author: BROSKY, Judge:

text:
    548 A.2d 1259
    Sadye RESS and Sanford Ress, Appellants, v. Esther BARENT, Bernard Zvirman, Edward Threlfall, Jr., Bernard Ress Company, Inc., and B.J. Ress Company, Inc.
    Superior Court of Pennsylvania.
    Argued June 29, 1988.
    Filed Oct. 4, 1988.

      Meghan F. Wise, Pittsburgh, for appellants.
    Bernard J. Sweer, Pittsburgh, for Barent, appellee.
    Harvey A. Miller, Jr., Pittsburgh, for Threlfall, appellee.
    Before BROSKY, JOHNSON  and MELINSON, JJ.

       Johnson, J. did not participate in the disposition of this case.

   BROSKY, Judge:

This is an appeal from the order of December 2, 1987, which granted appellees’ preliminary objections, and dismissed appellants’ complaint without leave to amend.

Appellants are Sadye Ress and Sanford Ress, the widow and son, respectively, of the late Bernard Ress. For forty years, Bernard Ress owned and operated a restaurant supply and equipment business in the Pittsburgh area, known as the Bernard Ress Company. On December 31, 1971, Ress made an agreement with three long-time employees, Esther Barent, Bernard Zvirman, and Edward Threlfall, three of four appellees herein. The agreement transferred to these appellees all of the inventory and stock in trade of Ress’s business, as well as all obligations and liabilities associated with it, for the continuation of the business by appellees’ new corporation, the Bernard Ress Company, Inc. With respect to the trade name “Bernard Ress Company”, however, the agreement of sale contained the following restrictive covenant upon its use:

6. Buyer may use the name “Bernard Ress Company” as the name of any restaurant, bar supply and kitchen equipment business that it may hereafter conduct; provided, however, that Buyer may not transfer or assign this right to any other party and that in the event that at any time after the date of this Agreement ESTHER BARENT, BERNARD ZVIRMAN, or EDWARD THRELFALL, JR., either individually or collectively, do not own at least 51% of the then issued and outstanding capital stock of Buyer, Buyer shall immediately cease using the name Bernard Ress Company or any similar name unless Buyer shall have secured Seller’s permission for such continued use. (Emphasis supplied.)

Ress died in 1983, and named his widow, Sadye, as his personal representative. Shortly after Ress’s death, appellants Sadye and Sanford Ress learned that appellees Barent, Zvirman, and Threlfall had transferred the assets of their corporation, the Bernard Ress Company, Inc., to a new corporation, the B.J. Ress Company, Inc., in which they no longer owned 51% of the outstanding stock. Appellants also learned that the new corporation was continuing to use the trade name “Bernard Ress Company”.

On May 8, 1987, counsel for appellants wrote to the B.J. Ress Company, Inc., demanding that it immediately cease the use of the “Bernard Ress Company” trade name. That demand was ignored, and, on June 26, 1987, appellants filed a complaint against Barent, Zvirman, Threlfall, and the B.J. Ress Company, Inc. (the fourth appellee herein), requesting declaratory and injunctive relief based on the use of the trade name “Bernard Ress Company” in alleged violation of the restrictive covenant contained within the original agreement of sale. All four appellees filed preliminary objections, in the nature of a demurrer, arguing: (1) that the restrictive covenant was not intended to survive the death of Bernard Ress, and that any cause of action pursuant to the covenant was thereby precluded; and (2) that appellants had no capacity to sue under the facts alleged. By order of December 2, 1987, the trial court sustained the preliminary objections of all appellees, without opinion, and dismissed appellants’ complaint without leave to amend. This timely appeal followed.

Appellants now contend that the trial court erred in dismissing their complaint, and raise the following four questions: (1) whether a contract provision restricting the use of a trade name is enforceable after the death of one of the parties to the contract; (2) whether the personal representative of the deceased owner of a trade name has standing to sue to enjoin the unlawful use of the trade name; (3) whether the heirs of the owner of a trade name have standing to sue to enjoin the unlawful use of the trade name; and (4) whether use of a trade name by a third party transferee of the right thereto may be enjoined where such use is unauthorized.

Upon consideration of the arguments raised by the briefs of counsel, we now vacate the trial court’s order dismissing the complaint, and grant appellants leave to amend in accordance with this opinion.

In ruling upon preliminary objections in the nature of a demurrer, the court must accept as true all well-pleaded, material, relevant facts, and all inferences fairly deducible from those facts, but not the pleader’s conclusions or averments of law. County of Allegheny v. Comm. of Pa., 507 Pa. 360, 490 A.2d 402, 408 (1985). The demurrer should not be sustained unless it is clear from the face of the complaint that no theory of law will permit a recovery. Id.; Chartiers Valley School District v. Virginia Mansions Apartments, Inc., 340 Pa.Super. 285, 489 A.2d 1381, 1386 (1985). Rather, where the law will permit a recovery, leave to amend should be liberally granted. Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600, 602 (1983); Pa.R.C.P. 1033.

Appellants’ first contention is that the restrictive covenant contained within the contract is enforceable after the death of Bernard Ress, and that the complaint requesting declaratory and injunctive relief pursuant to that covenant should not have been dismissed out of hand.

To be enforceable, a restrictive covenant must satisfy three requirements: (1) it must relate to either a contract for the sale of goodwill or other subject property, or to a contract for employment; (2) it must be supported by adequate consideration; and (3) it must be reasonably limited in both time and territory. Piercing Pagoda, Inc. v. Hoffner, 465 Pa. 500, 351 A.2d 207, 210 (1976). Clearly, the dispute sub judice arises from the third requirement. While appellees do not dispute that a restrictive covenant may extend in its duration to one of the parties’ heirs and assigns and be reasonable in duration, they are maintaining that to interpret the restrictive covenant herein as extending beyond Bernard Ress’s death, in the absence of any express language extending the right to enforce the covenant to his heirs and assigns, would extend what was intended to be a privilege purely personal to Bernard Ress, for an unreasonable length of time. Hence, we are called upon to determine whether a restrictive covenant pertaining to the use of a trade name, in the absence of express language concerning heirs and assigns, may be interpreted as intended to be enforceable beyond the death of the owner of the trade name.

It is a cardinal rule of contract interpretation that the intention of the parties at the time the contract is entered into governs; this rule also holds true in the interpretation of restrictive covenants. Great Atlantic and Pacific Tea Co. v. Bailey, 421 Pa. 540, 220 A.2d 1, 2 (1966). It is also a general rule of contract law, however, that contracts made during a decedent’s lifetime are not dissolved by death unless they involve peculiar skills or are based on distinctly personal considerations. Unit Vending Corp. v. Lacas, 410 Pa. 614, 190 A.2d 298, 300 (1963); In re Stormer’s Estate, 385 Pa. 382, 123 A.2d 627, 629 (1956). Hence, while appellees would have us apply the ancient maxim “expressio unius est exclusio alterius”, or “that which is not included is excluded” to automatically infer, from the absence of express language pertaining to heirs and assigns, that the restrictive covenant was intended to die with Bernard Ress, we cannot so infer. This maxim merely expresses a rule of construction, and not a rule of substantive law; it is not to be invoked arbitrarily to bar reasonable inferences to the contrary, or when an examination of the entire transaction reveals a different or more inclusive intent. Checker Oil Co. of Delaware, Inc. v. Harold H. Hogg, Inc., 251 Pa.Super. 351, 380 A.2d 815, 817 (1977).

In point of fact, it has previously been held that, where a contract fails to provide for the contingency of the death of a party, it is not to be presumed that the contract was intended to “die” with the decedent, but, rather, the contract is ambiguous and doubtful as to this contingency, and resort must be had to other rules of contract interpretation. See Unit Vending, supra. One of these rules is that the court will adopt the interpretation, which under all the circumstances of the case, ascribes the most reasonable, probable, and natural conduct of the parties, bearing in mind the objects to be accomplished. Id., citing Weigand v. Weigand, 349 Pa. 517, 37 A.2d 492 (1944), and Brookbank v. Benedum-Trees Oil Co., 389 Pa. 151, 152, 131 A.2d 103 (1957).

