author: CAVANAUGH, Judge: WIEAND, Judge, concurring and dissenting:

text:
    655 A.2d 597
    Sharon A. HAMMERSTEIN, Appellant, v. David LINDSAY, M.D. and The Williamsport Hospital.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1994.
    Filed March 14, 1995.

      David R. Bahl, Williamsport, for Williamsport Hosp., appellee.
    Before CAVANAUGH, WIEAND and SAYLOR, JJ.
   CAVANAUGH, Judge:

Sharon Hammerstein appeals from an order which granted appellee Williamsport Hospital’s (“the Hospital”) motion for judgment on the pleadings. We affirm.

A review of the factual averments of plaintiff/appellant’s complaint reveals the following. In February of 1992, appellant was employed as a unit clerk in the emergency room of the Hospital. While attending to her duties, she was approached by Dr. Lindsay, who requested that she make an “STD” (sexually transmitted disease) notation on a patient’s chart. Appellant stated that she would do so, but first proceeded to complete the project on which she was working. Dr. Lindsay, apparently angered at the failure of appellant to immediately comply with his request, picked up the patient’s chart and screamed, “I will do it myself.” Shortly thereafter, Dr. Lindsay passed by appellant’s work station and stated in a loud and harsh tone to appellant, “You are a worthless excuse for a secretary.” This comment was heard by both patients and members of the emergency room staff who were in the immediate vicinity. A short time later, Dr. Lindsay stated to a member of the emergency room staff, and in the presence of appellant, that appellant was “uncouth.” Appellant confronted Dr. Lindsay about his comments. Dr. Lindsay replied, “I want a new secretary.... Why don’t you leave, you’re worthless.” Appellant then reported this incident to members of the Hospital’s administration.

Approximately one week after this incident, appellant was again on duty in the emergency room. In response to a page by Dr. Lindsay, another doctor had called appellant’s station. Dr. Lindsay, however, failed to take the call. When the other doctor called again, Dr. Lindsay took the call and told the caller, “Sorry Ted, I have a rude, incompetent bitch for a secretary today.” Appellant then informed members of the Hospital’s administration of this more recent incident. A meeting then took place between Dr. Lindsay and a member of the Hospital administration. Appellant was not allowed to attend this meeting, but was subsequently informed that it had been decided that both Dr. Lindsay and appellant were mutually at fault, and that the matter had been resolved. Nonetheless, Dr. Lindsay continued to make derogatory comments about appellant: he questioned her competence and her ability to perform her duties in the presence of her coworkers; and he told another physician that she had a “personality disorder.” After a period of five months of continuous derogatory comments from Dr. Lindsay, appellant left her job with the Hospital.

On April 23, 1993, appellant filed suit against Dr. Lindsay and the Hospital. With respect to Dr. Lindsay, appellant alleged causes of action for slander/defamation and intentional infliction of emotional distress. As to the Hospital, she alleged that Dr. Lindsay was the agent of the Hospital, and therefore the Hospital was vicariously liable for Dr. Lindsay’s slanderous/defamatory comments, and also for the emotional distress he intentionally inflicted. Appellant also alleged that the Hospital was negligent in failing to supervise its employees, in failing to properly investigate the incidents which occurred between Dr. Lindsay and herself, and in failing to take appropriate steps to remedy this situation. The Hospital filed an answer and new matter, in which it alleged that appellant’s claims were barred by the exclusivity provision of the Workmen’s Compensation Act. After the pleadings were closed, the Hospital moved for judgment on the pleadings. Although there is no indication in the record that this motion was argued, or that appellant filed either a brief or any other type of response thereto, it appears that appellant’s position was that her cause of action fell within the personal animus exception to the exclusivity provision of the Workmen’s Compensation Act. The trial court granted the Hospital’s motion for judgment on the pleadings, specifically stating that the facts averred in appellant’s complaint did not fall within the personal animus exception to the Act. Appellant then filed this appeal, raising the following issue for our review:

Does the personal animus exception to the exclusive remedy provision of the Workmen’s Compensation Act allow an employee to bring a valid cause of action against her employer where she is injured by a co-worker and the injuries are not work-related?

When reviewing the grant of judgment on the pleadings, we employ the following standard:

