author:
FORD ELLIOTT, Judge:
      BROSKY, Judge, CIRILLO, Judge,

text:
    614 A.2d 261
    Dulcina C. SMITH, Appellant, v. KING’S GRANT CONDOMINIUM, a Condominium, v. Mary Scott LLOYD, Edward Carey and Alice Carey, James F. Malloy and Lawrence W. Spencer.
    Superior Court of Pennsylvania.
    Argued Oct. 23, 1991.
    Filed Sept. 2, 1992.

      Henry E. Rea, Jr., Pittsburgh, for appellant.
    Jay D. Glasser, Pittsburgh, for King’s Grant, appellee.
    Before CIRILLO, FORD ELLIOTT and BROSKY, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from a judgment pursuant to an Order denying appellant’s Motion for Post-Trial Relief. Appellant had, inter alia, challenged the entry of compulsory non-suit against her. Appellant argues before this court that the court below erred in granting appellees’ motion for compulsory non-suit. Appellant believes sufficient evidence establishing her cause of action was presented at trial to merit presentation of the case to the jury. For the reasons which follow, we find that compulsory non-suit was properly entered and will, therefore, affirm the judgment of the trial court.

The following facts were adduced at trial. Appellant was the owner of a unit condominium in the condominium plan of the appellee, King’s Grant Condominium. The other named appellees were other unit owners whose units were located in appellant’s particular building of the King’s Grant Condominium Plan. These other appellees were joined as additional defendants below upon the motion of Kang’s Grant Condominium. The plan contained approximately eleven buildings, some of which were comprised of ten units, some twenty units, and some thirty units. Appellant’s unit was located on the lowest level of her building (unit K). The units of the plan were each serviced by two separate sewer lines; one line ran from kitchen fixtures and one line ran from the bathroom fixtures. Lines from the individual units joined common vertical lines in the building, one vertical line for the kitchens and one vertical line for the bathrooms. These separate vertical lines joined a common main line located under the building and the main line carried waste out into the main public sewer.

On December 24, 1987, appellant left her unit to spend approximately four days out of town for the Christmas holiday. Upon her return, appellant discovered that sewage had backed up through the outlets (floor drain, bathtub, toilet, bathroom sink) of the bathroom sewage line. Appellant’s unit was flooded with raw sewage, causing extensive damage both to the unit and to appellant’s personal property, and necessitating appellant’s removal from the unit for an extended time.

Prior to December 24, 1987, in the years from 1976 to 1987, appellant had experienced over twenty sewage back-ups in her kitchen sewage line and had complained on various occasions to the condominium association. Although appellant’s bathroom sewage line had never backed up before the December 1987 incident, the bathroom lines in the lowest level units of other buddings had apparently experienced bathroom line back-ups on other occasions. While the severity of the bathroom back-ups is not of record, the problem was sufficiently chronic that the condominium association printed the following warning in its monthly newsletter for a period of at least a year:

SEWER BACK-UPS
No sanitary napkins, tampons or disposable diapers are to be disposed of in the toilets. This causes restrictions in the main drain lines which then back sewer water up into the lower apartment units. Please dispose of these items properly. How would you like to get up in the morning or come home at night to this kind of mess? The people on the lower floors have experienced this and your cooperation is requested.

King’s Grant Condominium Newsletter — January 1, 1986 at 5. There was testimony that the buildings of the condominium were constructed in a “cookie cutter” fashion, although the same individual also testified that the sewer lines of the different buildings were not identical. No expert testimony was introduced that the sewer lines of different buildings were substantially similar. Regular maintenance procedures followed by the condominium association included snaking the main drains of all buildings monthly. This maintenance improved flow through the lines but did not prevent clogging. At trial, appellant introduced no evidence that the sewer line back-ups could have been alleviated by any steps or measures undertaken by appellee.

We begin our analysis by reiterating our standard of review in cases of compulsory non-suit:

It has been long settled that a compulsory nonsuit can only be granted in cases where it is clear that a cause of action has not been established. The plaintiff must be given the benefit of all favorable evidence along with all reasonable inferences of fact arising from that evidence. Any conflict in the evidence must be resolved in favor of the plaintiff.

Coatesville Contractors v. Borough of Ridley, 509 Pa. 553, 559, 506 A.2d 862, 865 (1986).

An examination of the instant facts viewed in the light of that standard, leads us to the conclusion that the appellant, in the presentation of her case below, failed to produce sufficient evidence on her chosen theories of recovery to avoid non-suit and to allow the jury to decide the issues. The major stumbling block for the trial court and the parties below seems to have been the articulation of precisely which theory of tort or negligence was being presented. Knowing the theory is vital, because this will determine what is required to establish a prima facie case. To avoid non-suit the appellant must establish her cause of action, i.e., she must present evidence of each element of a prima facie case. The court and the parties below searched the Restatement (Second) of Torts in vain for the appropriate theory of tort to apply to the facts of this case. Their assay of tort law was quixotic because the theory of tort they were seeking exists more or less in an inchoate form.

The law of condominium is a relatively new area and is expanding rapidly. Unfortunately, the law of tort has yet to catch up with developments in this area. In his authoritative text on condominium law, one commentator opined as to the state of flux in the law of the tort liability of condominium associations:

This final category of substantive law relates not so much to association operation, but rather to the association’s relationship to others, both its members and third parties. This is, moreover, one of the areas of greatest activity in the past five years and appears destined for more years of development and uncertainty.

Hyatt, Wayne S., Condominium, and Homeowner Association Practice: Community and Association Practice, 1988, American Law Institute, p. 343.

The problem instantly is that the nature of a condominium has not been contemplated precisely by the Restatement (Second) of Torts. At its heart, our problem arises from the innate duality of a condominium’s nature; in some ways the condominium relationship is akin to that of adjacent owners, in others, it is like that of lessor and lessee. Indeed, one of the positions advocated by appellant and ultimately rejected by the court below was the applicability of § 364(c) of the Restatement (Second) of Torts.

§ 364. Creation or Maintenance of Dangerous Artificial Conditions
A possessor of land is subject to liability to others outside of the land for physical harm caused by a structure or other artificial condition on the land, which the possessor realizes or should realize will involve an unreasonable risk of such harm, if
(c) the condition is created by a third person without the possessor’s consent or acquiescence, but reasonable care is not taken to make the condition safe after the possessor knows or should know of it.

§ 364(c) Restatement (Second) of Torts. Our Commonwealth has recognized liability under this theory for some time. See Boyle v. Pennsylvania R. Co., 346 Pa. 602, 31 A.2d 89 (1943), for example. Although the fit of this section to the facts sub judice is imperfect, the trial court seemed to find it wholly inappropriate stating that appellant is not in the position of an adjacent owner of land, because she also jointly owns the land where the complained of dangerous or artificial condition arose. The trial court requested case citations involving condominiums and the application of § 364(c), but appellant could find none. This comes as no surprise when one considers the recent development of condominium law. However, we believe that if we conform § 364(c) of the Restatement to the peculiar nature of the condominium relationship, we find a theory of tort available to appellant under which recovery could have been had.

Initially, while ownership may be a factor under § 364(c), liability is premised on possession and control — not ownership. To conform § 364(c) of the Restatement (Second) of Torts to the reality of the condominium relationship, it is necessary to view the condominium association, and its possession of the common elements of the condominium, as an entity separate and apart from the appellant and her possession of the individual unit, with each possessing definable, adjacent land interests. In fact, the statutory scheme in Pennsylvania directs that the individual unit owner be treated as a separate entity in tort:

§ 3311. Tort and contract liability
(a) General rule.— ...
(2) Except as otherwise provided by paragraph (1):
(i) An action in tort alleging a wrong done by the association or by an agent or employee of the association, or an action arising from a contract made by or on behalf of the association, shall be brought against the association.
(ii) A unit owner shall not be subject to suit or, except as otherwise provided by subsection Ob), be otherwise directly or indirectly held accountable for the acts of the association or its agents or employees on behalf of the association____
(4) A unit owner is not precluded from bringing an action contemplated by this subsection because he is a unit owner or a member or officer of the association.

68 Pa.C.S.A. § 3311(a)(2) and (a)(4). The fact that appellant has a minor and purely “technical” interest in the land of the condominium association as well as an interest in the offending common elements should not preclude the potential liability of the condominium association. Possession and actual control of the dangerous artificial condition coupled with the failure to take reasonable steps to protect others from that danger will impose liability under § 364(c). Commentators have confirmed our logic:

Largely for historical reasons, the rights and liabilities arising out of the condition of land, and activities conducted upon it, have been concerned chiefly with the possession of land, and this has continued into the present day. This development has occurred for the obvious reason that the person in possession of property ordinarily is in the best position to discover and control its dangers, and often is responsible for creating them in the first place.