Appellees maintain that, even setting aside the absence of express language concerning heirs and assigns, the restriction involved was intended for the distinct personal consideration of protecting Ress’s name while he lived, and hence was not “reasonably, probably, or naturally” intended to survive him. Appellants, on the other hand, argue that Ress intended by the restriction to protect the family trade name in perpetuity, thus making the restriction capable of being enforced by Ress’s heirs and personal representative. To resolve this conflict, it may prove beneficial to consult that law which is applicable to trade names, and determine the following: is a trade name so personal and peculiar to the owner that it may be discerned from the present covenant, as a matter of law, that the restriction upon the usage of “Bernard Ress Company” was not intended to survive the owner, Bernard Ress?

A trade name, like a trademark, identifies the business in connection with which it is used. Stork Restaurant, Inc. v. Marcus, 36 F.Supp. 90 (E.D.Pa.1941). While a trademark is applicable to the vendable commodity to which it is affixed, a trade name applies to the business concern itself, and its goodwill. Gamlen Chemical Co. v. Gamlen, 79 F.Supp. 622 (W.D.Pa.1948). Hence, while a trade name may not be registered, or may be incapable of being registered, as a trademark, it is nonetheless entitled to protection against infringement under the law of unfair competition, where it has become recognized by the general public as identifying certain products, groups, services, or goodwill of a particular business concern. U.S. Jaycees and Pa. Junior Chamber of Commerce v. Philadelphia Jaycees, 490 F.Supp. 688 (E.D.Pa.1979); Gamlen, supra.; Thompson-Porcelite Co. v. Harad, 356 Pa. 121, 51 A.2d 605, 606 (1947). Such an appurtenance to trade is a property right in the sense that the right to one’s trade free from interference by others is a property right. Stork, supra.

Moreover, it is generally recognized today that the emphasis in cases concerning trademarks, trade names, and unfair competition is no longer on competition itself, but rather on the injury suffered by the plaintiff and the public. Use of trademarks and trade names by third parties has been restrained in connection with wow-competing businesses, where it is clear that the third party defendant is not diverting away custom and trade. Thomson-Porcelite, supra, 356 Pa. at 123, 51 A.2d at p. 607; Stork, supra; Great Atlantic and Pacific Tea Co. v. A & P Radio Stores, 20 F.Supp. 703 (E.D.Pa.1937). If the defendant’s acts have a tendency to confuse and deceive the public, he may be restrained. Thomson-Porcelite, supra. This is because the plaintiff, by such deception, may be damaged in ways other than the diversion of business. His business expansion may be forestalled; a false impression of a trade connection between the plaintiff and the defendant may be created which will later subject the plaintiff to liability or the embarrassment of litigation, or the loss of credit standing; or, purely and simply, his reputation may be tarnished by the use of his mark or name in connection with inferior goods or services over which he has no quality control. A & P Radio Stores, supra. The defendant, if not restrained, will have secured the goodwill attached to the plaintiff’s business, while potentially visiting ill repute upon the plaintiff’s name. Stork, supra.

Returning, then, to the instant trade name restriction, we cannot find as a matter of law that it is inherently unreasonable, unnatural, or improbable that Bernard Ress intended the covenant to survive his death.

Clearly, as may be discerned from the contract itself, a fear of competition was not the motivation for the covenant. Indeed, in the paragraph following the restrictive covenant, Ress promised not to compete in any way “directly or indirectly” with the new business bearing his trade name for a period of two years; moreover, he did not reserve to himself a right to revoke appellees’ right to the trade name in the event he chose to re-enter the restaurant supply and equipment business, but, rather, reserved only a right of revocation in the event appellees conveyed to “any other party” the controlling interest in the new company bearing his trade name. These factors, when viewed against the background of trade name law, as discussed above, tend toward one conclusion: the purpose of the restriction was the protection of the trade name from any tarnish, embarrassment, or ill repute that might befall it should a business bearing that name ever fall into the hands of someone other than his trusted former employees, the named appellees. Furthermore, the use of such phrases in the subject clause as “may not transfer or assign this right to any party” and “at any time after the date of this agreement” could be said to suggest that Ress was not only concerned with his reputation for his lifetime, but in perpetuity as well.

Additionally, we do not believe it reasonable to assume outright that this concern with reputation would be personal or peculiar to the decedent alone. It would also be reasonable, natural, and probable to assume that one’s family has an interest in ensuring that a family trade name does not become connected with embarrassing litigation, 'a loss of credit, or the ridicule and scorn that accompanies the association by the public of a name with inferior goods or services.

As such, we now hold that the trial court acted prematurely in determining the instant covenant to be unenforceable as a matter of law, and in dismissing appellants’ complaint. While it may be factually determined at a later stage in the proceedings that Bernard Ress did not intend the restriction on his trade name to survive him, the subject clause is sufficiently ambiguous on this point, and we do not believe the interpretation suggested by appellants to be precluded as a matter of law. Rather, we believe appellants are entitled to produce evidence in support of the requested construction.

This, however, brings us to the next two contentions raised on appeal, which invoke the following question: who has the capacity to sue in order to attempt enforcement of the covenant? Appellees maintain that, in the event the restriction survives Bernard Ress, the only party with standing to sue is Bernard Ress’s personal representative, and, as Sadye Ress is not pled in the complaint in that capacity, the trial court was correct in dismissing the action. Appellants counter that: (1) Sadye and Sanford Ress have standing to sue as heirs of the estate, both pursuant to the contract and under common law; and (2) even assuming that only Sadye Ress, as the representative, would have standing, the trial court should have permitted amendment of the complaint to plead Sadye Ress’s capacity as representative.

As the parties do not dispute, and the law confirms, that the restrictive covenant may be enforced by the personal representative of Bernard Ress, see Unit Vending-, supra and Stormer, supra, we reserve discussion of the failure to plead Sadye’s capacity as the personal representative pending resolution of the more complicated question: do the heirs of Bernard Ress have standing to sue?

The general rule is that a party in an equity action has standing, and is indispensable, when he has such an interest that a decree cannot be entered without affecting, and potentially impairing his rights. Mechanicsburg Area S.D. v. Kline, 494 Pa. 476, 481, 431 A.2d 953, 956 (1981).

As noted in the discussion of Issue 1, the enforceability of the covenant following Ress’s death, it cannot be presumed, at this early stage of the litigation, that the only concern on the part of Ress was the protection of his reputation during his lifetime; rather, due to the ambiguity of the subject restriction, it is equally possible that Ress intended that the name be protected in perpetuity for the benefit of his memory, as well as to protect his heirs from the embarrassing litigation, a loss of credit, and any ridicule or scorn that could arise from the usurpation of the family name by an inferior business concern. Hence, it cannot be said that the heirs of Bernard Ress do not have an interest, pursuant to the contractual restriction, that will not be impaired if they are denied their day in court. We are thus loathe to deny them standing to sue sheerly on the basis of their lack of privity to the contract.

However, with respect to the standing question, appellees have made several arguments pertaining to deficiencies in the complaint, which are well taken by this Court. As noted previously, appellants’ complaint fails to plead Sadye Ress’s capacity as the personal representative of the estate of her late husband. Additionally, the complaint fails to state whether Sadye and Sanford Ress are the only heirs of Bernard Ress; if, indeed, the heirs have a justiciable claim pursuant to the covenant, all heirs are indispensable parties, and, under Pa.R.C.P. 1032(2), must be joined to prevent dismissal of the action. Finally, at no point does the complaint allege with specificity that the harm in which the heirs and representative have a material interest in preventing, has occurred: that is, the complaint does not allege that the appellee-employees no longer own 51% of the outstanding stock in the new B.J. Ress Co., Inc.

However, as noted above, where the law may permit a recovery under some theory, leave to amend should be liberally granted. Clearly, the subject complaint, upon remand, should be amended to address appellees well-taken objections.

As such, we conclude that, pursuant to the contract, Sadye and Sanford Ress have standing to sue, as heirs of the estate, and pursuant to Sadye’s capacity as the personal representative of the estate. As such, appellants should be permitted to amend the complaint to establish: (1) Sadye’s capacity as the personal representative; (2) that Sadye and Sanford are the sole heirs of Bernard Ress; and (3) the nature of the material interest which has been harmed, and thereby conveys standing to sue.

Appellants’ fourth and final contention is that, even in the absence of a right to enforce the restrictive covenant in the contract, appellants have a common law cause of action permitting them to enjoin the use of the family trade name. We do not resolve whether such a common law right exists, but hold only that the existence of the restrictive covenant limits appellants to a cause of action on the contract itself.