A motion for judgment on the pleadings should be granted only where the pleadings demonstrate that no genuine issue of fact exists, and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1034; Giddings v. Tartler, 130 Pa.Cmwlth. 175, 177, 567 A.2d 766, 767 (1989). Thus, “[i]n reviewing a trial court’s decision to grant judgment on the pleadings, the scope of review of the appellate court is plenary; the reviewing court must determine if the action of the trial court was based on a clear error of law or whether there were facts disclosed by the pleadings which should properly go to the jury.” Vogel v. Berkley, 354 Pa.Super. 291, 296, 511 A.2d 878, 880 (1986), quoted in Keystone Automated Equip. v. Reliance, 369 Pa.Super. 472, 475, 535 A.2d 648, 649 (1988), alloc. den., 519 Pa. 654, 546 A.2d 59. An appellate court must accept as true all well-pleaded facts of the party against whom the motion is made, while considering against him only those facts which he specifically admits. Jones v. Travelers Inc. Co., 356 Pa.Super. 213, 217, 514 A.2d 576, 578 (1986); West Penn Administration, Inc. v. Pittsburgh National Bank, 289 Pa.Super. 460, 467, 433 A.2d 896, 900 (1981). Neither party can be deemed to have admitted either conclusions of law or unjustified inferences. Sinn v. Burd, 486 Pa. 146, 149, 404 A.2d 672, 674 (1979); Jones, supra, 356 Pa.Super. at 217, 514 A.2d at 578. Moreover, in conducting its inquiry, the court should confine itself to the pleadings themselves and any documents or exhibits properly attached to them. Jones, supra, at 217, 514 A.2d at 578; Gallo v. J.C. Penney Casualty Ins. Co., 328 Pa.Super. 267, 270, 476 A.2d 1322, 1324 (1984). It may not consider inadmissible evidence in determining a motion for judgment on the pleadings. 6 Pennsylvania Standard Practice 2d § 31:19 at 172. Only when the moving party’s case is clear and free from doubt such that a trial would prove fruitless will an appellate court affirm a motion for judgment on the pleadings. Jones, supra, 356 Pa.Super. at 217, 514 A.2d at 578; Gallo, supra, 328 Pa.Super. at 270, 476 A.2d at 1324.

Kelly v. Nationwide Ins. Co., 414 Pa.Super. 6, 9-10, 606 A.2d 470, 471-72 (1992).

In Kohler v. McCrory Stores, 532 Pa. 130, 615 A.2d 27 (1992), our supreme court described the personal animus exception and its relation to the Workmen’s Compensation Act. The court stated:

By virtue of the Compensation Act, an employee’s common law right to damages for injuries suffered in the course of his employment as a result of his employer’s negligence is completely surrendered in exchange for the exclusive statutory right of the employee to compensation for all such injuries, regardless of negligence, and the employer’s liability as a tortfeasor under the law of negligence for injuries to his employee is abrogated.
[Socha v. Metz, 385 Pa. 632, 637, 123 A.2d 837, 839 (1956) ]. This principle of exclusivity is expressly set forth in Section 303 of the Act, which provides: “The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employees ... otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in [Section 411].” 77 P.S. § 481. However, the Act provides an important exception to this principle of exclusivity. Specifically, the Act provides that the term, injury arising in the course of his employment, “shall not include an injury caused by an act of a third person intended to injure the employee because of reasons personal to him, and not directed against him as an employee or because of his employment....” 77 P.S. § 411(1). We refer to this loosely as the “personal animus exception.”

Id. 532 Pa. at 136, 615 A.2d at 30 (emphasis in original). See also Vosburg v. Connolly, 405 Pa.Super. 121, 591 A.2d 1128 (1991); Dolan v. Linton’s Lunch, 397 Pa. 114, 152 A.2d 887 (1959). The court went on to note that in order for an employee to set forth a valid cause of action against his employer under the personal animus exception, “an employee must assert that his injuries are not work-related because he was injured by a co-worker for purely personal reasons.” Id., 532 Pa. at 137-38, 615 A.2d at 31 (emphasis in original). Where the animosity between the third party and the injured employee is developed because of work-related disputes, the animosity is developed because of the employment, and the injured employee’s remedy is exclusively under the Workmen’s Compensation Act. Repco Products Corp. v. Workmen’s Comp. App. Bd., 32 Pa.Cmwlth. 554, 557, 379 A.2d 1089, 1090 (1977). Furthermore, “the lack of pre-existing animosity between the combatants strongly suggests that the motive for the attack was work-related and not because of reasons personal to the assailant.” Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 391, 421 A.2d 251, 255 (1980).

Here, appellant has failed to plead facts which would indicate that the incidents which occurred between herself and Dr. Lindsay arose out of personal animus. The conflict between them began when appellant did not promptly comply with a request made by Dr. Lindsay. This incident was clearly work related. All of the subsequent incidents either involved comments by Dr. Lindsay which occurred as a result of the first confrontation, or because of a second incident involving appellant’s handling of a telephone call from another doctor to Dr. Lindsay. Any animosity between appellant and Dr. Lindsay was clearly rooted in their working relationship. There has been no indication that there were personal reasons for Dr. Lindsay’s conduct, or that there was any pre-existing animosity between appellant and Dr. Lindsay. Appellant having failed to plead a cause of action falling within the personal animus exception, the trial court did not err in granting the Hospital’s motion for judgment on the pleadings. Cf. Sabot v. Dept. of Public Welfare, 138 Pa.Cmwlth. 501, 588 A.2d 597 (1991) (absent averment of personal animus, it appeared aide was attacked merely because of her position as hospital employee and that there was no personal animosity against her specifically); Brooks v. Marriott Corp., 361 Pa.Super. 350, 522 A.2d 618 (1987) (allegations that employee was killed because killer had personal animus against her and that this animus was the motivation for the murder, were sufficient to state a cause of action within personal animus exception); Scantlin v. Ulrich, 318 Pa.Super. 407, 465 A.2d 19 (1983) (where employee did not indicate that employer’s action was taken because of personal animosity toward employee, employee did not state cause of action falling within the personal animus exception of the Workmen’s Compensation Act).

Order affirmed. Jurisdiction relinquished.

WIEAND, J. files a Concurring and Dissenting Opinion.