Keeton, W. Page, Prosser and Keeton on the Law of Torts, 1984 West Publishing Co., page 386 (emphasis added).

Obviously appellant does exercise some remote, extenuated control over the general affairs of the condominium association when she elects members to its governing board. Equally obvious, however, is appellant’s total inability to influence the association to change its stance with regard to the sewer backup problem. It is also clear that appellant could in no way have repaired or maintained personally any defective common elements. It was, instead, the condominium association which had exclusive possession and control over the common elements. Nevertheless, we are unable to grant appellant the relief requested, because appellant adduced insufficient evidence of tortious conduct under § 364(c) to merit presentation of the case to the jury.

Viewing the evidence presented below in the light most favorable to appellant, she has established that the sewer lines are in the possession or control of the condominium association. Evidence was presented from which it could be inferred that third parties created a risk of harm without the possessor’s consent. With the newsletter warning, she has presented evidence that the possessor was aware of problems in the sewer lines. Although no independent expert testified that the sewer lines in the various buildings were similar enough to put the association on notice as to a back-up problem in each individual building, we believe that a reasonable inference from the association’s blanket newsletter warning is that the sewer lines were sufficiently similar and that, therefore, the association was on notice as to each individual building. Evidence was presented of the actual occurrence of the the foreseeable harm. However, what is fatal to appellant’s case was the failure to demonstrate at trial that appellee association failed to exercise reasonable care to correct the condition once they had notice of its existence.

There was no evidence presented at trial as to what appellee association could or should have done to prevent the injury which harmed appellant. Appellant did not show that her injury was caused by a defectively designed or maintained plumbing system coupled with appellee condominium association’s failure to take available remedial action. For instance, appellant alleged in her complaint that appellee could have installed a back-flow valve to prevent sewage from entering appellant’s condominium. If only appellant had put in evidence to this effect at trial from which the efficacy of this solution could be shown, we might today be finding in her favor. The production of such evidence is critical to appellant’s case because, under § 364(c), while a failure to remedy yields an actionable cause, an inability to remedy does not. Appellant failed to show that there was anything appellee condominium association could have done to deflect the harm which was thrust upon her.

We note that on occasion, the availability of remedial or corrective action to establish reasonable care may be obvious. Such has been the case where an accumulation of snow and ice falls from a roof and damages an automobile on adjoining property, Menzel v. Lamproplos, 168 Pa.Super. 329, 77 A.2d 645 (1951), or where strip mining activity causes such instability that earthslides occur and damage a lower adjoining landowner, McArthur v. Balas, 402 Pa. 116, 166 A.2d 640 (1961). However, such is not the case where one is dealing with the plumbing system of a large condominium complex. Thus, while appellant has evinced the duty owed to her by appellee, she has neglected to establish how that duty was breached. Therefore, her case cannot proceed to the jury.

At one point in her argument below, appellant seemed to be arguing that appellee’s duty to her was absolute and that she need only to have shown appellee’s maintenance of an artificial condition and that her harm resulted from it. This is an argument that appellee is liable without fault and it is an incorrect view of the law of this Commonwealth. Appellant has cited various cases, but none of them hold that under similar circumstances, a plaintiff was relieved from a showing of fault, be it intentional act or negligence, in order to establish liability. It is vital to any action brought under § 364(c), that a defendant be shown to have breached a duty of reasonable care. See McArthur v. Balas, supra, McCarthy v. Ference, 358 Pa. 485, 58 A.2d 49 (1948), and Fitzpatrick v. Penfield, 267 Pa. 564, 109 A. 653 (1920). See Wagner v. Grannis, 287 F.Supp. 18 (W.D.Pa.1968) and Ohio Casualty Insurance Company v. Bank Building & Equipment Corporation, 300 F.Supp. 632 (1968), applying Pennsylvania law. See also Doerr v. Rand’s, 340 Pa. 183, 16 A.2d 377 (1940).

This is not to say that strict liability may never apply under circumstances similar to these. Indeed, where the artificial condition giving rise to the resulting harm is of an ultra-hazardous nature, liability will be found regardless of negligence on the part of the person who possesses the land where the ultra-hazardous artificial condition exists. See Restatement, Second, Torts §§ 519 and 520. The rule in Rylands v. Fletcher, L.R. 3 H.L. 330 (1868), has been adopted in Pennsylvania via the adoption of these sections of the Restatement. See Albig v. Municipal Authority of Westmoreland County, 348 Pa.Super. 505, 502 A.2d 658 (1985). However, we cannot say that the maintenance of sanitary sewage lines constitutes an ultrahazardous activity. Therefore, appellant is not excused from a showing of negligence in order to impose liability upon appellee.

As appellant failed to present a prima facie case of negligence under § 364(c) of the Restatement, Second, Torts, the trial court properly prevented the case from proceeding to the jury and granted the motion for the compulsory non-suit. While we believe that the interests of justice require us to conform appellant’s negligence action to the condominium milieu, those same interests demand that appellant not be forgiven a showing of the required elements of an action in negligence. Instantly, appellant has failed to demonstrate the breach of duty required for liability under § 364(c).

Additionally, we affirm the trial court’s resolution of appellant’s claim that the negligence in this case is subject to the doctrine of res ipsa loquitur. Essentially, the trial court noted that in order to maintain a negligence action under the theory of res ipsa loquitur, a plaintiff must eliminate other potential causes of the harm suffered. The trial court went on to point out that appellant failed to eliminate herself as a possible cause of the blockage and sewer back-up, nor did she eliminate other unit owners in her building as possible causes. We reject appellant’s res ipsa loquitur argument on the basis of the trial court’s opinion.

Lastly, we must consider the doctrine of absolute nuisance which has been propounded by the dissent as providing a valid cause of action for appellant that was sufficiently proven at trial so as to avoid compulsory non-suit. Under such doctrine a plaintiff need only show that sewage from defendant’s land has travelled onto plaintiffs land and that plaintiff has been injured thereby. Negligence need not be shown, liability being absolute. While we agree with the dissent that this doctrine would appear to provide appellant with a valid cause of action, we cannot ground a reversal of the trial court upon a cause of action which was not pleaded below. While we feel that it is proper for us to alter slightly appellant’s § 364(c) negligence argument so that it comports to the law of condominium, we feel that it is not proper for us to permit appellant relief on appeal based upon a wholly different cause of action.

Furthermore, for us to adopt an absolute nuisance theory in order to grant appellant relief, seems to us tantamount to raising the issue sua sponte. For us to consider an issue sua sponte is to exceed the scope of our appellate review. We have been specifically admonished by our supreme court to not partake in such endeavors. See Estep v. Estep, 508 Pa. 623, 500 A.2d 418 (1985), and Wiegand v. Wiegand, 461 Pa. 482, 337 A.2d 256 (1975).

Accordingly, we affirm the judgment of the trial court. Jurisdiction relinquished.

BROSKY, J., files a concurring statement.

CIRILLO, J., files a dissenting opinion.

BROSKY, Judge,

concurring.

I am in agreement with the majority’s finding that appellant failed to present a 'prima facie case of negligence under § 364 of the Restatement, Second, of Torts, and, failed to meet her burden of proof required regarding the doctrine of res ipsa loquitur. Hence, I am constrained to agree that the trial court properly prevented the case from proceeding to the jury and granted appellees’ motion for a compulsory nonsuit.

I wish to note that I empathize with the plight of appellant, who clearly suffered inconvenience and damage as a result of the backing-up of the sewer system into her bathroom. It is truly unfortunate that in the instant case she will not be compensated for all of her damages. Yet, as the majority has so clearly set forth, appellant and similarly situated condominium unit owners possess remedies for instances when damages are occasioned upon them by the intentional or negligent acts of the condominium association or the agents or employees of the association. § 364 Restatement (Second) of Torts; 68 Pa.C.S. § 3311(a)(2), (4).

It is interesting to note that in Arnold v. New City Condominiums Corp., 78 A.D.2d 882, 433 N.Y.S.2d 196 (1980), New York permitted a condominium unit owner to institute a negligence action against the developer of the condominium building (alleged defects in the drainage system resulted in the flooding of the basements of individual condominium units; the defect was in the common elements of the condominium). In Arnold the developer filed a motion for summary judgment against the unit owner and the trial court denied the motion. The Appellate Division of the Supreme Court of New York then affirmed the trial court’s order and the case proceeded to trial.