It is old, settled law that persons may alter by express agreement the legal relationship they would normally have had by operation of law. See Germantown Trust Co. v. Stanley Co. of America, 338 Pa. 533, 13 A.2d 406, 408 (1940). That is not to say that a contract phrase, if susceptible of two interpretations, is not to be construed in accordance with the common law, where consistent with the apparent intention of the parties, for it is assumed that parties contract with knowledge of the existing law. Harding v. Pa. Mut. Life Ins. Co., 171 Pa.Super. 236, 90 A.2d 589, 597 (1952), aff'd, 373 Pa. 270, 95 A.2d 221, cert. denied, 346 U.S. 812, 74 S.Ct. 21, 98 L.Ed. 340 (1953). However, where the parties have chosen to address a particular aspect of their legal relationship by contract, it is the writing itself that is to determine the rights and liabilities of the parties. Giant Markets v. Sigma Marketing Systems, 313 Pa.Super. 115, 459 A.2d 765, 769 (1983).

In the matter sub judice, the parties to the contract chose to address, in writing, the nature of their legal relations pertaining to the usage of the trade name “Bernard Ress Company”. We must assume, therefore, that the parties intended the restrictive covenant to embody their agreement as to its usage, and this Court would deem it inappropriate to find a common law cause of action in appellants where the original parties intended their relations to be governed on this point by a written contract.

In light of the foregoing, we now enter the following order. We vacate the order of December 2, 1987, which dismissed appellants’ complaint, and enter an order granting appellants leave to amend their complaint within thirty (30) days from the date of the order to plead: (1) the capacity of Sadye Ress as the personal representative of the estate of Bernard Ress; (2) that Sadye and Sanford Ress are the sole heirs and assigns of Bernard Ress, or, in the alternative, the names of all heirs and assigns to Bernard Ress; and (3) the nature of the material interest of the plaintiffs which has been harmed by the named defendants.

Order vacated and case remanded. Jurisdiction relinquished.

JOHNSON, J., did not participate in the disposition of this case.

      . The construction of documents such as written contracts is a proper subject for declaratory and injunctive relief. See Madden v. National Association of Basketball Referees, 359 Pa.Super. 206, 518 A.2d 853, 854 (1986); New London Oil Co., Inc. v. Ziegler, 336 Pa.Super. 380, 485 A.2d 1131, 1133 (1984). Hence, the interpretation of the contract, and specifically of the restrictive covenant, was properly before the court.

      . For reasons we shall discuss infra pertaining to Issue 4, we decline to decide whether the heirs would have standing to sue wholly apart from the instant contract.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    548 A.2d 1266
    Albert F. MAIER and Albert F. Maier, Jr., Executors of the Estate of Walter J. Sudu, a/k/a Walter Sudu, Deceased, v. Earl L. HENNING, Gunnar M. Henning and Maynard W. Henning, Trading as GEM Properties, and Joseph Sudu, Stanley Sudu and Anna Perez. Appeal of Joseph SUDU, Stanley Sudu and Anna Perez. Albert F. MAIER and Albert F. Maier, Jr., Executors of the Estate of Walter J. Sudu, a/k/a Walter Sudu, Deceased, Appellants, v. Earl L. HENNING, Gunnar M. Henning and Maynard W. Henning, Trading as GEM Properties, and Joseph Sudu, Stanley Sudu and Anna Perez.
    Superior Court of Pennsylvania.
    Argued Feb. 3, 1988.
    Filed Oct. 12, 1988.

      Harry A. Jacobowitz, Palmerton, for appellants (at 2488) and appellees (at 2526).
    Roger N. Nanovic, II, Jim Thorpe, for appellants (at 2526) and appellees (at 2488).
    Patricia Carroll, Blue Bell, and Edward J. Hayes, Philadelphia, for appellees (at 2488 and 2526).
    Before BECK, KELLY and JOHNSON, JJ.
   JOHNSON, Judge:

This is a consolidated appeal from summary judgment which the Orphans’ Court Division of the Court of Common Pleas of Carbon County granted in a declaratory judgment action.

We are asked to determine whether a general power of sale clause contained in a will may override an express limitation upon sale found in the Probate, Estates and Fiduciaries Code (the Code). We are also asked to determine whether the failure to object to a petition to sell real estate at private sale may constitute a statutory joinder on the part of a specific devisee under a will. Since we find the language of Section 3351 of the Code to be both clear and free from doubt, and since we are unaware of any other provisions permitting the divestiture of specifically devised real estate, we reverse.

On May 19, 1980, Walter Sudu (the “Decedent”), died testate. Albert F. Maier and Albert F. Maier, Jr., (the “Executors”), were appointed Executors of the Decedent’s Estate by the Carbon County Register of Wills on May 27, 1980.

The Decedent’s Estate included a 17.1 acre parcel of property known as the “Hickory Run Plaza” (truck stop) leased to Interstate Traveler Services, Inc., since 1974. Included in the lease, and operated as an integrated unit with the truck stop, were four surrounding properties: (1) a 1.99 acre tract with a sewage treatment plant; (2) a 50 foot by 50 foot tract which was used for a high rise sign; and (3) two parcels containing easements from the truck stop to the sewage treatment plant and high rise sign location. These four parcels of property are the subject of this litigation. The truck stop together with the four surrounding properties were specifically devised by the Decedent in his will to Stanley Sudu, Joseph Sudu and Anna Perez (the “Devi-sees”).

On October 29, 1981, the Executors presented to the Orphans’ Court for Carbon County a Petition for Leave to Sell at Private Sale (the “Petition”) certain specifically described real estate to Earl L. Henning, his heirs and assigns (the “Hennings”). This Petition was presented under Section 3351 of the Code. Included within the perimeter of the legal description for the property to be conveyed to the Hennings were the four parcels of real estate at issue in this litigation. Both the Petition, and the subsequent deed to the Hennings, (ie. Earl L. Henning, Gunnar M. Henning and Maynard W. Henning, t/a GEM Properties) provided that the conveyance was under and subject, inter alia, to all restrictions, exceptions, convenants and conditions as contained in prior documents in the chain of title.

Prior notice of intention to present the Petition for Leave to Sell at Private Sale, including a copy of the Petition, was served on the Devisees’ attorney by certified mail, return receipt requested. The attorney representing the Devisees in the estate proceedings had previously filed on December 19,1980, a Petition for Citation Why an Account Should Not be Filed by the Executors, and on June 4, 1981, a Petition for an Order to Compel the Executors to Distribute Income from Specifically Devised Property. Further, the Petition for Leave to Sell at Private Sale specifically identified each of the Devisees as interested parties under the will.

No objections to the intended private sale by the Executors to the Hennings were voiced by the Devisees. The Orphans’ Court by decree dated October 29, 1981, approved the proposed sale. Subsequently, by deed dated January 22, 1982, and recorded in Carbon County the Executors conveyed the property described in the Petition and Court Decree to the Hennings.

In dispute in this litigation is the fee simple ownership of the sewage treatment plant, the high rise sign location, and the two access easements to these locations. The Hennings claim ownership of these tracts pursuant to the Executors’ Deed and Court confirmation. The Devisees claim fee ownership of these tracts pursuant to the will and the aforesaid specific devise.

To resolve this dispute and proceed with the orderly distribution of the estate, the Executors filed an Action for Declaratory Judgment. Following the close of the pleadings, a Motion for Summary Judgment was filed by the Executors. This Motion was granted by the Court, which found fee simple ownership of the disputed parcels to be in the Hennings under and subject to the lease with Interstate Traveler Services, Inc. In reaching this conclusion the Court held that the Devisees by their inaction and failure to object to the Petition for Leave to Sell at Private Sale had acquiesced and joined in such sale in accordance with the provisions of Section 3351 of the Probate, Estates and Fiduciaries Code, 20 Pa.C.S. § 3351. Timely Notices of Appeal from the Court’s Order were separately filed by the Executors and the Devisees. The appeals have been consolidated by stipulation.

Before summary judgment may be entered, the case must be clear and free from doubt, the moving party must prove that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Pa.R.Civ.P. 1035; Pennsylvania Gas & Water Co. v. Nenna & Frain, Inc., 320 Pa.Super. 291, 467 A.2d 330 (1983). The parties agree that there are no material questions of fact. Consequently, in reviewing the orphan’s court summary judgment, we determine whether the court committed an error of law. Id.

