions given the jury, considered within the context of the facts and evidence presented at trial, we are unable to conclude, beyond a reasonable doubt, that the trial court’s error may not have contributed to appellant’s conviction for voluntary manslaughter. Contrary to the trial court’s suggestion, the evidence of appellant’s guilt on the voluntary manslaughter charge was not overwhelming. Even if the evidence could be considered overwhelming, our Supreme Court has determined that where error is found to have contributed to a verdict, it can never be harmless. Commonwealth v. Rodriguez, 533 Pa. 555, 561, 626 A.2d 141, 145 (1993). We disagree with the Commonwealth’s contention that had the jury found elements of involuntary manslaughter to exist, “they would have found the defendant not guilty[,]” and consequently there is no prejudice to the appellant attributable to the absence of the charge from the verdict slip. This begs the question of prejudice resulting from the possibility that, having found the defendant guilty of involuntary manslaughter, the jury was precluded from returning a verdict of guilt for the charge. Where a timely request for a jury instruction on involuntary manslaughter is made, the offense has been made an issue in the case, and the evidence at trial would support such a verdict, a defendant has the right to have the jury ascertain the degree of guilt on the charge. To hold otherwise would be to concede that the charge serves no purpose.

In line with previous decisions of this Court and our Supreme Court, we conclude further that the ubiquitous nature of language throughout our case law to the effect that a charge on involuntary manslaughter shall be given only where the trial evidence “reasonably would support such a verdict, means just that: a verdict. Williams, 537 Pa. at 30, 640 A.2d at 1266; Commonwealth v. Smith, 511 Pa. 343, 356, 513 A.2d 1371, 1377-78 (1986), cert. denied, 480 U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987); Commonwealth v. Walker, 491 Pa. 351, 353, 421 A.2d 172, 173 (1980); Commonwealth v. Williams, 490 Pa. 187, 190, 415 A.2d 403, 404 (1980); White, 490 Pa. at 185, 415 A.2d at 402; Rogers, 419 Pa.Super. at 135, 615 A.2d at 61; Commonwealth v. Reed, 400 Pa.Super. 207, 231, 583 A.2d 459, 471 (1990), appeal denied, 528 Pa. 629, 598 A.2d 282 (1991). It does not require lengthy discussion to reach the conclusion that foreclosing the possibility of returning a verdict on a criminal offense upon which instructions have been issued contributes to the verdict that is returned on the remaining charges. Rush, 529 Pa. at 503, 605 A.2d at 794; Commonwealth v. Turner, 499 Pa. 579, 584, 454 A.2d 537, 540 (1982). We hold that where sufficient evidence is presented at trial to entitle a defendant to an instruction on a criminal offense, and, upon timely request, the jury is so instructed, the failure to afford the jury an opportunity to return a verdict on the charge is not harmless error beyond a reasonable doubt. Rush, 529 Pa. at 503, 605 A.2d at 794.

Having reached this conclusion, we need not address appellant’s claim of error regarding the trial court’s failure to declare a mistrial. Instead, we vacate the judgment of sentence and remand for a new trial.

Judgment of sentence vacated. Case remanded for a new trial. Jurisdiction relinquished.

      . Despite differing interpretations of precisely what quantum of evidence is necessary to ‘‘support a verdict," and the source from which it should derive, we are required to view the evidence in the light most favorable to the defendant. Commonwealth v. Morris, 492 Pa. 565, 424 A.2d 1336 (1981); Commonwealth v. Terrell, 482 Pa. 303, 393 A.2d 1117 (1978); Commonwealth v. Bybel, 399 Pa.Super. 149, 581 A.2d 1380, vacated on other grounds (and appellant discharged), 531 Pa. 68, 611 A.2d 188 (1992). Compare Commonwealth v. Williams, 490 Pa. 187, 190, 415 A.2d 403, 404 (1980) and Commonwealth v. White, 490 Pa. 179, 185, 415 A.2d 399, 402 (1980) (evidence necessary to support an instruction is “trial evidence [that] reasonably would support such a verdict”) with Commonwealth v. Draxinger, 345 Pa.Super. 554, 558, 498 A.2d 963, 965 (1985) (evidence necessary is "any version of the evidence in a homicide trial, from whatever source, [that] supports a verdict of involuntary manslaughter”) and Commonwealth v. Rogers, 419 Pa.Super. 122, 135, 615 A.2d 55, 61 (1992) (language of Draxinger must be read in light of Supreme Court’s mandate in White and Williams; evidentiary burden includes “all of the evidence from whatever source [that] reasonably [would] support a verdict of involuntary manslaughter”).

      . This side-bar discussion followed:
      MR. LYNCH [for the Commonwealth]: Your Honor, if it is the position of the Defense to get a charge on Involuntary Manslaughter, then I would reverse my previous statement and leave Involuntary Manslaughter in.
      THE COURT: All right.
      MR. LYNCH: It’s like getting a free bite of the apple.
      THE COURT: The Defendant would be entitled to that charge, in fact, if it’s in the case.
      MR. LYNCH: Yes, sir.
      THE COURT: I obviously can't make a ruling on it. However, what I will do, I will permit the charge of Involuntary Manslaughter to remain in the case, permit the Commonwealth to withdraw their withdrawal of that charge.

        MR. LYNCH: Yes, sir.
      THE COURT: So that, gentlemen, presently in this case, there are Murder One, Murder Three, Voluntary, Involuntary, and Recklessly Endangering.
      MR. LYNCLI: Yes, sir. And I might just state for the record, sir, that in all likelihood it's very probable that I will, at the end of the Defense's case probably still withdraw the Involuntary Manslaughter. I just want to mull it over. I don’t want to give him anything for nothing, sir.
      N.T., 9/16/93, at 30-32.