WIEAND, Judge, concurring and dissenting:

I concur in the majority’s decision to affirm the trial court’s entry of judgment on the pleadings in favor of defendant-hospital on the cause of action stated by the plaintiff for intentional infliction of emotional distress. I am unable to agree, however, and therefore dissent from the majority’s holding that plaintiff is barred by the exclusivity clause of the Worker’s Compensation Act from asserting a cause of action for defamation.

This holding by the majority, which in my best judgment is erroneous, appears to have been caused by the majority’s failure to distinguish between the “issue” preserved for appellate review and the “argument” made by the appellant with respect thereto. “Although this Court is limited to the issues raised by the appellant here and in the lower court, it is not limited to the appellant’s arguments.” Martin v. Poole, 232 Pa.Super. 263, 267 n. 2, 336 A.2d 363, 366 n. 2 (1975). It is not the function of an appellate court merely to rebut the “arguments” advanced by an appellant. The court’s function, rather, is to review and decide the issues which have been preserved for appellate review.

The issue in this appeal, which was raised in the trial court by defendant-appellee’s motion for judgment on the pleadings, is whether plaintiff-appellant’s cause of action for defamation against her employer is barred by the exclusivity clause contained in Section 303 of the Worker’s Compensation Act of June 2, 1915, P.L. 736, § 303, as amended, 77 P.S. § 481(a). The trial court held that the action was -barred because “[t]he situations that are set forth in Plaintiffs Complaint comprise purely work-related incidents” and “[t]he personal animus exception ... does not apply in this situation.” Trial court order of July 21, 1993. On appeal from this holding, the plaintiff has argued that the personal animus exception was applicable to preserve her right to bring a common law action for defamation. Although I agree with the majority that the personal animus exception has no application to the facts of this case, this does not decide the underlying issue. That issue is whether a work-related cause of action for defamation is barred by the exclusivity clause of the Worker’s Compensation Act. We are not excused from deciding this “issue” correctly merely because appellant has advanced an inadequate “argument.” Indeed, until it is decided that a defamation action is barred by the exclusivity clause of the Workers’ Compensation Act, there is no need to decide whether the personal animus exception can have application.

In February, 1992, according to the averments of the complaint, Sharon Hammerstein was working as a unit clerk in the emergency room of The Williamsport Hospital when Dr. David Lindsay requested that she put an “STD” (sexually transmitted disease) notation on a patient’s chart. Hammerstein said she would do as requested but continued the project on which she was then working. Apparently angered, Lindsay picked up the chart and shouted that he would take care of it himself. Following this outburst, Lindsay allegedly stated to Hammerstein in the presence of patients and others, “You are a worthless excuse for a secretary.” Lindsay also told Bonnie Eck, an emergency room staff person, that Hammerstein was “uncouth.” When Hammerstein complained to Lindsay about these statements, he allegedly told Hammerstein that she was worthless and should leave. Hammerstein complained to Barb Herriman, the Patient Care Manager, and Bob Kane, the Administrative Director of Ambulatory Services.

Approximately one week later, Hammerstein informed Lindsay that Dr. Ted Larson had responded to Lindsay’s page and was on the phone. When Lindsay failed to take the call, Larson called a second time; whereupon, Lindsay said to Larson, “Sorry Ted, I have a rude, incompetent bitch for a secretary today.” Hammerstein again complained to Herriman and Kane and requested a meeting. Kane thereafter met with Lindsay and later notified Hammerstein that it had been determined that both parties were at fault and that the matter had been resolved. Nevertheless, it is alleged, Lindsay continued to make derogatory remarks about Hammerstein, openly questioned her competency and stated to another physician that she had a “personality disorder.” After approximately five months, Hammerstein left her job as unit clerk.

In April, 1993, Hammerstein commenced a civil action against Dr. Lindsay and The Williamsport Hospital. As to Lindsay, she alleged causes of action for defamation and intentional infliction of emotional distress. As to the hospital, Hammerstein alleged vicarious liability for defamation, and separate liability for the negligent failure to supervise its employees and/or to investigate her complaints about Dr. Lindsay’s conduct. The hospital filed an answer in which it alleged, inter alia, that the tort claims against it were barred by the exclusivity clause of the Worker’s Compensation Act. Thereafter, the trial court granted a motion for judgment on the pleadings by the hospital, holding that the plaintiffs actions against the hospital were barred by the exclusivity clause of the Worker’s Compensation Act.

In general, the Worker’s Compensation Act provides the sole and exclusive remedy for an employee who seeks to recover for injuries sustained in the course of his or her employment. Wagner v. National Indemnity Co., 492 Pa. 154, 161, 422 A.2d 1061, 1065 (1980); Hershey v. Ninety-Five Associates, 413 Pa.Super. 158,160, 604 A.2d 1068,1069, allocatur denied, 532 Pa. 651, 615 A.2d 341 (1992). The exclusivity clause is set forth in Section 303 of the Act, where it is provided in pertinent part as follows:

(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) [77 P.S. § 411(1) and (2) ] or occupational disease as defined in section 108 [77 P.S. § 27.1],

Act of June 2, 1915, P.L. 736, § 303(a), as amended, 77 P.S. § 481(a) (footnotes omitted).