It is clear from the will that the testator intended to convey a fee simple interest in the real estate set forth in Paragraph 4 of the will, and not just an easement right. In pertinent part the will provides:

It is to be understood that this specific devise includes not only the above 17.1 acres, but also all those parcels set forth as Exhibits B, C and D, attached to the Agreement of Lease above described, and also the 40-foot right-of-way to the high rise sign as shown in red on Exhibit A, attached to said Agreement of Lease.

It is also clear that the legal title passed at the Decedent’s death on May 19, 1980 to the Devisees, subject only to the lawful powers of the personal representatives, the Executors and all orders of the court. 20 Pa.C.S. § 301.

Unless the Petition for Leave to Sell Real Estate, presented on October 29, 1981, could operate to divest the Devisees of their already acquired interest under the will, the deed of January 22, 1982 from the Executors to the Hennings could only transfer that property not already included in the specific devise. We are persuaded that no divesture occurred.

We begin our analysis by eliminating any consideration of a judicial sale under Section 3353 of the Code, 20 Pa.C.S. § 3353. The petition contains no averment that it is advisable that the sale have the effect of a judicial sale. Equally important, the decree of court signed on October 29, 1981 in response to Count III of the Petition does not contain a finding that the proposed sale is “desirable for the proper administration and distribution of the estate.” 20 Pa.C.S. § 3353. Nor could the Court have so found, given the large number of real estate parcels remaining under the residuary clause and the other significant assets remaining in the estate not specifically bequeathed or devised.

Thus, the only possible statutory authority for an executor attempting to sell specifically devised real estate must be found in Section 3351 of the Code. That section, in its entirety, provides:

§ 3351. Power to sell
Except as otherwise provided by the will, if any, the personal representative may sell, at public or private sale, any personal property whether specifically bequeathed or not, and any real property not specifically devised, and with the joinder of the specific devisee real property specifically devised. When the personal representative has been required to give a bond, no proceeds of real estate, including proceeds arising by reason of involuntary conversion, shall be paid to him until the court has made an order excusing him from entering additional security or requiring additional security, and in the latter event, only after he has entered the additional security.

20 Pa.C.S. § 3351 (emphasis added).

On appeal, both the Devisees and the Executors argue that the Executors were without power to convey specifically devised real property to the Hennings unless the Devisees joined in the sale. We agree.

The relevant language of Section 3351 clearly requires the joinder of all specific devisees in order to permit the personal representative to sell real property specifically devised. This is nothing more than common sense. Without the joinder, the statute has not been followed and the sale is of no effect with regard to the devisees’ predetermined interests.

The trial court, in seeking to counter the Devisees’ argument that joinder did not occur, looks to the action of the Devisees, in seeking to compel the Executors to discharge their responsibility, as disposing of this claim. The trial court reasoned that the Devisees voluntarily became active parties in the case when they filed their petition for citation to file an account and, again, when they petitioned to compel distribution of estate income. We can agree with the trial court that the Devisees accepted the jurisdiction of the orphans’ court division by these acts without agreeing that jurisdiction equals joinder. Nor do we understand that a failure to respond to a petition for leave to sell real estate, pursuant to Orphans’ Court Rule 3.2, can satisfy the petitioner’s obligation under the statute to seek, and secure, joinder.

The trial court places partial reliance on Orphans’ Court Rule 3.2, 20 Pa.C.S. (1988 Supp., following § 794), which requires a party opposing the granting of the prayer of a petition to file an answer and specifically state objections thereto. The trial court found that since the Devisees took no action to object to the petition, their silence and inaction constituted consent and, therefore, joinder. There is no dispute that the Devisees had, at least, constructive notice that the Executors desired to convey certain parcels of real estate. Nevertheless, the power of the personal representatives to sell real property already specifically devised is found only in Section 3351 of the Code. That statutory power is neither enlarged nor diminished by the action or inaction of any party not in conformity therewith.

We find no way to escape or avoid the clear language of Section 3351 which couples the authority to sell specifically devised real estate with the joinder of the specific devisees. The trial court misstates the Devisees’ position when it declares that the Devisees argue that, without a joinder, the trial court did not have personal jurisdiction. Jurisdiction need not be disputed to resolve this case. Assuming jurisdiction, Section 3351 still requires joinder, an affirmative act.

The difficulty with the position of the Hennings is that they seemingly rely on the service of the petition upon counsel for the Devisees as establishing joinder through inaction. Neither the trial court nor the Hennings have cited to any law, nor are we aware of any, establishing a principle of joinder by inaction. The terms are oxymoronic.

Had the Executors intended to divest the Devisees of their fee simple interest in the subject properties, they could have petitioned the orphans’ court for approval of a sale pursuant to Section 3353 of the Code. This would have afforded an opportunity to consider, and resolve, the rights of the parties prior to any purported conveyance. It would also have required an express finding, by the court, that the sale was desirable for the proper administration and distributton of the estate. As we have already indicated, such a finding on the facts here involved would have been unlikely.

Where, as here, neither joinder nor an attempt at compelling joinder has occurred, we are constrained to conclude that the Devisees retained the same rights the day after the deed conveyance as they possessed the day before. Consequently, the Hennings take title under and subject to the rights vested in the Devisees as set forth in Paragraph 4 of the will. We conclude that the Hennings acquire no interest in property already devised under the will.

There is no dispute that a declaratory judgment action is one appropriate means to resolve this dispute. There is no dispute that there is no genuine issue as to any material fact.

For the reasons set forth above, we conclude that the trial court drew the wrong conclusions from the facts and that summary judgment in favor of the defendants Hennings was error. Summary judgment in favor of defendants Joseph Sudu, Stanley Sudu and Anna Perez is in order.

Accordingly, we reverse the order of the trial court, and remand for further proceedings consistent with the foregoing Opinion. Jurisdiction is relinquished.

      . Act of June 30, 1972, P.L. 508, No. 164, § 2, as amended, 20 Pa.C.S. § 101 et seq.

      . 20 Pa.C.S. § 3351.

      . On October 9, 1980 an original Inventory and Appraisement had been filed by the Maiers, showing numerous (over 20) parcels of real estate valued at $654,372 and personal property valued at $167,591.40. A Second Amended Inventory and Appraisement was filed on December 30, 1981, which adjusted the real property values to $522,250, and increased the personalty to $175,383.86.
      Petitions for Leave to Sell Real Estate at Private Sale were filed on June 24, 1981, August 17, 1981 and November 4, 1981. Both of the latter petitions sought leave to sell numerous properties from the estate. On this appeal, we are only concerned with the petition presented on October 29, 1981 and filed on November 4, 1981.


author: WIEAND, Judge: BECK, Judge,

text:
    548 A.2d 1270
    MarySusan VAN BUSKIRK, Appellee, v. Gary J. VAN BUSKIRK, Appellant.
    Superior Court of Pennsylvania.
    Argued April 6, 1988.
    Filed Oct. 14, 1988.

      David W. Skutnik, Stroudsburg, for appellant.
    Raymond P. Kashimba, Stroudsburg, for appellee.
    Before WIEAND, McEWEN and BECK, JJ.
   WIEAND, Judge:

In this divorce action, the trial court held that real estate, the record title to which was held by third persons who were not parties to the action, was marital property and directed that husband pay to wife a portion of the value thereof in exchange for a quitclaim deed conveying wife’s interest in the real estate to husband. Husband appealed. We reverse.

MarySusan and Gary Van Buskirk were married in 1972 and separated in 1982. One child, Jessica, was born of their marriage. MarySusan was employed as a retail sales clerk, and Gary was employed as a construction worker. The parties did not own real estate and had lived in rented properties throughout their marriage.

Gary’s parents, Roe and Jean Van Buskirk, owned a tract of land in Hamilton Township, Monroe County, on which their residence was located. The tract had been owned by the Van Buskirk family since 1925. In December, 1978, Roe and Jean Van Buskirk caused a deed to be prepared for 1.889 acres, a part of the larger tract on which their residence was situated, and named therein as grantees their son and daughter-in-law, Gary and MarySusan Van Bus-kirk. This deed was executed on December 29, 1978 in the office of a notary public, who also took the acknowledgement thereof. The deed, however, was not delivered; neither was it recorded. Instead, the deed was retained by the grantors. Roe Van Buskirk testified that he had not intended to deliver the deed unless and until his son and daughter-in-law, who were then experiencing marital difficulties, were able to get things “patched up” between them. He explained that the deed had been executed to give his son and daughter-in-law an expectation which would help solidify their marriage. Delivery was to occur in the future only if the younger Van Buskirks were able to stabilize their marriage.