In Schoninger v. Yardarm Beach Homeowners’ Association, Inc., 134 A.D.2d 1, 523 N.Y.S.2d 523 (1987), a condominium unit owner initiated an action against the condominium board of managers and the condominium association, seeking injunctive relief compelling the defendants to, inter alia, make such repairs as were necessary to the common elements of the condominium buildings. The plaintiff alleged that various common elements of the properties had been improperly designed and constructed and were being improperly maintained. Although the Appellate Division of the Supreme Court of New York found that the trial court erred in failing to grant the defendants’ motion for summary judgment, the condominium unit owner submitted the affidavit of an architect retained by her as an expert and the expert expounded upon specific defects in the common elements of the properties. This type of evidence is clearly more beneficial to a plaintiffs case than general allegations unsupported by expert evidence.

The majority notes that appellant would have been in a better position if she had analogized her relationship to the condominium association as that of landlord-tenant relationship. In McGowan v. Devonshire Hall Apartments, 278 Pa.Super. 229, 420 A.2d 514 (1980), a tenant sued her landlord, upon the theory of res ipsa loquitur, for injuries sustained as a result of a malfunction in the operation of an elevator located on one of the common elements of the apartment building. The landlord joined the elevator service company. The verdict was against the landlord and our Court affirmed. In McGowan the plaintiff testified as to the details of the accident. There was also detailed testimony from inspectors from the service company, who provided information regarding the operation of and repairs to the elevator. There was also testimony from an elevator inspector who was an employee of a subsidiary of the liability carrier of the landlord. He testified regarding the impossibility of the occurrence of the accident as described by the plaintiff. All of the aforementioned testimony was certainly relevant in proving or disproving a plaintiffs allegations in a landlord-tenant case, or by analogy, a condominium unit owner-condominium association case.

CIRILLO, Judge,

dissenting.

I respectfully dissent. I am unable to join the majority or concurring opinion because I do not believe Dulcina Smith should be forced to bear the losses caused by the malfunctioning of a sewer system over which she had no control. Our duty as a court of law is to do justice; justice in this case requires that a jury be permitted to determine whether the condominium association, which has exclusive control over all the common sewer lines of the condominium complex, should be held liable for the damage sustained in Smith’s individual unit. I would reverse the trial court’s entry of compulsory non-suit and remand the case for trial.

The majority, while sympathetic to Smith’s plight, nevertheless concludes that Smith “failed to produce sufficient evidence on any theory of tort to avoid non-suit____” According to the majority, “[t]he major stumbling block for the trial court and the parties below seems to have been the articulation of precisely which theory of tort or negligence was being presented. Knowing the theory is vital, because that will determine what is required to establish a prima facie case.” The majority then proceeds to analyze various theories of tort recovery in light of the facts of record before dismissing the theories as either improperly argued, insufficiently raised or not raised at all by Smith. Consequently, Smith is left without an avenue of redress.

The trial court determined that Smith’s primary theory of liability, section 364 of the Restatement (Second) of Torts, “Creation or Maintenance of Dangerous Artificial Conditions,” was “plainly inapplicable” because section 364 applies only to situations involving two separate owners of two separate parcels of real property. As a condominium owner, Smith was part owner of the common areas, sewers included; she was also a member of the condominium association she was suing. Therefore, according to the trial court, Smith was not an adjacent landowner but one of several common owners, and as such, she could not claim an adjacent landowner’s right to be free of physical harm emanating from an artificial condition created by the possessor of the neighboring land.

As my colleagues on the panel indicate, the trial court misapprehended the law. Liability under section 364 is premised primarily on possession and control, and not merely on ownership. Moreover, section 3311 of the Commonwealth’s Uniform Condominium Act specifically provides that a unit owner is not precluded from bringing an action against the condominium association merely because he is a member or officer of that association. See 68 Pa.C.S. § 3311(a)(2); (a)(4). Therefore, the condominium association, as the “possessor” of the common sewer lines, is liable to others such as Smith for physical harm caused by the sewer lines which the association realizes or should realize involve an unreasonable risk of harm when reasonable care is not taken to make the condition safe after the association knows about it. § 364 Restatement (Second) of Torts.

In its opinion, the majority concludes that Smith is precluded from recovery under section 364 because “[tjhere was no evidence presented at trial as to what appellee association could or should have done to prevent the injury ... [Smith] did not show that her injury was caused by a defectively designed or maintained plumbing system coupled with appellee condominium association’s failure to take available remedial action.” (emphasis in original). The majority also concludes that since the maintenance of sewage lines cannot be deemed to constitute an ultra-hazardous activity, Smith could not circumvent her omission by utilizing strict liability in tort imposed upon possessors of land with ultra-hazardous artificial conditions. Thus, while condominium unit owners generally can seek relief through section 364, according to the majority, Smith is ineligible to do so because she failed to advise the condominium association on how to fulfill part of the duties it was specifically created to perform.

I disagree with this analysis. Individuals purchase units in condominium complexes for myriad reasons, among them the desire to be relieved of personal responsibility for the care of structural and environmental elements of a dwelling, such as the roof, the electrical, plumbing and sewage systems, and the grounds. In a condominium, these tasks are delegated to- the condominium association, which is generally empowered to “[r]egulate the use, maintenance, repair, replacement and modification of common elements.” 68 Pa.C.S. § 3302(a)(6). The unit owners are assessed a monthly fee for the privilege of delegating their responsibilities to the condominium association. Thus it is inconceivable to me that, in order to be “made whole,” a unit owner damaged by the malfunctioning of a common sewer line must first present evidence to establish precisely what the association should have been doing to ensure that the sewer line functioned properly. Such a requirement defies logic and negates a primary benefit of condominium ownership.

I would hold that Smith has met her burden in establishing a cause of action under section 364, under a theory of nuisance, or utilizing res ipsa loquitur. The Pennsylvania Supreme Court has defined nuisance as “that which annoys and disturbs one in the possession of his property, rendering its ordinary use or occupation physically uncomfortable to him.” Tuckachinsky v. Lehigh & Wilkes-Barre Coal Co., 199 Pa. 515, 518, 49 A. 308 (1901). Under the theory of absolute nuisance a defendant is held strictly liable for the offending activity, relieving the plaintiff of the burden of proving the defendant’s negligence or intent to harm. Prosser and Keaton on Torts, 5th ed., § 78 at 552 (1984). The primary consideration in determining whether a condition constitutes an absolute nuisance is the relation of the objectionable activity to its surroundings. Id. The accumulation of sewage, when it flows onto the property of another, has long been held to be an absolute nuisance. See In Re Haugh’s Appeal, 102 Pa. 42 (1883); Knauss v. Brua, 107 Pa. 85 (1884). See also Schneider v. Sweeney, 66 Pa.D. & C. 437 (1948) (listing cases finding sewage seeping onto the property of another to be a private nuisance per se.)

In Haugh, supra, our supreme court was faced with the problem of one landowner’s privy leaking into the well of the adjoining landowner. In holding for the injured plaintiff, the court stated:

the right to have a privy is a right only so long as it is used without material injury to the property of others: when its fetid contents begin to leak upon the adjoining lands it becomes a nuisance and is actionable as such ... the proposition that one man should, under any circumstances, be permitted to deposit any part of his health-destroying filth in or upon his neighbor’s premises, is simply absurd.

Haugh, 102 Pa. at 44-45. (emphasis added).

In Knauss, supra, the plaintiff and defendant owned adjoining lots and dwellings. The sewer connection to defendant’s privy periodically became obstructed, causing “filthy water” to seep into the plaintiffs cellar. Knauss, 107 Pa. at 86. The defendant denied responsibility on the grounds that his house was leased to a tenant. At trial, in a special verdict, the jury had determined that there was a defect in the construction of the sewer that rendered it inefficient for the purpose for which it was intended. Id. at 90. Our supreme court still found the defendant liable because the privy had been malfunctioning before the tenant took possession. “But for a defect of this kind, which required not repair but reconstruction, even as between tenant and landlord, the former cannot be held; therefore, on all authority, the damages resulting from this default must fall on the latter.” Id.

Unit owners in a condominium are adjacent property owners. The state legislature has granted them the right to sue other unit owners or the condominium association as individual property owners. Rather than each unit having its own sewer line, in a condominium several unit owners share one sewer line. The condominium association is the entity responsible for maintaining the common sewage system. It is also the entity charged with responsibility for determining whether and when common elements need repair, reconstruction, or replacement. Moreover, the condominium association is vested with authority to levy assessments against the unit owners in order to pay for the requisite maintenance or improvement of the common elements. See 68 Pa.C.S. § 3302(a). Despite this new type of property ownership unknown in Pennsylvania a century ago, I would find our supreme court’s resolution of the issues in Haugh and Knauss controlling here.

Although the majority now agrees Smith has a valid cause of action in absolute nuisance, it nonetheless states: “While we feel that it is proper for us to alter slightly appellant’s § 364(c) negligence argument so that it comports to the law of condominium, we feel that it is not proper for us to permit appellant relief on appeal based upon a wholly different cause of action.” To the majority, to provide such relief would be “tantamount to raising the issue sua sponte,” in violation of the supreme court’s admonitions in Wiegand, infra, and Estep, infra. I find the majority’s conclusion unsupported in the record and the cases cited inapposite.