In order to determine whether an employee’s alleged injury is subject to the exclusive remedies of the Act or whether such injury is remediable in a common law tort action, a court “must examine the scope of the statute and its remedies to determine the intent of the legislature.” Kuney v. PMA Ins. Co., 525 Pa. 171, 175, 578 A.2d 1285, 1286 (1990). If a tort action is one for which a remedy cannot be had in worker’s compensation proceedings, the exclusivity clause of Section 303 can have no application. Id. (injuries not covered by the Act are not subject to tort immunity).

“[T]he key to whether the Worker’s Compensation Act precludes a common law right of action lies in the nature of the injury for which [a] plaintiff makes claim, not the nature of [the] defendant’s act which [the] plaintiff alleges to have been responsible for that injury.” Gambrell v. Kansas City Chiefs Football Club, Inc., 562 S.W.2d 163, 168 (Mo.App.1978). “When the allegations of a claim have as their ultimate basis an injury compensable under the Worker’s Compensation Act, the claim must be considered within the framework of the statute.” Kuney v. PMA Ins. Co., supra, 525 Pa. at 176, 578 A.2d at 1287. If an injury is not compensable under the Act, however, the employer cannot claim the benefit of the Act’s tort immunity. Id. at 175, 578 A.2d at 1286. Accord: Dolan v. Linton’s Lunch, 397 Pa. 114, 152 A.2d 887 (1959) (The legislature intended that the Act would supersede common law actions only as to injuries within the Act’s coverage.).

After a review of the Act, cases defining the term “injury” as used therein, and the remedies provided by the Act, I conclude that the term “injury” does not include the harm caused to one’s reputation by defamatory remarks.

The Worker’s Compensation Act, as originally enacted in 1915, provided benefits only for injury or death resulting from an “accident” in the course of employment. Act of June 2, 1915, P.L. 736, §§ 101 and 301(a), 77 P.S. §§ 1, 431 (1915). An “injury” was defined by the 1915 Act as “violence to the physical structure of the body, and such disease or infection as naturally results therefrom.... ” Act of June 2, 1915, P.L. § 301(c), 77 P.S. § 411 (1915). In 1972, however, the Act was extensively amended. In Section 101, 77 P.S. § 1, the word “accident” was deleted as a condition for the receipt of benefits. The prior statutory definition of “injury” was deleted, and a broader concept was created. Pursuant to the 1972 amendments, an “injury” encompassed all work-related harm to an employee, regardless of his previous physical condition, including job-related aggravation, reactivation or acceleration of a pre-existing disease. Act of June 2, 1915, P.L. 736, § 301(c)(1), as amended, 77 P.S. § 411(1). By legislative design, occupational diseases were also included in the concept of “injury.” Act of June 2, 1915, P.L. 736, § 301(c)(2), as amended, 77 P.S. § 411(2). See also: Pawlosky v. Workmen’s Compensation Appeal Board, 514 Pa. 450, 525 A.2d 1204 (1987) (general discussion of changing concept of an “injury” under the Worker’s Compensation Act). Despite the Act’s broadened concept of, an “injury,” the legislature did not provide a specific definition of those injuries covered by the Act in the amendments of 1972.

The Supreme Court, however, has concluded that the word “injury” should be interpreted according to its common and approved usage.’ Pawlosky v. Workmen’s Compensation Appeal Board, supra at 459, 525 A.2d at 1209. In Pawlosky, the court observed that, “ ‘in common speech the word ‘injury,’ as applied to personal injury to a human being, includes whatever lesion or change in any part of the system produces harm or pain, or a lessened facility of the natural use of any bodily activity or capability.’ ” Id. (emphasis omitted), quoting Creighan v. Firemen’s Relief and Pension Fund Board, 397 Pa. 419, 425, 155 A.2d 844, 847 (1959). More recently, in Al’s Radiator Service v. Workmen’s Compensation Appeal Board, 157 Pa.Commw. 432, 630 A.2d 485 (1993), the Commonwealth Court identified the types of injuries contemplated by the Act by saying: “Under the Act, there are two types of injuries. The first and most obvious is the physical injury, arising in the course of employment, made compensable under Section 301(c)(1) of the Act, 77 P.S. § 411(1). The other type of injury is the ‘occupational disease’ which, by virtue of Section 301(c)(2) of the Act, 77 P.S. § 411(2), also constitutes a compensable injury.” Id. at 437, 630 A.2d at 487. Pennsylvania’s appellate courts, however, have not limited the scope of the term “injury” to physical impairment of the person only. Mental illness or psychiatric injury is compensable under the Act if it is work-related and other than a subjective reaction to normal working conditions. Martin v. Ketchum, Inc., 523 Pa. 509,. 516, 568 A.2d 159, 163 (1990); Archer v. Workmen’s Compensation Appeal Board, 138 Pa.Commw. 309, 314, 587 A.2d 901, 903 (1991). For purposes of receiving compensation under the Act, therefore, an “injury” has been interpreted to be either disease or physical and/or mental impairment of the person.