Following the signing of the deed, Gary Van Buskirk, with assistance from his wife and parents, expended time, effort, and some money in constructing a partially completed residence on the lot. Most of the financing, however, was arranged by Roe and Jean Van Buskirk, who personally borrowed the necessary money. The loan was secured by a mortgage executed by the elder Van Buskirks and constituting a lien on the entire tract which they owned, including their residence, in Hamilton Township. Mortgage payments, including interest, were made by the elder Van Buskirks, who also paid taxes and the cost of insurance. The younger Van Buskirks, who occupied the partially completed dwelling, paid rent to Gary’s parents. When the marriage of the younger Van Buskirks deteriorated further, Roe Van Buskirk determined that he and his wife would not make a gift of the real estate and destroyed the deed.

The trial court held, despite the undisputed fact that the deed had not been delivered, that a completed gift of the real estate had nevertheless been made. Therefore, the court directed that Gary Van Buskirk pay one-half the equity in the partially completed residence ($18,066.78) to MarySusan Van Buskirk, who was directed to execute a quitclaim deed conveying her interest in the real estate to Gary Van Buskirk.

This was error. It is essential to the validity and effectiveness of a deed that there be a delivery of the deed. See: Fiore v. Fiore, 405 Pa. 303, 174 A.2d 858 (1961); Rynier’s Estate, 347 Pa. 471, 32 A.2d 736 (1943); In re Estate of Darlington, 364 Pa.Super. 75, 527 A.2d 159 (1987).

To make a valid gift there must have been not only an intention to make it but to do so at the time and not in the future, and it must be accompanied by an actual or constructive delivery to the donee by which the donor released all dominion over the property and invested the donee with full title to and control over the same.

Tradesmen’s Nat’l Bank & Trust Co. v. Forshey, 162 Pa.Super. 71, 73, 56 A.2d 329, 331 (1948) (quoting cases). See also: In re Rogan’s Estate, 404 Pa. 205, 212, 171 A.2d 177, 180 (1961) (intent of donor to make an immediate transfer is essential). “Since it is impossible to make manual delivery of real property, delivery of the deed of such property is necessary to render it legally operative and to convey title. The deed becomes operative when delivered with the intent that it become effective as a conveyance____” 12 P.L.E. Deeds § 41. “[A] sufficient delivery of a deed requires that there be a manifestation of the unequivocal intention of the grantor to relinquish all dominion and control over the instrument and to have it become presently effective as a transfer of title, so as to deprive the grantor of all authority over it or the right of recalling it____ There is no delivery in law where the grantor keeps the deed in his own possession with the intention of retaining it, particularly if he keeps possession of the property as well.” 23 Am.Jur.2d Deeds § 131.

In the instant case, not only was the deed not delivered, but the elder Van Buskirks retained dominion over the instrument and the real estate. They used the land as security for money which they borrowed; and they also continued to pay taxes on the land and kept insured the improvements thereon.

Moreover, if the elder Van Buskirks were to have their record title defeated in this marital action, it was essential, at the very least, that they be made parties to the action. Provision therefor has been made in Pa.R.C.P. 1920.34. Without such joinder, the trial court was powerless to construct a trust or otherwise divest the grantors of their title and vest it in their son and daughter-in-law. The note to Pa.R.C.P. 1920.34 makes this patently clear when it states that “[t]he joinder of persons other than husband and wife may be essential ... where persons other than the parties have an interest in property which is the subject matter of a distribution.” See also: 1 Pa.Matr.Prac. Jurisdiction § 13:5.1; Wolf v. Wolf, 356 Pa.Super. 365, 514 A.2d 901 (1986) (trial court may declare resulting trust where record owners of real estate have been joined in matrimonial action).

The trial court, in this case, attempted to deprive the elder Van Buskirks of the title to their real estate without their having been joined as parties to the divorce action. At the very least, the court has thereby created a cloud on their title which, if not removed, will impair the marketability of the land. This was an abuse of discretion and clearly erroneous.

If unreversed, the trial court’s order will also have unfair consequences for Gary Van Buskirk, the husband-appellant. He does not have title to the real estate which the trial court determined to be marital property. At best, he may have a possible action in equity against his parents to impose a constructive trust on the real estate. Whether he can produce evidence in addition to that appearing in the record of the divorce action which will enable him to pursue such an action successfully is entirely speculative. In the meantime, because he does not own the real estate, Gary Van Buskirk can neither sell the real estate nor use it as security for a loan to raise the sum of $18,066.78 which he has been directed to pay to his wife. The record demonstrates that Gary Van Buskirk, a construction worker, does not otherwise have assets which will enable him to pay this sum of $18,066.78 to his wife. The Divorce Code does not authorize courts, under the guise of equitable distribution, to impose an order to pay money which a party does not have the ability to pay. Miller v. Miller, 352 Pa.Super. 432, 443-444, 508 A.2d 550, 556 (1986).

Not only does the record fail to show that the husband can pay the amount which he has been directed to pay, but it also is uncertain, as we have observed, that he will ever be able to acquire title to the real estate which the trial court has held to be marital property. If he should find a way to raise the money which the court has directed him to pay, he still will not have title to the real estate. He will have nothing but an undetermined and speculative claim which he may be able to assert in a court of equity. Under the circumstances demonstrated by the record in this case, it is doubtful that he will be successful in wresting title from his parents in a future action. To place the entire risk of such an action upon appellant, under the circumstances of this case, was a manifest abuse of discretion.

On the record reviewed by this Court, the trial court’s finding that the 1.889 acre tract in Hamilton Township was marital property is unsupported. The record title to that real estate is held by third persons who have not been joined as parties in the present action. To require the husband-appellant to pay one-half of the difference between the value of such real estate and the unpaid balance of a mortgage thereon executed and delivered by the third party owners was error.

The order of the trial court is modified by vacating the second paragraph thereof which directed Gary J. Van Bus-kirk to pay the sum of $18,066.78 to MarySusan Van Buskirk, who was directed to execute a quitclaim deed for a 1.889 acre tract in Hamilton Township, Monroe County.

BECK, J., files a dissenting opinion.

BECK, Judge,

dissenting:

The sole issue in dispute in this divorce case is whether a parcel of real estate improved with a home is marital property subject to equitable distribution. The trial court held that the property was marital. I would affirm.

Section 401(e) of the Divorce Code, Pa.Stat.Ann. tit. 23, § 401(e) (Purdon Supp.1987), provides that real property acquired by either party during the marriage is presumed to be marital property. Husband contends that the real property at issue belongs to his parents and was never acquired by the parties. The trial court found that the property was acquired by the parties and therefore marital property subject to equitable distribution. I review this determination under an abuse of discretion standard. Johnson v. Johnson, 365 Pa.Super. 409, 529 A.2d 1123 (1987).

Husband and wife were married in 1972 and separated in 1982. During their marriage, the parties lived in various rental properties with their daughter and intended to purchase a home. They finally accepted the repeated offers of husband’s parents to give them the vacant property adjoining the parents’ home. His parents arranged for a deed conveying the vacant 1.89 acres of real estate to the parties. His parents arranged to meet with the parties at a notary public on December 29, 1978, where the parents executed and acknowledged the deed conveying the real estate to husband and wife. At the time of the signing of the deed, the one dollar consideration in the deed actually passed hands between the parties and husband’s parents. The father retained possession of the deed. He never recorded it and finally destroyed it when the parties separated.

After execution of the deed, wife engaged a surveyor to obtain the approval of a subdivision. Thereafter, the parties invested time, money and effort in building a house on the property. The construction was financed by a fluctuating mortgage on the property in the parents’ name. During the period of their occupancy of the premises, his parents were responsible for all mortgage payments due. The parties paid to the parents monthly an amount equal to the mortgage payments due on the property. Wife trusted husband physically to make the monthly payments and thought he made them directly to the bank for a mortgage in the couple’s name. The trial court determined that the home had a net equity of $36,133.55, and calculated the equitable distribution based on this value. On appeal, husband contends that his parents never gifted the property to the couple.