      3. Appellant claimed self-defense at trial, and the jury was so instructed.

      . Compare Terrell, supra (where defendant testified he was afraid of victim, had no intention of killing him, and conflicting versions of what occurred were presented, resolution of conflict is for the jury and defendant entitled to involuntary manslaughter instruction), and Bybel, supra (new trial awarded for defendant charged and tried on third-degree murder and involuntary manslaughter, where prosecution did not withdraw involuntary manslaughter charge until after the close of evidence, and evidence that defendant intended to shoot at motorcyclist as warning, and shot went astray, would have supported verdict of involuntary manslaughter), with Commonwealth v. Rogers, 419 Pa.Super. 122, 615 A.2d 55 (1992) (where all evidence, except defendant’s testimony, demonstrates that he fired entire magazine of weapon into occupied vehicle, killing victim, testimony does not support involuntary manslaughter verdict) and Commonwealth v. Long, 397 Pa.Super. 140, 579 A.2d 970 (1990), appeal denied, 527 Pa. 615, 590 A.2d 756 (1991) (defendant not entitled to instruction on involuntary manslaughter where he admits shooting victim in back as he fled; no issue of reckless or gross negligence raised) and Commonwealth v. Reed, 400 Pa.Super. 207, 583 A.2d 459 (1990), appeal denied, 528 Pa. 629, 598 A.2d 282 (1991) (defendant not entitled to have jury instructed on law of involuntary manslaughter where victim shot in the face five times at point blank range).

      . Analogously, this Court determined that a claim of accidental shooting and self-defense are not necessarily inconsistent when "the circumstances of the case allow that the accidental injury or death occurred within the course of the actor defending himself.” Commonwealth v. Wilson, 433 Pa.Super. 28, 639 A.2d 1194 (1994); Commonwealth v. McFadden, 402 Pa.Super. 517, 522, 587 A.2d 740, 742 (1991), quoting Commonwealth v. Mayfield, 401 Pa.Super. 560, 572, 585 A.2d 1069, 1074 (1991) (en banc).

      . The trial court argues that since "no party” objected to the exclusion of involuntary manslaughter from the verdict slip Opinion, at 12, the issue was not preserved for appellate review. See Commonwealth v. Owens, 437 Pa.Super. 64, 78 n. 8, 649 A.2d 129, 136 n. 8 (1994) (citing Painter v. Penna. Elec. Co., 368 Pa.Super. 334, 336, 534 A.2d 110, 111 (1987), appeal denied, 520 Pa. 576, 549 A.2d 136 (1988)). The trial court apparently relies upon the following exchange in taking the position that an objection to the omission of the charge from the verdict slip, to be timely, must have been made immediately upon the conclusion of the instruction and before the jury retired to deliberate, or be waived:
      THE COURT: The Commonwealth has withdrawn the charge [oí] Involuntary Manslaughter, is that correct?
      MR. LYNCH: That's correct, Your Honor.
      THE COURT: Now I will charge the jury to the effect if they find that the facts of this case give rise to a gross or — grossly negligent or reckless conduct, that they will not be able to find the Defendant guilty of any Homicide charge.
      MR. DIMATTEO: I’m sorry, sir, I wasn’t listening, could you repeat that?
      THE COURT: All right. When I — you’ve asked for a charge and I’ve agreed to charge on Involuntary Manslaughter. The charge when describing the elements of Involuntary Manslaughter will be to the effect that if they find the facts of this case arise to grossly negligent or reckless conduct on the part of the Defendant, that they will not — ■ they will acquit the Defendant of any Homicide charge.
      MR. DIMATTEO: Yes.
      THE COURT: Okay, is that correct, Mr. Lynch?
      MR. LYNCH: Yes.
      N.T., 9/17/93, at 25-26. The record establishes, however, that defense counsel did object to the exclusion of the charge from the verdict slip. Id. at 105-07.
      Contrary to the trial court's conclusion, the verdict of a jury is never final until recorded, Commonwealth v. Williams, 279 Pa.Super. 28, 31-32, 420 A.2d 727, 729 (1980), and a trial court may always exercise its discretion to correct an error of substance in a verdict by sending the jury back with additional instructions to deliberate further. Commonwealth v. Dzvonick, 450 Pa. 98, 102-103 n. 4, 297 A.2d 912, 914 n. 4 (1972). We find that the objection, having been made before the jury reached a verdict, was timely.

      . This is not a case where, as a matter of trial strategy, defense counsel declined an instruction to which the evidence entitled the defendant. See, e.g., Commonwealth v. Morris, 492 Pa. 565, 424 A.2d 1336 (1981) (as a matter of trial strategy, counsel cannot be ineffective for declining to request involuntary manslaughter instruction, which would have foreclosed possibility of outright acquittal on greater homicide charges); Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378 (1979) (option of outright acquittal would have been eliminated by possibility of returning a verdict of involuntary manslaughter; counsel not ineffective for declining the charge); Commonwealth v. McGrogan, 449 Pa. 584, 297 A.2d 456 (1972) (counsel not ineffective for declining voluntary manslaughter charge/claim of sell-defense in attempt to gain outright acquittal). In fact, those cases which have dealt with this issue presume that declining an instruction forecloses the possibility of a verdict on the omitted charge; therein lies the tactical strategy. We see no reason for the inverse not to be controlling: where an instruction is warranted, the right to have a verdict returned thereon should be beyond question.