An examination of the benefits provided by the Act also supports the conclusion that the concept of “injury” embodies a mental or physical condition affecting the employee’s person. When a compensable injury or disability occurs, the employee receives a specific amount of compensation as set forth in the compensation schedules contained in the Act. See generally: Act of June 2, 1915, P.L. 736, § 301(a), as amended, 77 P.S. § 431. The amount of compensation or payment an injured employee receives depends on whether a partial or total disability has been sustained. See generally: Act of June 2, 1915, P.L. 736, §§ 306(a) and 306(b), as amended, 77 P.S. §§ 511 and 512. Disability, as contemplated by the Act, “is ‘the loss, total or partial, of earning power’ ” which results from a work-related injury. Kachinski v. Workmen’s Compensation Appeal Board, 516 Pa. 240, 248, 532 A.2d 374, 378 (1987), quoting Woodward v. Pittsburgh Engineering and Construction Co., 293 Pa. 338, 340, 143 A. 21, 22-23 (1928). See also: Harmon Mining Co. v. Workmen’s Compensation Appeal Board, 157 Pa.Commw. 326, 330 n. 5, 629 A.2d 312, 314 n. 5 (1993); Smith v. Workmen’s Compensation Appeal Board, 63 Pa.Commw. 340, 345, 437 A.2d 1301, 1303 (1981). Two of the factors considered by the statute in determining compensation are the injured employee’s earning power and the injury’s effect thereon. The Act also provides that an injured employee may receive payment for permanent injuries, such as the loss of a hand or eye. See generally: Act of June 2, 1915, P.L. 736, §§ 306(c, d) and 306.1, as amended, 77 P.S. §§ 513, 516. The Act also requires that the employer provide an injured employee with payment for medical services, medicines and supplies, hospital treatment and accommodations, orthopedic appliances, etc. See generally: Act of June 2, 1915, P.L. 736, § 306(e), as amended, 77 P.S. § 531. It is apparent, therefore, that the remedial provisions of the Act embody the concept that a compensable injury is limited to a type of harm which causes an employee to suffer a loss of earning power and/or some type of medical treatment.

A defamation action seeks damages for the harm caused to one’s reputation. “An action for defamation is based on a violation of the fundamental right of an individual to enjoy a reputation unimpaired by false and defamatory attacks. The gist of such an action is injury to the plaintiffs reputation.” Berg v. Consolidated Freightways, Inc., 280 Pa.Super. 495, 500, 421 A.2d 831, 883 (1980). The main purpose of an action for defamation “is to give the innocent and injured plaintiff a public vindication of his [or her] good name.” Graham v. Today’s Spirit, 503 Pa. 52, 57, 468 A.2d 454, 457 (1983), quoting Gaetano v. Sharon Herald Co., 426 Pa. 179, 183, 231 A.2d 753, 755 (1967). The essence of the action, therefore, is not to compensate one for an “injury” as contemplated by the Worker’s Compensation Act, i.e., a physical or emotional impairment to one’s person which often requires medical treatment. “In fact, an injury to reputation affects a proprietary interest and as such is not a personal injury at all, any concomitant physical or mental injury notwithstanding.” Battista v. Chrysler Corp., 454 A.2d 286, 289 (Del.Super.1982).

In the present case, appellant’s complaint seeks damages for defamation which allegedly injured her professional and personal reputation. No provision is made in the Worker’s Compensation Act for the recovery of damages for harm to one’s reputation. Because there is no relation between the injuries sought to be addressed by the Worker’s Compensation Act and the harm or damage alleged in appellant’s defamation action, I would hold that the Act does not allow benefits therefor. For this reason, appellant’s slander action against appellee is not within the exclusivity clause of the Act.

Although the Pennsylvania appellate courts have not heretofore considered this issue, the clear weight of authority in other jurisdictions supports the view that a defamation action is not within the purpose of worker’s compensation and can be maintained by an employee in a civil action against the employer. See, e.g.: Oliver v. Wal-Mart Stores, Inc., 209 Ga. App. 703, 434 S.E.2d 500 (1993); Loges v. Mack Trucks, Inc., 308 S.C. 134, 417 S.E.2d 538 (1992); Snead v. Harbaugh, 241 Va. 524, 404 S.E.2d 53 (1991); Battista v. Chrysler Corp., supra; Howland v. Balma, 143 Cal.App.3d 899, 192 Cal.Rptr. 286 (1983). I would hold, therefore, that the trial court erred when it held that the Worker’s Compensation Act barred appellant’s claim for defamation.

In concluding, as I do, that the judgment entered in favor of the hospital in the defamation action should be reversed, I do not suggest that appellant was defamed or that she has stated a viable cause of action for defamation against the hospital. Those issues were not decided by the trial court and have not been argued on appeal. With respect to such issues, I express no opinion. I would hold only that an action for defamation is not within the exclusivity clause of the Worker’s Compensation Act. Because the trial court held otherwise, I would reverse; inasmuch as the majority’s decision appears to hold otherwise, I respectfully dissent.

      . Dr. Lindsay is not an active participant in this appeal, as he did not join the hospital’s motion for judgment on the pleadings below.

      . See 77 P.S. § 481(a).

      . See 77 P.S. § 411(1).