The trial court cites Wolf v. Wolf, 356 Pa.Super. 365, 514 A.2d 901 (1986), although it recognized that Wolf is not applicable to the case sub judice. In Wolf, the husband’s parents purchased a home for the couple’s benefit. The parents took title to the home and arranged for financing it while the children occupied the home, improved it and paid for all expenses incident to ownership. This court in Wolf held that the facts warranted the imposition of a resulting trust in favor of the divorcing couple, only after determining that the court had jurisdiction under Pa.Stat.Ann. tit. 23, § 301(a)(5). This subsection provides that the court has jurisdiction in cases of divorce over “[a]ny other matters pertaining to such ... divorce ... authorized by law and which fairly and expeditiously may be determined and disposed of in such action.” (emphasis added). In Wolf, the parents were additional parties and were afforded the same protections they would have had if the divorcing couple had brought a claim for resulting trust and unjust enrichment. In the case sub judice, the parents were not joined as additional parties. Therefore the theory of a resulting trust based on Wolf is not applicable.

The trial court found that the real estate was marital property on the rationale that the parents made an inter vivos gift of the real property. I agree. The criteria necessary to show an intervivos gift of real property were recently summarized in In re Estate of Darlington, 364 Pa.Super. 75, 78, 527 A.2d 159, 160 (1987):

In order to effectuate an intervivos gift, there must be evidence of an intention to make a gift and a delivery, actual or constructive, of a nature sufficient not only to divest the owner of all dominion over the property, but also invest the donee with complete control over the subject matter of the gift.

Husband argues that there was no showing of his parents’ intent to divest themselves of all dominion over the real estate and to invest the parties with complete control over the property.

The deed was prepared, executed, acknowledged but never physically delivered or recorded. The record reveals that the parents as donors intended to gift the property to the parties. The parents executed the deed before a notary public and in the presence of the parties. If the deed had been delivered, there would have been no question that title vested in the parties as donees. City Stores Co. v. Philadelphia, 376 Pa. 482, 103 A.2d 664 (1954). Therefore, my review focuses on whether there is sufficient evidence of actual or constructive delivery of the deed, the one requirement remaining in order to complete the gift and vest title in the parties.

The majority states that it is an undisputed fact that the deed had not been delivered. On the contrary, wife argues and the trial court held implicitly that there was constructive delivery. Delivery may be inferred from the circumstances; it may be accomplished by words alone, by acts, or by both, and it is not necessary that actual manual delivery be proved. City Stores Co. v. Philadelphia, supra, Abraham v. Mihalich, 330 Pa.Super. 378, 479 A.2d 601 (1984). Delivery depends on the grantor’s intention at the time the alleged gift is made as shown by his words, actions and the circumstances surrounding the transaction. Abraham v. Mihalich, supra. Whether there was constructive delivery is a question to be determined by the finder of fact. Darlington, supra.

The record is replete with indications that the parents intended to make a gift. The record is also replete with evidence that the parents and the parties treated the real estate as marital property. The husband and wife occupied and improved the property. They made monthly payments equivalent to mortgage payments. The father testified that no gift was intended. However, the master specifically found that the father’s testimony was contradictory and unreliable. The trial court accepted the master’s conclusion that the parents gifted the real property to the younger Van Buskirks and held that it was supported by the record. My review of the record reveals no abuse of discretion in this regard. The trial court having concluded that the real estate was marital property implicitly found that constructive delivery was accomplished. From the record as a whole it was reasonable for the trial court to infer that constructive delivery had taken place and that the father retained the deed for some other purpose, such as recording it.

Rather than consider whether the record supports the equitable distribution order of the trial court, the majority is apparently reviewing the record to find support for its own findings of fact. In so doing, the majority is inappropriately judging credibility, acting as fact finder, and finding facts contrary to those adopted below. For example, the majority relies on portions of the father’s testimony to characterize the parents’ intent not to make a gift of the real estate. Yet, the master specifically noted that this testimony was unreliable. The majority also refers to the younger Van Buskirks’ payments of rent, whereas the record reveals that the characterization of these payments to the parents is clearly disputed. Moreover, the portions of the record upon which the majority relies contradict the remainder of the record which is sufficient to support the trial court’s findings about constructive delivery and the parents’ intent to make a gift. The majority fails to apply the proper standard of review.

The majority’s willingness to become the finder of fact even extends beyond the sole issue before this court on appeal: the characterization of the real estate as marital property. In its eagerness to bolster the record in support of its holding, the majority addresses an issue which the parties have not raised: the husband’s ability to pay the equitable distribution award.

The majority sua sponte enters an area of the law which the parties have neither implicitly or explicitly raised; i.e. whether the husband has the ability to pay the equitable distribution order. The majority’s discussion of this issue is dicta. It cites Miller v. Miller, 352 Pa.Super. 432, 508 A.2d 550 (1986), which finds an abuse of discretion in requiring a spouse to pay moneys which he could not reasonably be expected to acquire or borrow. The majority ignores Morschhauser v. Morschhauser, 357 Pa.Super. 339, 516 A.2d 10 (1986), which refined the holding in Miller, and does not support the majority’s conclusion in the case sub judice. In Morschhauser the Superior Court affirmed the trial court’s requiring payment of an equitable distribution award based on the rationale that the husband could produce part of the sum from his annual income and that he could borrow the remainder. It has never been the law in Pennsylvania, and it would be indeed unfortunate if Pennsylvania adopted the proposition, that an award of equitable distribution is dependent on the spouse’s immediate ability to pay.

In the case sub judice the majority cannot justify its conclusion that the husband does not have the ability to pay because the trial court did not consider the issue. The majority takes bits and pieces from a record which do not directly address this issue (because it was not raised) and weaves a scenario the accuracy for which it cannot vouch. To make matters worse, the majority ignores a salient finding in the record which would weigh against its conclusion. The finding is that in the future the husband would have opportunities to increase his accumulation of assets and to increase his earnings. Most pointedly, there is no testimony of record that the husband did not have resources available to satisfy the award, such as a loan from a bank or his parents. Even if the husband could not make immediate payment of the award, it is up to the fact finder to determine if he has the ability to pay out an award of equitable distribution over a period of time. The record is a blank on this issue. The majority’s conclusion is speculative. The Morschhauser court realistically noted that a spouse’s ability to pay out of earnings as well as to borrow are proper considerations for the trial court in awarding equitable distribution.

Since husband in the case sub judice has never argued that he is not able to pay the equitable distribution, he cannot be expected to have presented evidence in support of an argument first asserted by the majority in this court. Since the record does not even include his income after 1982 or his current living expenses, the finder of fact never had the opportunity to evaluate such data. Given the state of the record and this court’s standard of review, I cannot find support for the majority’s finding that the record demonstrates husband’s inability to pay the award. I underscore that the majority’s discussion of ability to pay is dicta.

I would affirm the trial court.

      . Although the Master recommended that Roe Van Buskirk’s explanation for non-delivery of the deed be found "contradictory and not believable,” the trial court did not make such a finding. Even if the witness’s explanation were to be rejected, however, it would not alter the undisputed fact that the deed had not been physically delivered.

      . The author of the dissenting opinion argues that there was a constructive delivery of the deed. However, there is no evidence to support this argument. Not only was the deed not recorded, but it was never placed within the control of the grantees. Instead, the grantors continually retained the deed and exercised dominion over it.


author: BECK, Judge:

text:
    548 A.2d 1276
    Clare LYNCH, Appellant, v. McSTOME AND LINCOLN PLAZA ASSOCIATES and Montgomery Elevator Company and General Elevator Company.
    Superior Court of Pennsylvania.
    Argued April 6, 1988.
    Filed Oct. 13, 1988.

      Gerry Woods, Philadelphia, for appellant.
    Fred J. Silverman, Willow Grove, for McStome, appellee.
    William V. Coleman, Philadelphia, for Montgomery, appellee.
    Arthur R. Tilson, Ambler, for General, appellee.
    Before WIEAND, HOFFMAN and BECK, JJ.
   BECK, Judge:

Plaintiff-appellant, Clare Lynch, sued McStome and Lincoln Plaza Associates, Montgomery Elevator Company and General Elevator Company, Inc. on negligence grounds for injuries she received at Oxford Valley Mall when the escalator upon which she was riding allegedly came to a sudden and abrupt stop. Plaintiff did not assert a strict liability claim against any of the defendants.