In Wiegand v. Wiegand, 226 Pa.Super. 278, 310 A.2d 426 (1972), this court declared two sections of the Divorce Code unconstitutional because they were contrary to the equal rights amendment of the Pennsylvania constitution. On allocatur, our supreme court reversed, stating that “the constitutionality of these provisions was never questioned by the parties either in the trial court or in their briefs in the Superior Court.” Wiegand v. Wiegand, 461 Pa. 482, 484, 337 A.2d 256, 257 (1975). The justices also noted that sua sponte determinations negate the inviolate rule that issues presented on appeal must have been properly preserved for appellate review. Id., 461 Pa. at 485, 337 A.2d at 257. Similarly, in Estep v. Estep, 508 Pa. 623, 500 A.2d 418 (1985), another divorce action, the supreme court, quoting heavily from Wiegand, supra, reversed because this court “improperly interjected a legal theory not otherwise considered or preserved.” Id. at 628, 500 A.2d at 420.

Here, unlike Wiegand and Estep, we would not be unfairly interjecting a legal theory not otherwise considered or preserved. Estep, supra. According to the majority: “The court and the parties below searched the Restatement (Second) of Torts in vain for the appropriate theory of tort to apply to the facts of this case. Their assay of tort law was quixotic because the theory of tort they were seeking exists more or less in an inchoate form.” Clearly, all parties were on notice that any applicable theory of tort would be considered; consequently, unfair surprise is not an issue. As the majority notes in footnote five, Smith stated at trial that her theory of the case was that the condominium association owed her an absolute duty not to put sewage on her property. Moreover, the record reveals that Smith preserved the issue for appellate review by raising it in her post-trial motion. Thus, under the peculiar circumstances of this case, granting Smith relief on the basis of absolute nuisance would not be tantamount to raising the issue sua sponte; it would merely be the “just, speedy and inexpensive determination” of her cause of action. See Pa.R.C.P. 126.

In the alternative, I would hold that Smith has established a valid cause of action in negligence utilizing the doctrine of res ipsa loquitur. The majority affirmed the trial court’s denial of Smith’s res ipsa loquitur claim, stating: “[essentially the trial court noted that ... a plaintiff must eliminate other potential causes of harm suffered ... appellant failed to eliminate herself as a possible cause of the blockage and sewer back-up, nor did she eliminate other unit owners in her building as possible causes.” I find that the trial court’s analysis to be contrary to the case law of the Commonwealth.

Res ipsa loquitur, as delineated in section 328D of the Restatement (Second) of Torts, was adopted as the law of the Commonwealth in Gilbert v. Korvette, Inc., 457 Pa. 602, 327 A.2d 94 (1974). According to our supreme court, res ipsa loquitur “is neither a rule of procedure nor one of substantive tort law. It is only a shorthand expression for circumstantial proof of negligence — a rule of evidence.” Id., 457 Pa. at 611, 327 A.2d at 99. Section 328D explains res ipsa loquitur as follows:

(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when
(a) the event is of a kind which ordinarily does not occur in the absence of negligence;
(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
(c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.
(2) It is the function of the court to determine whether the inference may reasonably be drawn by the jury, or whether it must necessarily be drawn.
(3) It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached.

Restatement (Second) of Torts, § 328D.

Under the Restatement rule, a plaintiff need not establish exclusive control; a defendant’s negligence may be inferred when “other responsible causes are sufficiently eliminated by the evidence.” Gilbert, 457 Pa. at 614, 327 A.2d at 101, citing Restatement (Second) of Torts, § 328D(l)(b) (1965). “Exclusive control may eliminate other causes, but the critical inquiry is not control but whether a particular defendant is the responsible cause of the injury.” Id. (emphasis in original).

Here, a common sewer line overflowed into Smith’s apartment, causing her great inconvenience and expense. Common sewer lines do not back-up and overflow into individual apartments with the documented frequency Smith experienced absent negligence, negligence either in failing to maintain the sewer lines properly or in failing to sue the developer for installing a defectively designed or constructed sewage removal system. The majority recognizes the condominium association was in exclusive possession and control of all the sewer lines in the condominium complex. Smith was on vacation at the time of the overflow in question. However, while it is true other unit owners were in residence, the sheer number and repetitive nature of the stoppages experienced in all the buildings of the condominium complex indicates that the backups were not simply the result of carelessness on the part of individual residents.

“On the criteria relating to other reasonable causes, a plaintiff is not required to exclude all other possible causes beyond a reasonable doubt, but it is enough if he makes out a case from which a jury may reasonably conclude that negligence was, more probably than not, that of the defendant. ” Schoenenberger v. Hayman, 77 Pa.Cmwlth. 411, 417, 465 A.2d 1335, 1338 (1983) (citations omitted) (emphasis added). Whether the condominium association was the “responsible cause of the injury” is a question of fact for the jury. Gilbert, 457 Pa. at 614, 327 A.2d at 102. I would hold that Smith presented sufficient evidence to establish a cause of action in negligence using res ipsa loquitur, thereby warranting presentation of her case to the jury.

As the majority notes, an appellate court, in determining whether the trial court properly concluded that the plaintiff failed to establish a cause of action, must view the evidence in the light most favorable to the plaintiff, giving the plaintiff the benefit of all reasonable inferences of fact arising from the evidence and resolving any conflict in the evidence in favor of the plaintiff. Coatesville Contractors v. Borough of Ridley, 509 Pa. 553, 559, 506 A.2d 862, 865 (1986). A compulsory non-suit will be affirmed on appeal only where it is inconceivable, on any reasonable hypothesis, that a mind desiring solely to reach a just and proper conclusion in accordance with the relevant governing principles of law, after viewing the evidence in the light most favorable to the plaintiff, could determine the controlling issue in plaintiffs favor. Stevens v. Cmwlth. Dept. of Transportation, 89 Pa.Cmwlth. 309, 312-13, 492 A.2d 490, 492 (1985). Such is not the case here.

Viewing the evidence in the light most favorable to Smith and giving her the benefit of all reasonable inferences that may be drawn from that evidence, Coatesville Contractors, supra, I conclude that Smith has indeed established a cause of action, either in negligence under section 364 of the Restatement (Second) of Torts or utilizing res ipsa loquitur, or under a theory of nuisance. I would hold that the trial court committed an error of law in entering an order of compulsory non-suit against Smith. Therefore, I would reverse the trial court order and remand the case for trial on the merits.

      . Like the trial court, we will consider the propriety of the entry of compulsory non-suit based upon all of the evidence presented at trial, including items later stricken from the record (see Opinion at 263). Although significant portions of appellant's evidence were later stricken, at the time compulsory non-suit was entered, those articles of evidence were still in the record and were considered by the court below in its decision to grant compulsory non-suit. Therefore, we must properly consider them as well.

      . This Court would also note the close, albeit imperfect, fit of § 361 of the Restatement (Second) of Torts to the facts at hand:
      § 361. Parts of Land Retained in Lessor's Control but Necessaty to Safe Use of Part Leased
      A possessor of land who leases a part thereof and retains in his own control any other part which is necessary to the safe use of the leased part, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor’s control, if the lessor by the exercise of reasonable care
      (a) could have discovered the condition and the risk involved, and
      (b) could have made the condition safe.

        While we are not dealing with a landlord-tenant relationship here, we believe that appellant would have been in a better position analogizing to this section. Indeed, other courts have recognized this analogy:
      In our view, the condominium owners association — residential condominium owner relationship is analogous to that of the landlord— tenant relationship.... When a condominium owners association ‘performs all the customary business functions which in the traditional landlord — tenant relationship rest on the landlord’s shoulders),]’ such as managing the project, maintaining and repairing the common areas, providing security, and obtaining insurance, ... the courts impose on the association the same duty of care as a landlord. ... The underlying reasoning for the imposition of the duty of the association is that it is the only one in a position to maintain and secure the common areas which are under its exclusive control.

        Moody v. Cowdrey & Associates, 6 Haw.App. 355, 721 P.2d 708, 713 (1986), reversed on other grounds, 68 Haw. 527, 721 P.2d 707 (1986) (citations omitted). Nevertheless, because appellant did not propound this theory below, and because the court below did not consider it, we will not do so now on appeal.

      . We note in passing that the trial court was correct in finding that the King’s Grant Condominium was declared prior to 1980 and was, therefore, subject to the provisions of the Unit Property Act, 68 P.S. § 700.101 et seq. However, 68 Pa.C.S.A. § 3102(a) specifically mandates the application of § 3311 of Title 68 to those condominiums created before the effective date of that act.
      We would also note that 68 Pa.C.S.A. § 3311(a)(4) obviates any need to discuss De Villars v. Hessler, 363 Pa. 498, 70 A.2d 333 (1950), and its progeny, which hold that a member of an unincorporated association may not recover in tort from that association.