      . The dissent takes issue with “the majority’s holding that plaintiff is barred by the exclusivity clause of the Worker's Compensation Act Irom asserting a cause of action for defamation.” (Wieand, J., concurring and dissenting at 1). This is a misstatement of our holding. Although the Hospital’s motion for judgment on the pleadings alleged that appellant’s claims were barred by the exclusivity clause of the Workmen’s Compensation Act, this issue was not the basis for our holding as it has not been preserved for appellate review.
      There is no indication in the record that appellant argued before the trial court, that the exclusivity clause did not bar an action for defamation. Furthermore, the trial court, in disposing of the Hospital’s motion, did not rule on the exclusivity issue, but rather, specifically concluded that appellant failed to aver facts which would bring her cause of action within the personal animus exception to the Act. In any event, appellant framed the issue on appeal narrowly: whether her cause of action fell within the personal animus exception of the exclusivity provision of the Act. We view this course of conduct as an implicit concession by appellant that the exclusivity clause does bar an action for defamation. In these circumstances, we can only conclude that appellant, even if she contested the exclusivity issue below, has abandoned that issue on appeal.
      Finally, the dissent’s consideration of the exclusivity issue undermines bedrock principles of appellate review. It is well-settled that this Court may not decide a case on the basis of an issue raised for the first time on appeal. See Com., Dept. ofTransp. v. Boros, 533 Pa. 214, 620 A.2d 1139 (1993) (appellate court may not introduce issue which none of the parties have raised); Estep v. Estep, 508 Pa. 623, 500 A.2d 418 (1985) (where Superior Court considers an issue sua sponte, it exceeds its scope of appellate review); Kryeski v. Schott Glass Technologies, 426 Pa.Super. 105, 626 A.2d 595 (1993) (matters raised for the first time on appeal are not properly preserved for appellate review and may not be considered); Harding v. Consolidated Rail Corp., 423 Pa.Super. 208, 620 A.2d 1185 (1993) (only those issues properly raised in the trial court may be reviewed on appeal). Application of this principle should not be viewed as an over-technical enforcement of canons of appellate review, particularly in this case. The dissent’s position represents an unprecedented departure from established policy in this Commonwealth, both statutory and judicial, which espouses the strict exclusivity of workers compensation remedies as the sole avenue of relief for claims for tort relief by an employee against (her) employer. As the issue upon which the dissent would decide this case is not properly before this Court, our decision on this interesting issue (whether the Act's exclusivity provision bars an action for defamation) must await another day, as we may only decide the narrow issue which appellant has placed before this Court.

      . We note briefly that appellant cites Martin v. Lancaster Battery Co., Inc., 530 Pa. 11, 606 A.2d 444 (1992), for the proposition that where an employer aggravates a work-related injury, the employee is not barred from pursuing a common law claim against the employer. Appellant maintains on appeal that the Hospital’s failure to adequately investigate and address the situation between herself and Dr. Lindsay, resulted in an aggravation of her injuries, even if they were work-related. Her reliance on Martin, however, is misplaced.

        Martin involved a situation where the employer actively mislead its employee as to the extent of his work-related injuries. The court classified the actions of the employer as flagrant misconduct. It concluded that where the aggravation of an employee’s injuries arises from and is related to the fraudulent misrepresentation of the employer, the employee’s remedies are not limited to those provided by the Workmen’s Compensation Act, and the employee is not precluded from bringing a common law action against his employer. The holding of Martin is limited to situations where the employer has engaged in fraudulent misrepresentation. In the present case, appellant has not made such an allegation against the Hospital. Thus, this argument is baseless.

      . A similar change was made in Section 301(a), 77 P.S. § 431. Section 301(a), provides in pertinent part, “Every employer shall be liable for compensation for personal injury to, or for the death of each employe, by an injury in the course of his [or her] employment, and such compensation shall be paid in all cases by the employer....” Act of June 2, 1915, P.L. 736, § 301(a), as amended, 77 P.S. § 431.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    655 A.2d 606
    The BOROUGH OF BERWICK, Appellant, v. The QUANDEL GROUP INC., Technocon, Innova-Tech, Inc., Buchart-Horn, Inc., and Philadelphia Mixers Corporation, Appellees, The BOROUGH OF BERWICK, Appellant, v. The QUANDEL GROUP INC., Technocon, Innova-Tech, Inc., Buchart-Horn, Inc., and Philadelphia Mixers Corporation, Appellees, The BOROUGH OF BERWICK, Appellant, v. The QUANDEL GROUP INC., Technocon, Innova-Tech, Inc., Buchart-Horn, Inc., and Philadelphia Mixers Corporation, Appellees.
    Superior Court of Pennsylvania.
    Argued Jan. 25, 1995.
    Decided March 10, 1995.
    Petition for Allowance of Appeal Granted August 22, 1995.

      Lawrence H. Fisher, Berwick, for appellant.

      Frank L. Tamulonis, Jr., Pottsville, for Quandel Group & Technocon, appellees.
    John J. Sylvanus, York, for Buehart-Horn, appellee.
    Kevan F. Hirsch, Philadelphia, for Philadelphia Mixers Corp., appellee.
    Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

In 1985, the Borough of Berwick decided to upgrade and refurbish its sewage treatment plant. The borough did this through the Municipal Authority of the Borough of Berwick (the Authority). The Authority owned the plant, and leased it to the Borough of Berwick. The Authority entered into construction contracts with the defendants. The borough was not a party to any of the Authority’s contracts with defendants; it was a guarantor on one of the contracts with Buchart-Horn, an engineering firm.