The escalator was manufactured by Montgomery Elevator Company (hereinafter “Montgomery”) in 1973. In that same year, the escalator was purchased by McStome and Lincoln Plaza Associates (hereinafter “the Mall”) and installed at the Oxford Valley Mall owned by them. The escalator has been maintained by General Elevator Company (hereinafter “General”), since the date of installation. The incident in question occurred on June 26, 1982.

On August 6, 1986, a jury returned a verdict in favor of the defendants. The jury found that Montgomery was not negligent and that the Mall and General were negligent but their negligence was not a substantial factor in bringing about the plaintiffs harm.

On August 15, 1986, appellant filed timely post-trial motions seeking a new trial. Thereafter, in March 1987, appellant sought leave to file additional reasons in support of her post-trial motions pursuant to Montgomery County Local Rule 252. By order dated July 27, 1987, the trial court denied appellant’s August 15, 1986 post-trial motions and denied appellant leave to file additional reasons in support thereof. Judgment was entered on the jury’s verdict on August 7, 1987.

Appellant filed two appeals. The first, appeal No. 2409 Phi. 1987, is from the judgment entered against appellant on August 7, 1987. The second, appeal No. 2410 Phi. 1987, is from the trial court’s July 27, 1987 order denying appellant leave to file additional reasons in support of her post-trial motions.

In these appeals, appellant raises the following issues:

1. Did the trial court err in refusing to admit evidence of:

(a) the submission to Montgomery, after manufacture of the subject escalator and before appellant’s accident, of reports of accidents allegedly involving abrupt stopping by other escalators; and
(b) Montgomery’s failure, after manufacture of the subject escalator and before appellant’s accident, to conduct or consult safety studies regarding the escalator.
(c) any other evidence of negligent conduct by Montgomery after manufacture of the escalator and before appellant’s accident.

2. Did the trial court err in admitting into evidence videotapes produced by Montgomery?

3. Did the trial court err in refusing appellant’s proposed point for charge on the doctrine of res ipsa loquitur as to the Mall and General?

4. Did the trial court err in charging the jury on the issue of the negligence of appellant?

5. Did the trial court err in charging the jury that it could draw an adverse inference if it determined that appellant’s expert witness, Lester Moskowitz, did not satisfactorily explain his failure to produce a videotape of the escalator stopping that he allegedly had made?

6. Did the trial court err in denying appellant’s motion to file additional reasons in support of her motion for a new trial under Montgomery County Local Rule 252?

As to issues two through five, we have reviewed the record, briefs and arguments of counsel, and find no ground for the grant of a new trial. As to issue number six, we agree with the trial court’s analysis and application of Montgomery County Local Rule 252 to the instant case. Thus, as to all of these issues, we affirm on the basis of the excellent trial court opinion, authored by Judge Yohn of the Montgomery County Court of Common Pleas.

Issue number one, however, raises interesting questions not previously addressed in Pennsylvania law which merit further analysis. As the issue is phrased in appellant’s brief, appellant seeks a new trial on the ground that the trial court erred in refusing to admit against Montgomery certain evidence concerning the period after the manufacture and sale of the escalator in 1973 and before appellant’s accident in 1982. The specific evidence in question, as described at trial and in appellant’s brief, was:

(a) a portion of a computer printout that was produced by Montgomery and that listed reports to Montgomery of escalators that had stopped abruptly in the period after manufacture and before the instant accident. The reports provide no information as to why the escalator had stopped and do not indicate who was the manufacturer of the escalator involved. None of the reports concerned the escalator involved in this case.
(b) Evidence that Montgomery failed to perform or consult safety studies concerning the escalator after the date of manufacture.
(c) Evidence that it was possible to retrofit the escalator involved in this case with a new braking system, the “DC shoe brake”, that would allegedly have allowed for a longer stopping distance.

It is unclear precisely how appellant wished to use this evidence at trial. That is, what did appellant wish to prove via the introduction of this evidence? The argument contained in appellant’s brief is not enlightening, but in oral argument at trial, appellant’s counsel described his theory as follows:

The fact of the matter is, is there a duty? Okay.

What the duty is, the duty is to provide a reasonably safe escalator here. Okay? If in fact they use one brake system which is unsafe and then before the accident takes place commence to use another brake which affords a longer stopping distance, we’re contending that it’s a breach of their duty to passengers riding on escalators not to go back and notify customers, at least notify them that, that they could have a longer stopping distance on the brakes they manufacture all before the accidents take place.
My factual proof, Your Honor, is it was unsafe from the very beginning in 1973, continued to be unsafe until the date of the accident which again is the relevant date here, and then prior to the date of the accident, three years in fact prior to the date of the accident, ... Montgomery Elevator Company, ceased using a dings brake [the brake on the subject escalator] and used a brake that had a longer braking distance, the DC shoe brake.
We’re saying based upon that, based upon their knowledge that this is a shorter stopping distance brake, that in fact there were two other brakes that Montgomery had used prior to the date of the accident, they had a duty to warn, at least warn users of that escalator that in fact the brake could be retrofitted.

At a later point in the trial, counsel for appellant further addressed this theory. Counsel stated that Montgomery should be classified as a common carrier who owed the highest duty of care to plaintiff and that a post-manufacture and sale duty to retrofit or warn was part of this enhanced duty of care. Counsel also conceded, however, that if Montgomery were not considered a common carrier, its duty would “more or less cut off at either the time of manufacture or sale.” (N.T. July 30, 1986, at 61).

We shall consider the three categories of evidence in question seriatim.

The first item of evidence is the computer printout of reports of abrupt stopping by various escalators after the subject escalator was manufactured. We conclude, as did the trial court, that the printout was inadmissible because it was totally lacking in probative value on the issue of Montgomery’s exercise of due care, whether we measure Montgomery’s conduct as of the time of manufacture and sale or as of the time of appellant’s accident. As such, the evidence was not relevant. As our Supreme Court has recently stated:

Evidence is relevant if it tends to make the fact at issue more or less probable. Evidence is relevant if it in some degree is probative and advances the inquiry.

Commonwealth v. Gonzalez, 519 Pa. 116, 546 A.2d 26, 34 (1988) (citing Gregg v. Fisher, 377 Pa. 445, 105 A.2d 105 (1954); Bowers v. Garfield, 382 F.Supp. 503 (E.D.Pa.1974)).

Evidence concerning other incidents involving the instrumentality that allegedly caused plaintiff’s harm may be relevant to a number of issues. It may tend to show that the instrumentality was in fact unsafe or could cause the type of harm experienced by plaintiff or it may be admissible to show that the defendant had actual or constructive notice of a condition that may cause such harm. However, such evidence is only admissible when the evidence concerns incidents sufficiently similar to the incident involving the plaintiff which occurred under sufficiently similar circumstances. Whitman v. Riddell, 324 Pa.Super. 177, 471 A.2d 521 (1984); Cornell Drilling Co. v. Ford Motor Co., 241 Pa.Super. 129, 359 A.2d 822 (1976). A wide degree of latitude in the determination of whether such evidence should be admitted is vested in the trial court. Id.

In the instant case, the computer printout is no more than a several page list containing multiple entries. Each entry consists of a name, presumably of the person who experienced the reported escalator incident, a date, a code and case number, and a phrase like “escalator stopped abrupt” or “knocked down escalator”. There is no explanation of the significance of the code and case numbers, no indication if the escalator involved was even one that Montgomery had manufactured, and no explanation of the circumstances of or causes for the reported incidents. Moreover, at trial, counsel for appellant indicated that he had no witness who would supply such additional information.

Clearly the trial court did not abuse its discretion in excluding this evidence. This printout would have provided no useful information to the jury in assessing Montgomery’s conduct in manufacturing the escalator. Nor would the printout have provided any information from which the jury could reasonably have concluded that Montgomery was on notice after the sale of this escalator that the escalator was in some way malfunctioning or unsafe, thus giving rise to a post-sale duty to warn or retrofit. The reports simply do not provide sufficient information to allow a jury reasonably to consider them probative of the condition of this escalator or of what Montgomery knew of the condition of the escalator after it was sold. The only possible impact of the printout would be to prejudice the jury by impressing upon them that escalators do occasionally stop and that people do occasionally fall on escalators. The evidence was properly excluded.

We now turn to a consideration of the final two categories of evidence that appellant claims was improperly excluded. These categories basically comprise evidence that after the date of manufacture of this escalator and before appellant’s accident, there was a new DC shoe brake system affording a longer stopping distance available for installation on escalators, that Montgomery in fact used this system on some of the escalators it manufactured before appellant’s accident, and evidence of the efforts or lack thereof that Montgomery made to assess the safety of its escalators.