      . Complaint, page 2.

      . MR. REA (appellant’s trial counsel): Our theory of the case is they owe us an absolute duty not to put sewage on our property, the same as any neighbor owes that duty to an adjacent neighbor, not to put sewage, smoke, unusual whatever it is, onto somebody else’s property-
      Notes of testimony dated 6/1/90 — 6/4/90, p. 36. Also:

        MR. REA: ... If their pipe overflows into our unit, we have a right to recover for that, and I don’t have to show what they could have done to prevent it.
      Notes of testimony dated 6/1/90 — 6/4/90, p. 39. And:
      MR. REA: ... I’m saying under the terms of the Restatement and every case I have found in Pennsylvania, that when someone invades your property, unless they have a right to do it, they have to respond to me in damages for that invasion. It’s the same as if you have two neighbors and if you have your sewer pipe leading out to your street, your sanitary sewer pipe leading out to your street and that breaks and you flood the next door neighbor, you’re responsible for that. I don't have to go into your pipe to find out why it broke. You owe me the duty not to put sewage onto my property.
      Notes of testimony dated 6/1/90 — 6/4/90, p. 40.

      . This hints at the absolute nuisance theory discussed infra.

      . We have noted that a showing of intent on the part of appellee would also constitute sufficient fault to impose liability, although that theory of recovery is expounded at § 158 of the Restatement, Second, Torts. Of course, the evidence does not suggest that appellee intentionally caused the sewage to flow into appellant’s condominium unit, nor was this argued at trial or alleged in appellant's complaint. Although appellant states this argument in her brief, we will not consider it, for the first time, on appeal.

      . § 328 D. Res Ipsa Loquitur
      (1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when ...
      (b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
      Restatement, Second, Torts § 328 D.

      . Appellant did allude to this theory when she claimed that she was owed an absolute duty by appellee condominium association not to put sewage on her property. See footnote 5 and Notes of testimony dated 6/1/90 — 6/4/90, pp. 36-40. However, as the trial court indicated, this theory was not pleaded in appellant's Complaint. The trial court rightly did not consider an argument raised by plaintiff to which defendants had not received notice by complaint or other pleading.

      . See majority memorandum, at pages 264, 265.

      . Additionally, the condominium association may have standing to represent the individual condominium unit owners in a lawsuit, against the condominium developers, alleging defects in the construction of the condominium. 1000 Grandview Association v. Mt. Washington Association, 290 Pa.Super. 365, 434 A.2d 796 (1981). In 1000 Grandview Association the condominium association brought an action alleging specific and implied breaches of warranty for defects and omissions in the construction of the condominium.


source: Caselaw Access Project

author: POPOVICH, Judge.

license: Public Domain

text:
    614 A.2d 273
    AETNA CASUALTY & SURETY COMPANY, Appellee, v. Rosezene DAVIS and Clarence Cohen, Jr.. Appeal of Rosezene DAVIS.
    Superior Court of Pennsylvania.
    Argued May 28, 1992.
    Filed Sept. 3, 1992.

      Andrew K. Fine, Philadelphia, for appellant (submitted).
    Michele D. Carter, Philadelphia, for appellees Aetna and Davis.
    Before CIRILLO, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge.

This is an appeal from the October 1, 1991, order granting summary judgment in favor of appellee Aetna Casualty & Surety Company (“Aetna”). We reverse.

Most recently, this Court re-stated the standard of review with regard to an order granting summary judgment; to-wit:

Summary judgment may properly be entered only 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.” Pa.R.Civ.P. 1035(b).
The moving party has the burden of persuading the court that no genuine issues exist as to the material facts. Summary judgment may be entered only where the case is free from doubt. In passing upon a motion for summary judgment, moreover, a court must examine the record in the light most favorable to the non-moving party. Any doubt must be resolved against the moving party.
We will overturn a trial court’s entry of summary judgment only if there has been an error of law or clear abuse of discretion.

Allen v. Merriweather, 413 Pa.Super. 410, 605 A.2d 424, 425 (1992) (citations omitted). With these precepts in mind, we will examine whether the summary judgment was entered properly.

On February 2, 1990, Aetna filed an action for declaratory judgment pursuant to 42 Pa.C.S.A. § 7531 et seq. to determine whether liability/indemnification coverage was due its insured, Clarence Cohen, Jr.

Aetna had issued Cohen an automobile liability policy covering his van. The policy did not provide uninsured motorist coverage for bodily injury sustained by “any person” while occupying the covered vehicle when it was “used to carry persons or property for a fee.”

It was Aetna’s position that the carry-for-a-fee clause excused it from paying Rosezene Davis’ claim for bodily injuries sustained while a passenger in Cohen’s van. Allegedly, Cohen “had been transporting a refrigerator for a fee within his vehicle when the incident [resulting in Davis’ injuries] occurred.” Therefore, it urged the exclusion clause, with respect to the uninsured motorist coverage section of the policy, rendered unavailable uninsured motorist coverage to Davis since she was a person seeking uninsured motorist coverage while occupying a covered automobile when it was used to carry property for a fee. Paragraph 19.

In answer, Davis denied that Cohen was transporting a refrigerator for a fee or that a third party paid Davis to accompany Cohen in his delivery of a refrigerator. Similarly, Cohen’s response to the action for declaratory judgment denied being hired by either Davis or a third party to transport a refrigerator for a fee of $15.00.

Thereafter, Aetna filed a motion for summary judgment wherein it was asserted that because Cohen’s policy excluded uninsured motorist coverage when the vehicle carried person or property for a fee, Davis’ presence in his van for the purpose of being transported along with the other property for a fee “operate[d] to exclude any liability indemnification and/or Uninsured Motorist Coverage to ... Davis arising from the incident.” To buttress its contention that Cohen received remuneration for transporting a refrigerator while Davis was a passenger in his van, deposition testimony was attached revealing that Cohen had purchased a van. He was approached by a friend (Charles Butt) to do him a favor, i.e., transport Butt, his lady Mend and a refrigerator she intended to purchase. Butt’s lady friend asked Ms. Davis to accompany them “to show her where to get the ice box”, for which Davis was paid $5.00 by the lady friend.

After Ms. Davis was “dropped off’, Cohen took his friend, the refrigerator and its owner to their destination. Once there, the friend of the lady/owner of the refrigerator removed it from the van, and, according to the exchange between counsel and Cohen, money was paid at that time; namely:

Q. When you got there, and you dropped off the refrigerator, and it was taken out of the van by the friend, what happened after that? Did you receive some money by the friend of that person who took the refrigerator out?
A. He gave me $15.
Q. The friend of the person who owned the refrigerator gave you $15 after the refrigerator was taken out of the van?
A. When the refrigerator was taken out of the van, the friend to this lady, that was Rosezene Davis’ friend, he gave me $15.
Q. Did he give you anything else, other than $15? Were any pieces of paper or documents generated?
A. No. He just told me that he appreciated that I had helped his lady out.

Exhibit “G”, page 26 (Emphasis added).

It would appear that Davis was injured in a one-vehicle accident while a passenger en route to deliver a refrigerator for her lady friend/purchaser, i.e., after the refrigerator had been picked up, the accident occurred and Davis was dropped off thereafter but before the refrigerator reached its ultimate destination and Cohen was paid.