The plant experienced significant problems, and in 1990 the Borough of Berwick sued defendants for breach of contract, breach of warranty, and negligence. The borough filed a complaint in 1992. One of the defendants, the subcontractor Innova-Tech, demurred. The trial court sustained the demurrer, and the borough appealed. In a lengthy, highly detailed decision, we affirmed. The Borough of Berwick v. The Quandel Group, Inc., No. 305 Phila. 1993, 433 Pa.Super. 602, 636 A.2d 1205 (Pa.Super., 9/14/93); brief of Quandel Group, S.R.R. at 19. This decision is the law of the case. We hereby incorporate it by reference, and rely on its analysis.

Our prior decision reviewed the borough’s relationship with the Authority and this construction in great detail. We closely examined the contracts. We concluded that the borough was not a party to Innova-Tech’s subcontract with the Authority, nor was it a third-party beneficiary. The borough could state no cause of action against Innova-Tech.

Our prior decision could be summed up as holding that the Borough of Berwick had no standing to sue Innova-Tech. It insulated itself from the plant construction, and instead used the separate legal entity of the Authority to build, maintain and own the plant. The Authority dealt with the defendants, so the proper party to bring suit would have been the Authority-

After we returned jurisdiction to the trial court, it addressed the demurrers and motions for judgment on the pleadings of the other defendants. The trial court applied the holding of our decision to the other defendants, and granted their motions, thus dismissing the case. Sensing that this would be the inevitable result, the borough brought a last-minute motion to amend its pleadings or to add the Authority as a second plaintiff. The Authority had originally refused to get involved with the borough’s litigation, but now apparently acquiesced to being joined in this suit. The trial court denied these orders, holding that amendment would have been futile.

The borough now challenges the dismissal of defendant Buchart-Horn, the engineering firm which designed the plant and oversaw its refurbishment. On the present appeal, the borough has scarcely acknowledged our prior decision — it has not even bothered to include it in its reproduced record. The previous decision, however, is the controlling law of the case. There, we noted that although the borough signed the contract between the Authority and Buchart-Horn, it did so only as a guarantor. It appeared to us (and we stated in dicta) that the borough was not a party to the contract. Berwick v. Quandel, supra at 440 Pa.Super. 367, n. 2, 655 A.2d 606.

The borough presents no reasons why we should not follow our previous dictum on the present appeal. The same test for third-party beneficiary status applies now that did in the earlier appeal. See Scarpitti v. Weborg, 530 Pa. 366, 609 A.2d 147 (1992). The trial court found, and the record supports the conclusion, that Buchart-Horn intended to confer the benefit of its performance on the Authority, which is the party that has standing to bring this action. The borough signed the contract only as a guarantor. Trial court opinion, 2/9/94 at 2-5. The record does not reveal why the Authority chose not to join the borough in this suit, or to bring an action in its own right. We can only agree with the trial court’s conclusion that the borough still lacks standing with respect to Buchart-Horn.

In light of this, the borough attempted to amend its complaint and join the Authority as second plaintiff on the eve of dismissal. The trial court acknowledged that it may liberally allow the amending of complaints, but held that to do so at this stage would be futile. Id. at 6. We agree. The borough does not specify how it would amend its complaint except to state that “[t]he pleadings could have been amended so as to include the Municipal Authority so there is no question as to contract privity.” Appellant’s brief at 20. Hence, we interpret both the borough’s motion to amend the complaint and its motion to join the Authority as requests to cure its standing problem by substituting the Authority as the plaintiff in this action.

A new party may be substituted when the effect is to correct a name, but a new and distinct party may not be added. Jacob’s Air Conditioning and Heating v. Associated Heating and Air Conditioning, 366 Pa.Super. 430, 531 A.2d 494 (1987). The question is “whether the right party was sued but under a wrong designation, or whether a wrong person was sued and the amendment was designed to substitute another and distinct party.” Cianchetti v. Kaylen, 241 Pa.Super. 437, 441, 361 A.2d 842, 844 (1976) (citations omitted).

This law concerning substitution of parties has usually arisen in the context of adding defendants after the statute of limitations has run against them. Here the action was initiated in 1990, and the four-year statute of limitations for contract actions had clearly expired by the time the borough sought to bring in the Authority. The twist is that the borough does not seek to add' a new defendant, but to substitute the correct plaintiff for itself. A plaintiff without standing may not commence a suit and then attempt to substitute the proper plaintiff after the statute of limitations has run. The substitution would effectively introduce a new cause of action which is time barred, and will therefore not be permitted. Maxson v. McElhinney, 370 Pa. 622, 624-25, 88 A.2d 747, 749 (1952).

At the same time, we must acknowledge that this question of plaintiff substitution has never arisen in the context of a municipality and its own municipal authority. Because this appears to be a novel, although obscure question, we do not consider the borough’s appeal to be frivolous. We therefore decline appellee Philadelphia Mixer Corporation’s application for counsel fees pursuant to Pa.R.A.P. 2744.

Orders affirmed.

WIEAND, J., concurs in the result.

      . This suit was filed before the new version of Pa.R.A.P. 341 went into effect, which prevents such piecemeal appeals.


text:
    655 A.2d 997
    PNC BANK, National Association Successor by Merger to PNC Bank, Northeast Pa., Formerly Known as Northeastern Bank of Pennsylvania, Appellee v. Robert C. BOLUS, A/K/A Robert Bolus, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1994.
    Filed Jan. 25, 1995.
    Reargument Denied March 21, 1995.