The trial court rejected the subject evidence in support of a post-manufacture duty to retrofit on two grounds, both of which are correct. First, as we have noted above, the trial court correctly concluded that appellant had largely hinged this argument on the assertion that Montgomery is a common carrier. The trial court then correctly concluded that Montgomery is not a common carrier. A common carrier is “one who holds himself out to the public as engaged in the business of transportation of persons or property from place to place for compensation, offering his services to the public generally.” Kelly v. General Electric Co., 110 F.Supp. 4, 6 (E.D.Pa.), aff'd, 204 F.2d 692 (3d Cir.), cert. denied, 346 U.S. 886, 74 S.Ct. 137, 98 L.Ed. 390 (1953); see also Merchants Parcel Delivery v. Pennsylvania Public Utility Commission, 150 Pa.Super. 120, 28 A.2d 340 (1942). The law is well settled in Pennsylvania that only owners/operators of common carriers are held to the highest degree of care. McGowan v. Devonshire Hall Apartments, 278 Pa.Super. 229, 238, 420 A.2d 514, 519 (1980); Gilbert v. Korvette’s, Inc., 457 Pa. 602, 606-07, 327 A.2d 94, 97 (1974). As Chief Justice Jones stated in his concurrence in Gilbert:

At no time ..., to my knowledge, held that the conduct of a manufacturer ... of an instrumentality which is a common carrier is .governed by the standard of the highest degree of care.

Gilbert, 457 Pa. at 622, 327 A.2d at 105 (Jones, C.J., concurring).

Thus Montgomery, as manufacturer of the escalator, is not governed by the standard of the highest degree of care but only by the ordinary standard of reasonable care.

Although we could end our analysis at this point by construing appellant’s argument to be totally dependent on Montgomery’s alleged status as a common carrier, in fairness to appellant we will construe her argument regarding a duty to retrofit broadly. We will proceed to analyze whether such a duty exists even assuming that Montgomery is held only to a standard of ordinary reasonable care under the circumstances. The question then becomes whether the exercise of reasonable care includes a post-sale warning or retrofit under the circumstances of this case. In other words, if the subject evidence had been admitted against Montgomery, could it have established that Montgomery was liable in negligence for failing to notify the Mall that a new escalator braking system allowing for a longer stopping distance had been discovered and/or for failing to put this new system on the subject escalator. We think not.

It is important to note that in this case, the precise question is not whether a manufacturer has a duty in negligence to warn existing owners of the manufacturer’s products when the manufacturer later discovers that his product poses a clear threat to the safety of users thereof, although the manufacturer was unaware that the product was unsafe when it was sold. Nor is this a case involving a product which, although state of the art, is inherently dangerous when sold and as to which there is a later technological breakthrough and a safe design is then discovered. We do not opine on the duties of a manufacturer in such cases. We also do not intimate any opinion concerning a manufacturer’s duties in strict liability, since appellant did not assert a strict liability cause of action against Montgomery.

In this case, appellant only sought to show that after the subject escalator had been manufactured and sold, a new brake system was discovered and used by Montgomery itself on its later produced escalators. Appellant did not offer evidence as to why Montgomery began using the alternative brake design. Appellant also attempted to demonstrate that the new system was safer in that it allegedly allowed for a longer stopping distance, i.e. would have reduced abrupt stops like the one that allegedly caused appellant’s accident. Finally, it would appear that appellant sought to show that Montgomery failed to “follow up” on the safety of the escalator by consulting or performing safety studies. Presumably appellant was attempting to convince the jury that even if Montgomery did not actually know of the relative safety of the subject escalator and escalators with the newly designed brake system, then Montgomery should have known.

We have already established that the evidence of alleged abrupt stopping incidents by escalators that appellant attempted to introduce, presumably to show that the escalator in this case was unsafe and that Montgomery had notice of this fact, was clearly inadmissible. Moreover, appellant did not produce any other evidence indicating that Montgomery knew or should have known, prior to appellant’s accident, that this escalator or similarly designed escalators were malfunctioning or unsafe. Finally, the jury found, based on ample evidence of record, that Montgomery had exercised due care in the manufacture of this escalator. In fact, the jury reached this conclusion despite the trial court’s admission of evidence that before Montgomery manufactured the instant escalator, Montgomery had manufactured escalators with a different brake system that afforded a longer stopping distance and despite the fact that Montgomery admitted to the feasibility of making escalators with longer stopping distances and admitted that escalators do sometimes stop and people do occasionally fall as a result.

Given the posture of this case, therefore, the precise question presented for decision is this — in a negligence product liability case, where the defendant manufacturer exercises reasonable care in producing a product which functions properly until the time of the accident in question and does not retain any post-sale responsibility for or control over its product, but where it is proven that at the time of the accident the manufacturer knew or should have known of an alternative design, which may be safer, is the manufacturer negligent if it does not retrofit its already sold products, or at least notify the owners of the product of the new design?

We are unaware of any Pennsylvania precedent that imposes such a broad duty on a manufacturer, nor do we think that the imposition of such a duty would be appropriate under established principles of negligence liability. As the Appellate Division of New Jersey aptly stated in the context of a highly similar case:

There is no duty upon the seller of a machine faultlessly designed and manufactured, such as this ..., to notify its customers after the time of sale of changes in the state of the art concerning the safe operation of such machine and advise them to install any new, updated or improved safeguards developed since the time of sale. Whether this claim, essentially one of failure to warn, is viewed as sounding in negligence, ... or strict liability, ... makes no difference.
3. We recognize that there are products liability cases from other jurisdictions which speak of a manufacturer’s or seller’s “continuing duty to warn.” ... Our review of these cases leads us to conclude that this phrase has been used most often to describe no more than the obligation imposed where a manufacturer or seller, believing that it has sold a non-defective product, subsequently learns that its product was, in fact, defective when placed in the stream of commerce. In these circumstances, saying that there is a “continuing duty to warn” is, of course, a tacit recognition that the duty existed in the first instance. Such an obligation is not at all synonymous, however, with the claim — made here by plaintiff — that where a product is free from all defects when sold, the seller, nevertheless, has a duty to monitor changes in technology and notions of safety and, either periodically or otherwise, notify its purchasers thereof. For where, as here, no initial duty to warn exists, none can be said to “continue”.

Jackson v. New Jersey Manufacturers Insur. Co., 166 N.J.Super. 448, 400 A.2d 81 at 89-90 and n. 3 (1979). See also Smith v. Firestone Tire and Rubber Company, 755 F.2d 129 (8th Cir.1985); Syrie v. Knoll International, 748 F.2d 304 (5th Cir.1984). Cf. Kozlowski v. John E. Smith’s Sons Co., 87 Wis.2d 882, 275 N.W.2d 915 (1979).

The clear effect of imposing such a duty would be to inhibit manufacturers from developing improved designs that in any way affect the safety of their products, since the manufacturer would then be subject to the onerous, and oftentimes impossible, duty of notifying each owner of the previously sold product that the new design is available for installation, despite the fact that the already sold products are, to the manufacturer’s knowledge, safe and functioning properly.

Moreover, in a case such as this, where at the time of the accident and for nine years prior thereto, the product in question was under the control of the Mall, and its service company, General, it is clearly more appropriate to impose a duty to insure that the product is functioning properly or to update the design of the product in the light of new technology on those parties, rather than on the manufacturer who relinquished control years ago.

Thus, we conclude that the trial court did not err in refusing to admit the subject evidence. Under the circumstances of this case, admission of the subject evidence could not have established that Montgomery breached any legally cognizable duty to plaintiff.

The judgment is affirmed.

      . Although appellant has filed two separate appeals, in actuality both appeals are properly construed as appeals from the August 7, 1987 judgment against appellant. Although appeal no. 2410 purports to be from the trial court’s July 27, 1987 order denying appellant leave to file additional reasons in support of its post-trial motions, this order was interlocutory and non-appealable until it was reduced to judgment on August 7, 1987. Thus, appeal no. 2410 properly relates to that judgment, as does appeal no. 2409, and we will therefore deal with this matter as a single consolidated appeal from the August 7, 1987 judgment.

      . We note that Judge Yohn’s opinion on this issue is equally thorough and, in our view, correct. We write separately because of the novelty and importance of the question presented.