From a review of the remaining transcript excerpts, it would appear that Cohen’s transportation excursion was “something out of the clear blue sky”, and it was done as a “favor” for a “friend”. Although compensation was to be made, Cohen wanted it “to buy [his] gas or something.” Exhibit “G”, page 28. Yet, the fortuitous nature of Cohen being paid is evident from the fact that he took on the task of transporting people and refrigerator without any assurance that payment would be forthcoming with the completion of the delivery; to-wit:

Q. You drove it home and ran into Charles Butt. Then he asked, “Could you help me out moving a refrigerator for somebody?”
A. That is how it happened.
Q. When you had the conversation with Charles Butt about moving the refrigerator, what specifically did you talk about? What did you agree to do?
A. I talked with him. We had to go get the refrigerator, and I brought it back down there for this lady. When we get there, we put the refrigerator on my truck and from Frankford Avenue, we took it down to 5th Street and Washington Avenue in an apartment house down there. When I got there, they were giving me $15.
Q. When you got there someone gave you $15?
A. Yes. The guy who was down there.
Q. Who was this guy you are talking about?
A. I don’t know. It was supposed to have been a friend of these people.
Q. When you first spoke to Charles Butt, when you got back to your house with the new van, did you talk to him about receiving money to move the refrigerator?
A. I asked him if these people — did they have any money.
Q. What did he say?
A. He said he did not know at the time.
Q. Did you ask him specifically whether they were willing to pay you $15 to move the refrigerator for any other amount?
A. No. I did not ask him specifically.
Q. But you did ask him about whether they had money to pay to move the refrigerator?
A. I asked him if they was [sic] willing to compensate me for some kind of gas money — to pay for the gas.
Q. How much gas did you end up using driving the refrigerator around that day?
A. Well, I cannot say. I just put whatever I figured I needed in there — $5.00, $6.00, whatever.
Q. You talked to Charles Butt. You mentioned the idea of getting some kind of compensation. Then what happened? You went in your van and drove to Frankford Avenue?
A. Yes.
Hi Hs * H* H« H*
Q. Have you ever used your van for moving someone else’s stuff for any kind of charge?
A. No.
Q. That was the only time you did that?
A. Mister, my van was bought for recycling.
Q. You never moved anybody else’s stuff for a charge?
A. No, sir. I would not do that because it is too much work for me, for too little....
Hi H: & * * *
[Q.] Charles Butt when you first ran into him after getting the van. Did you talk about compensation for giving people a ride, as well?
A. No. I am not going into that. The truck was bought for recycling purposes, and this thing happened out of the clear blue sky — doing a friend a favor. Otherwise, I do not do that.
Q. You went to 16th and Christian Streets and dropped off Rosezene Davis?
A. Right.
Q. When you dropped her off, were you paid any compensation?
A. No, sir.
Q. Were you ever given $5.00 from anyone for the purpose of giving Rosezene Davis a ride?
A. Rosezene Davis was given $5.00 from the other lady to go with her — to accompany her. This is where the $5.00 came in.
Q. You are saying that the person who owned the refrigerator paid Rosezene Davis?
A. Paid Rosezene $5.00 to accompany her, to go with her to show her where to get the ice box....

See Exhibits “B”, “C”, “D” & “E”, pages 17, 18, 24 & 36 attached to Trial Court Opinion dated 11/27/91 (Emphasis added).

Instantly, we have an individual agreeing to transport an item and individuals to a set destination for a friend. Although he asked to be compensated for the gas to be consumed, he took on the delivery without any guarantee or discussion as to payment or the amount of remuneration. No condition precedent or subsequent was testified to before delivery of the refrigerator could occur. In fact, Cohen’s Mend could tell him no more than “he did not know at the time ... if these people ... ha[d] any money” to pay him. Thus, Cohen embarked on a course of action without any advance knowledge of whether he would be compensated for agreeing to transport equipment and people.

With the close of the pleadings, the court below entered its order finding in favor of Aetna in the belief that Cohen’s actions came within the “carrying persons or property for a fee” exclusion of Aetna’s policy so as to preclude Davis from recovering under the uninsured motorist provision of Cohen’s policy. This appeal was taken by Davis.

We begin our inquiry with the admission that the case law in this jurisdiction is sparse and vintaged on the enforceability of a “carrying for fee” exclusion in insurance contracts. Accordingly, we have looked to other jurisdictions and the federal courts to supplement our research.

In Rykill v. Franklin Fire Ins. Co., 80 Pa.Super. 492 (1923), an insured filed three claims with his insurer. Two of the three accidents occurred after the insured had applied for and received a “Jitney Automobile” permit which gave him a license to carry passengers for hire.

The insurer defended at trial on the basis of stipulations that caused the policy to “cease and terminate ... if the automobile ... be used for carrying passengers for compensation or be rented or hired ... for consideration ... No exceptions.” Preceding two of the accidents, the automobile had been used to carry passengers for hire.

The trial court adopted the view that unless the automobile was being used for a prohibited use at the time of the accident, it was not a defense against the claim. We disagreed and caused judgment to be entered in favor of the insurer notwithstanding the verdict for the insured. In doing so, we wrote:

The learned trial judge ... held that unless the automobile was being used for a prohibited use at the time the accident took place, it was not a defense against the claim. With this conclusion, we do not agree. Such a view defeats wholly the manifest purpose of the stipulation and does violence to its terms. The provision is a reasonable one. It was the privilege of the company to decline to enter into this contract unless the insured agreed that the car would not be used at any time to carry passengers for compensation. It is a matter of common knowledge that the premium rate of insurance upon automobiles used for commercial purposes is higher than on cars used for pleasure. The obvious reason for this is the increased hazard. The rate charged is based upon the terms of the contract. No reason is advanced for disregarding the contract.
******
In the case at bar, the use of the automobile for carrying passengers for hire is prohibited in terms. The insured must be held to have known that his contract terminated if he violated its conditions. Nor is this case of the violation of the terms in one instance only. The evidence shows that the use of the car for the prohibited purpose was habitual rather than exceptional. It is not straining a point to hold that the use rendered the policy void.

80 Pa.Super. at 493-94, 495 (Emphasis added); cf. Murphy & Co. v. MFG’s Cas. Co., 89 Pa.Super. 281 (1926) (Automobile used by insured to carry material to his workmen did not fall within exclusion clause’s prohibition against use for “commercial delivery”; clause contemplated the commercial delivery of goods to a customer and not the incidental carrying of packages in connection with one’s business affairs).

Our Supreme Court in Gross v. Kubel et al., 315 Pa. 396, 172 A. 649 (1934) affirmed the garnishee/insurer’s disclaimer of liability under a policy of insurance which conditioned coverage on the automobile not being operated “for carrying passengers for hire” at the time of the accident.

At the moment of the accident in Gross, the insured/Kubel had four members of the basketball team traveling to a site to play a game. Occasionally in those instances when the school attended by Kubel and his teammates did not provide bus or rail travel to the games, cars owned by the players were used. The owner was reimbursed an amount equivalent to bus fares or compensated for the cost of oil and gasoline and given an additional sum for the use of the vehicle.

On the way to the game, a member of the team and a nonpaying (non-team member) passenger were injured in an accident. They brought suit against Kubel and obtained judgment against him. The insurer denied liability under the policy’s clause of negating coverage where the vehicle was used “for carrying passengers for hire.” The conclusion that the injured plaintiffs were not entitled to sue the insured was noted by the Gross Court to be as follows:

“Under the facts, which are substantially undisputed, it is clear that the defendant was operating his car in the transportation of passengers for hire when the accident occurred. The arrangement for compensation under which he was carrying his passengers was more than a mere reimbursement for the gas and oil used by all in common on the trip. It went to the additional extent of compensating him for the use of the car. Had he been paid only a sum equivalent to the cost of the gas and oil used a serious question might have arisen as to whether such a payment would have constituted a carrying for hire. The additional sum paid to him, however, brings the operation of the car squarely within the clause of the policy. * * * ”
... the garnishee had a complete defense to the attached execution, not only as to plaintiff Gross but also as to Miss Cromley, who was a guest in the car. Referring to the judgment secured by the latter, the trial judge correctly stated: “The fact, therefore, that this plaintiff was not herself a paying passenger cannot give her any rights against the garnishee, whose policy did not cover the accident in which she sustained her injuries.”

315 Pa. at 399-400, 172 A. at 650 (Emphasis added).

The final case in this jurisdiction to address the passenger-for-consideration exclusion was Orcutt v. Erie Indemnity Co., 114 Pa.Super. 493, 174 A. 625 (1934).

In Orcutt, a passenger injured in an insured’s vehicle sought to recover judgment against the insurer, who disclaimed liability under a policy which provided “no liability is assumed on account of accidents occurring while the insured automobile is operated with the consent of the Insured * * * for rental, hire or livery or carrying of passengers for a consideration.” Id.

The facts and rationale for denying coverage in Orcutt consisted of the following:

On November 15, 1930, Melbourne Orcutt, the plaintiff, a painter, went to a feed store in the city of Sharon for the purpose of having the owner transport him, with some paint which he was about to use, to another point in that city. The owner of the store was busy, and could not accommodate the plaintiff, but Mendicino chanced to be present on some business, and, at the request of plaintiff, carried him as requested with his paint and some small articles. When they reached their destination, Orcutt asked Mendicino what the charges were, and, after some conversation, paid him 25 cents for the trip, and explained that he was going to be busy only for an hour or two, and that he then desired Mendicino to haul him, with his ladders and paint, to another point. Mendicino gave Orcutt his telephone number and said if he needed him to call him up again. He did call, and during the return trip, and while a passenger in the car, Orcutt suffered the injuries for which he recovered judgment. The compensation for the return trip was not actually paid. The following question and answer by Mendicino bear directly upon the subject: “Q. State whether or not he made an arrangement with you whereby you would haul him and his ladders whenever he wanted you to? A. He was talking that way, but we didn’t make no contract. I said I couldn’t be ready all the time for him, because I have got something else to do. I said, ‘Maybe, some time, if you need any work, that’s what I’m doing.’ ”
It is impossible to draw any other inference from this testimony than that Mendicino was operating his car at the time of the accident for compensation or hire. They were entire strangers to each other, never having met before, and there is not a single circumstance from which an inference could be drawn that Mendicino or Orcutt contemplated that the work would be performed without charge. Neither is there any significance in the fact that the compensation was not actually paid for the return trip.

114 Pa.Super. at 494-95, 174 A. at 626 (Emphasis added).

The result reached in other jurisdictions is varied and controlled by the facts of the individual case. See Myers v. Ocean Accident & Guarantee Corp., 99 F.2d 485, 489 (4th Cir.1938). It appears, however, to be well settled that an occasional or incidental use of the insured vehicle to transport passengers will not avoid liability under an exclusion (“carrying a passenger for hire”) clause, as such use has been interpreted to constitute no holding out for hire of the vehicle. See Anno., 30 A.L.R.2d 273, 277 at § 5 (1953).

From our survey of the applicable case law:

It is apparent that the authorities quite generally concede that money passing from the passenger [or third party] to the operator of a car, though associated with the carrying of the passenger, may or may not be a consideration for such carrying, within the meaning of a provision such as we are considering[ — “the carrying of persons for consideration”]. In making the distinction the courts take into consideration not alone the bare transaction but all its surrounding circumstances, including among other things the status and relations of the parties one to another, the existence or lack of common interest, pleasure or benefit in the making of the journey, and the relation of the amount of money to the actual costs of carrying.

Myers, supra, 99 F.2d at 493 (Citation omitted). Accord State Farm Mut. Auto. Ins. Co. v. Self, 93 F.2d 139, 140 (5th Cir.1937); Ocean Accident & Guarantee Corp. v. Olson, 87 F.2d 465, 467 (8th Cir.1937).

An extended analysis of the case law on this subject need not be undertaken. In light of the facts and of the decisions uncovered by our own research, we are constrained to reverse the judgment of the court below: The case before us is one in which the owner of the van had no knowledge of whether he would be reimbursed for operating expenses, contrast Gross, supra; Orcutt, supra; Rykill, supra; State Compensation Ins. Fund et al. v. Bankers Indemnity Ins. Co., 106 F.2d 368 (9th Cir.1939); Jensen v. Canadian Indemnity Co., 98 F.2d 469 (9th Cir.1938); there was no fixed amount to be paid prior to Cohen embarking on the journey, contrast Gross, supra; Orcutt, supra; Martin v. Rivera, 545 N.E.2d 32 (Ct.App.Ind.1989); Johnston v. Allstate Ins. Co., 505 So.2d 362 (Ala.1987); State Farm Mut. Auto. Ins. Co. v. Self, 93 F.2d 139, 140 (5th Cir.1937); Ocean Accident & Guarantee Corp. v. Olson, supra, 87 F.2d at 467; Cohen had no guarantee that he would be reimbursed for making the trip gratuitous at the outset, but remunerative at its completion; it was an isolated incident, contrast Rykill, supra; American Lumbermen’s Mut. Cas. Co. v. Wilcox, 16 F.Supp. 799 (W.D.N.Y.1936); it was motivated by Cohen’s friendship with and to do a favor for one of the three people (plus ice box) transported, see Juszkiewicz v. N.J. Fidelity & P.G. Ins. Co., 210 App.Div. 675, 206 N.Y.S. 566 (1924); no clear evidence of an express or implied contract that Cohen was to be compensated for transportation as a separate and distinct charge independent of the gasoline consumed, Reed v. Bloom, 15 F.Supp. 600 (W.D.Okla.1936); and, the evidence could be viewed (by the trier-of-fact) as a voluntary contribution or as a social amenity. Contrast Jensen, supra.

Accordingly, based on the particular facts recounted here, although there may be no genuine issue of material fact in dispute, Aetna is not entitled to the grant of its motion for summary judgment as a matter of law.

Judgment reversed; jurisdiction is relinquished.

      . The clause in question reads in relevant part:
      EXCLUSIONS
      A. We do not provide Uninsured ... Motorist coverage for bodily injury sustained by any person:
      1. ...
      2. While occupying your covered auto when it is being used to carry persons or property for a fee. This exclusion does not apply to the share-the-expense car pool.

      . The third vehicular accident reported, although occurring before the insured acquired his "Jitney license”, was found to have been based on insufficient evidence and warranted reversal in favor of the insurer as well.


author: OLSZEWSKI, Judge.

text:
    614 A.2d 279
    TYRO INDUSTRIES, INC., Appellant, v. JAMES A. WOOD, INC., Great American Insurance Company, and AFCO Credit Corporation, Appellees.
    Superior Court of Pennsylvania.
    Argued May 13, 1992.
    Filed Sept. 8, 1992.

      Ethan N. Halberstadt, King of Prussia, for appellant.
    Michael Glasheen, Philadelphia, for appellee AFCO Credit Corp.
    Charles D. Fazio, Philadelphia, for appellee Great American.

      Before WIEAND, OLSZEWSKI and KELLY, JJ.
   OLSZEWSKI, Judge.

This is an appeal from the order entered June 10, 1991, in the Court of Common Pleas of Philadelphia County, granting appellee AFCO Credit Corporation’s (AFCO) motion to dismiss on the basis of forum non conveniens. The factual and procedural history of this case follows.

Appellant Tyro Industries (Tyro) is a New York corporation registered to do business in Pennsylvania, and which maintains its principal place of business in New York. Appellee AFCO is a business incorporated under the laws of New York. Appellee Great American Insurance Company is a New York corporation. The instant controversy was generated out of a construction project in Northampton County, Pennsylvania, wherein Tyro was a subcontractor with the Pennsylvania Department of Transportation (PennDOT), and was required to maintain insurance coverage in order to work on that project. James Wood, Inc., acting as an insurance broker, issued insurance coverage under a Great American Insurance Company policy. AFCO financed payment for the insurance coverage.

The insurance contract was written and subsequently suspended, for alleged failure to pay premiums, in the State of New York. As a result of the suspension, Tyro was discharged from the construction project. Consequently, Tyro filed a complaint in the Philadelphia Court of Common Pleas alleging that Great American, AFCO, and Wood breached their contracts with Tyro when they caused the insurance coverage to be improperly suspended. Shortly after the complaint was filed, Wood filed preliminary objections on the basis of jurisdiction. The trial court denied these objections, and Wood appealed. On December 27, 1990, this Court reversed the trial court’s order allowing Pennsylvania to assert jurisdiction over Wood. (R.R. at 112a-119a.) On April 25, 1991, the trial court vacated its previous order and dismissed Tyro’s complaint against Wood for lack of personal jurisdiction. (R.R. at 4a.) Wood is no longer a party to this action.

AFCO consequently filed a renewed motion to dismiss on the basis of forum non conveniens. (R.R. at 131a.) Tyro answered the petition by asserting that Pennsylvania was the appropriate forum for this action. On June 5, 1991, the Court of Common Pleas of Philadelphia County granted AFCO’s renewed petition to dismiss. Tyro’s present appeal is from that order.

Two issues are presented for our review. First, Tyro asserts that neither party to this action has satisfied the requisites of Pa.R.C.P. 209, which requires that the parties resolve material factual disputes before an action is dismissed. See Pa.R.C.P. No. 209, 42 Pa.C.S.A. Second, Tyro asserts that the renewed petition to dismiss was erroneously granted, because at the time of the dismissal there were remaining issues of material fact in dispute concerning the most appropriate forum. Finding no merit to either of appellant’s allegations of error, we affirm the order of the trial court dismissing this action, without prejudice to file again in another forum. Before addressing these issues, we find it necessary to address the trial court’s forum non conveniens analysis, because it is related to appellant’s first argument.

This controversy is partly governed by Pennsylvania’s Long Arm Statute. See 42 Pa.C.S.A. § 5322 et seq. Because our courts are without the authority to transfer cases to other states, dismissal of the action is the only appropriate result. See Alford v. Phila. Coca-Cola Bottling, 366 Pa.Super. 510, 531 A.2d 792 (1987). Section 5322 allows for dismissal of interstate controversies under the doctrine of forum non conveniens, when a court determines that another state offers a more appropriate forum for the case. 42 Pa.C.S.A. § 5322(e). The decision to dismiss is within the trial court’s discretion, and will not be reversed where there is no abuse of discretion. Beatrice Foods Co. v. Proctor and Schwartz, Inc., 309 Pa.Super. 351, 359-60, 455 A.2d 646, 650 (1982). It is not enough for an appellant challenging dismissal to persuade the appellate court that it might have reached a different conclusion; If there is any basis for the trial court’s decision, the ruling will not be disturbed. Cinousis v. Hechinger Dept. Store, 406 Pa.Super. 500, 594 A.2d 731 (1991) (citations omitted).

We have held that a court should not deprive a plaintiff of the chosen forum unless the defendant clearly presents facts that “either (1) establish such oppressiveness and vexation to a defendant so 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 administrative and legal problems.” Alford 366 Pa.Super. at 514, 531 A.2d at 794. Following are some of the private interests which a court must consider:

the 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 ... appropriate ..., and all other practical problems that make trial of a case easy, expeditious and inexpensive.

Petty v. Suburban General Hospital, 363 Pa.Super. 277, 282, 525 A.2d 1230, 1232 (1987). In Petty we also set forth several public interest factors which the court must consider:

problems of creating court congestion and imposing jury duty upon people of a community which has no relation to the litigation; the appropriateness of having the action tried in a forum where the court is familiar with the law that must govern the case, rather than having a court in some other forum step into a quick-sand of conflict of laws problems and foreign law.

Id. In the instant case, the trial court carefully weighed the required factors and concluded properly that the Philadelphia Court of Common Pleas was not the most convenient forum. There is no abuse of discretion which could justify reversal of the trial court’s order.

Guided by the factors previously set forth in Alford and Petty, we find that all relevant material issues of fact were considered by the trial court. The court noted that Tyro, AFCO, and Great American are all New York corporations. Trial court opinion, 10/17/91, at 4. The court also noted that the insurance financing agreement, the insurance contract, and the alleged breach thereof all arose in New York, and that virtually all witnesses reside in New York. Id. The court considered these and other private factors it was required to consider in a forum non conveniens analysis. (See discussion of factors, above.)

The court took note of the fact that resolution of the case in Philadelphia County would result in a needless conflict of laws situation, because New York banking laws would apply to these facts. Trial court opinion, 10/17/91, at 6-7. The court pointed out that if the case were heard in Philadelphia, Pennsylvania tax dollars would be spent on a controversy with only tangential contacts with Philadelphia. Id. at 8. In addition, the trial court highlighted the fact that New York’s statute of limitations for breach of contract is six years; appellant has sufficient time within which to file another complaint in the appropriate forum. This is an even more pertinent and persuasive piece of information given the fact that no discovery had yet been taken when the court filed its opinion. Id. The trial court more than adequately considered the public interest factors when it set forth its forum non conveniens analysis. Appellant’s contention that there were unresolved material factual issues is without merit. Our discussion does not end here.

Appellant’s arguments on this appeal are not direct challenges to the finding of Philadelphia as an inconveniént forum. Instead, appellant claims that Pa.R.C.P. 209 was compromised in the trial court’s forum non conveniens ruling. Pa.R.C.P. 209 instructs that:

If, after filing and service of the answer, the moving party does not within fifteen days:
(a) proceed by rule or by agreement of counsel to take depositions on disputed issues of material fact; or,
(b) Order the cause for argument on petition and answer (in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule); the respondent may take a rule as of course on the moving party to show cause why he should not proceed as above. If after hearing the rule shall be made absolute by the court, and the petitioner shall not proceed, as above provided, within fifteen days thereafter, the respondent may order the cause for argument on petition and answer, in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule.

Pa.R.C.P. No. 209, 42 Pa.C.S.A. (emphasis supplied). “Rule 209 provides an efficient means of addressing disputed factual issues that often arise from the exchange of petition and answer. Because a petition to dismiss pursuant to section 5322(e) raises the same kind of fact issues that a petition to transfer raises, the Rule 209 procedures apply equally to both.” Alford 366 Pa.Super. at 515, 531 A.2d at 795. At this juncture, we note that appellant, the respondent to the motion to dismiss, neither filed a rule to show cause, nor requested depositions, nor did it raise any Rule 209 arguments at the trial level.

In support of its contention that Rule 209 was compromised in this case, appellant points to its claim that there are necessary witnesses residing in or near Philadelphia, while appellees claim all relevant witnesses are located in New York. Appellant avers that this is a crucial issue of unresolved material fact, and that since the trial court did not “spur the parties along” toward resolution of the dispute, there is an abuse of discretion which requires reversal of the trial court’s order. Appellant also points to its tortious interference with contract claim as an example of an unresolved issue of material fact. Tyro argues that Pennsylvania law controls the disposition of this claim, and that the trial court erred by not permitting the case to proceed in Pennsylvania without further factual findings. We disagree.

Our highest state court has held that the mechanism of Rule 209 is unnecessary where, as here, a party responding to a motion to dismiss fails to present evidence which contradicts the facts averred by the petitioner. See Schultz v. Erie Insurance Exchange, 505 Pa. 90, 94, 477 A.2d 471, 473 (1984) (“[t]he averments contained in Erie’s petition being admitted, the court rendered its decision.... Under the circumstances the court’s action was quite proper; ... argument [to the contrary] ... is without merit.”) In addition, when this Court was recently presented with a claim that Rule 209 should have prevented the trial court from disposing of a motion to compel a medical examination, we held that:

[t]he justification for entering the Order without pursuing the procedure established by Rule 209 is that the record was clear from the pleadings and affidavits that depositions or arguments were unnecessary to a resolution of the motion, even if a controversy existed.... When the burden of providing proof of good cause has been met, it is unnecessary to take depositions or proceed with oral argument.

State Farm Insurance Companies v. Swantner, 406 Pa.Super. 235, 246, 594 A.2d 316, 321 (1991) (en banc).

As in Swantner, we find that there was overwhelming information presented in the early stages of this case to support the trial court’s disposition of the motion without engaging the Rule 209 procedure. The pleadings in the record reveal three New York corporations involved in a controversy over a contract entered into, breached in, and controlled by law of New York state. There would have been no benefit for the court to order depositions in any of the matters complained of by Tyro, because in this case, “New York is the only forum where all original parties may participate and avoid a duplicative lawsuit.” See trial court opinion, 10/17/91, at 4. We are unable to find an abuse of discretion in the trial court’s order dismissing this case on the basis of forum non conveniens without benefit of Rule 209 procedure. Before finally concluding our discussion of this case, we find it necessary to refute an argument briefed by Great American and raised in Tyro’s reply brief: the outcome of this action is not controlled by the doctrine of law of the case.

Appellee Great American urges this Court to find appellant’s arguments against dismissal to be moot because this Court, in a memorandum decision, found the exercise of personal jurisdiction over Wood to be impermissible. The trial court subsequently dismissed Wood from the suit. Contrary to appellee’s arguments, our decision regarding Wood does not control the outcome of the instant action.

Appellee asserts that the Wood memorandum became the law of the case regarding the instant action. “Law of the case means that whatever is once irrevocably established as the controlling legal rule of decision between the same parties in the same case continues to be the law of the case.” Banker v. Valley Forge Ins. Co., 401 Pa.Super. 367, 374, 585 A.2d 504, 508 (1991) (citations omitted, emphasis supplied). The doctrine of “law of the case” applies only if the parties on the two appeals are the same. Issues decided by an appellate court on a prior appeal between the same parties become the law of the case and will not be considered on appeal. Id.

Throughout the history of this controversy, Tyro has been the plaintifi/appellant. Appellee was a defendant in the original action. On the first appeal, Great American was an appellee, and thus a party. On this appeal, Great American is once again an appellee. Therefore, the requirement under law of the case that there be identity of parties is satisfied. The identity of issues element, however, is lacking in these appeals. When this Court considered Wood’s appeal, we stated that “the issue raised on appeal requires solely that we determine whether the Common Pleas Court of Philadelphia County can assert personal jurisdiction over the appellant.” Tyro v. James A. Wood, Inc., Great American Insurance Company and AFCO Credit Corporation, Appeal of James A. Wood, Inc., 408 Pa.Super. 660, 588 A.2d 570 No. 01243 Phila. 1990, memorandum decision filed 12/27/90. (Emphasis supplied.) Personal jurisdiction is not the controlling legal rule of decision on this appeal, nor does the minimum contacts analysis underlying the determination of personal jurisdiction control the instant case. Rather, the case at bar requires our careful consideration of Rule 209 and the elements of a forum non conveniens analysis. The doctrine of law of the case does not operate in this situation to preclude our consideration of appellant’s allegations of error, as we have done, supra.

For the reasons stated above, we affirm the order of the trial court dismissing this action, without prejudice to file again in New York.

      . Ordinarily, memorandum decisions by this Court are not to be relied upon or cited by a court or a party in any other action or proceeding. See Decisional Procedures, Internal Operating Procedures of the Superior Court, § 65.37; reproduced in Pennsylvania Rules of Court, 1991. An exception is made, however, if the case is relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Id. Because Great American is relying upon the unpublished Wood memorandum in accordance with the exception to our general rule, our present review of the memorandum is proper.