      Debra Bolus-Kaufmann, Philadelphia, for appellant.
    Steven E. Ostrow, Philadelphia, for appellee.
    Before McEWEN, OLSZEWSKI and JOHNSON, JJ.
   OLSZEWSKI, Judge:

In 1989, PNC Bank loaned Robert Bolus $780,000. The loan was secured by a mortgage and a lease assignment, and was part of a larger transaction which restructured Bolus’s existing debt. The only aspect of the loan which concerns this appeal, however, is the promissory note which evidenced it, and which permitted PNC to confess judgment against Bolus in the event of a default. The pertinent parts of the note read:

PROMISSORY NOTE
July 14, 1989
$780,000.00
FOR VALUE RECEIVED, and intending to be legally bound, ROBERT C. BOLUS, a/k/a ROBERT BOLUS, of 1530 Birch Street, Scranton, Pennsylvania 18505 (the “Maker”) promises to pay to the Order of NORTHEASTERN BANK OF PENNSYLVANIA (the “Bank”) at its Central City, Scranton, Office, the sum of SEVEN HUNDRED EIGHTY THOUSAND DOLLARS ($780,000.00) in one hundred eighty (180) consecutive monthly installments, as follows:
[several paragraphs follow concerning payment and the security agreement]
The terms of the Loan Agreement shall be deemed incorporated herein; provided, however, that no such inclusion shall in any manner be deemed to affect Maker’s obligation hereunder or operate to limit the negotiability hereof.
In the event of a default ... Maker hereby empowers ... any attorney ... to confess judgment ... for the above sum, together with costs of suit and a reasonable attorney’s commission, but not greater than ten percent (10%), for collection, with release of all errors.
* * * * H: *

R.R. at 7-9 (emphasis in bold added).

Bolus defaulted on the loan in 1993. After he was notified of the default and failed to cure it, the Bank decided to confess judgment against him. Pursuant to Pa.R.C.P. 2952, the Bank’s attorney entered his appearance on behalf of Bolus and asked the prothonotary to enter judgment against Bolus in the total amount of $803,341.54, as follows:

Principal balance $706,477.74
Interest $ 10,628.37
Late charges $ 90.00
Real estate taxes $ 13,553.58
Liability insurance $ 1,889.58
Attorney’s commission $ 70,647.77
Costs of suit $ 54.50
Total: $803,341.54

R.R. at 5-6.

Bolus brought a petition to strike off or open the confessed judgment. He argued that the amount confessed included charges clearly outside the warrant of confession in his promissory note, so the entire confessed judgment is void and should be struck off. The trial court denied Bolus’s petition in its order of 3/1/94. Bolus now appeals.

A petition to strike a judgment operates as a demurrer to the record, and must be granted whenever some fatal defect appears on the face of the record. Franklin Interiors v. Wall of Fame Management Co., Inc., 510 Pa. 597, 599, 511 A.2d 761, 762 (1986). Bolus has pointed to a profound defect: PNC Bank confessed judgment for several items which the confession clause in the promissory note never authorized.

The cognovit clause quite plainly states that upon default, PNC may confess judgment for “the above sum.” There is only one possible referent for the term “the above sum”— namely, the sum of $780,000 which the Bank lent to Bolus and which is prominently displayed at the top of the note. R.R. at 7-9. The cognovit clause does not authorize the Bank to confess judgment for any other claim outside the note which the Bank might have against Bolus, such as delinquent taxes or insurance premiums.

The Bank argues that the paragraph immediately preceding the cognovit clause incorporates the entire Loan Agreement by reference, and therefore any amount owed under this other agreement could be included in a judgment by confession on the note. This argument fails for three reasons.

First, as already mentioned, the cognovit clause says the Bank may confess judgment for “the above sum,” not for any amount owing under the above referenced Loan Agreement. There is simply no other “sum” mentioned anywhere else in the note. We cannot conceive how the note could be interpreted otherwise.

Second, the paragraph referencing the Loan Agreement states that the Loan Agreement shall not be incorporated if such inclusion could “affect the Maker’s obligation hereunder.” Doubtless, the Bank wished to insure that the referenced Loan Agreement would never operate to lower Bolus’s basic obligation to repay the $780,000 loan. But the phrase “affect the Maker’s obligation” can apply to raising the obligation as well as lowering it. By including the taxes and insurance debts from the Loan Agreement, the Bank increased Bolus’s obligation beyond what is stated in the note. Hence, the Bank’s confession argument clearly affects Bolus’s obligation under the note, so we must conclude that the Loan Agreement is not incorporated. The Bank’s incorporation argument fails under its own terms.

Third, the same paragraph states that the Loan Agreement shall not be incorporated if such incorporation would limit the note’s negotiability. If the amount which Bolus owed under the note were determined by the Loan Agreement, then the instrument would not be negotiable. See 13 Pa.C.S.A. § 3104 (negotiable instruments must be for a fixed amount) and § 3106 (stating the obligations regarding the promise to pay in another writing makes the note conditional, and nonnegotiable). The Bank’s incorporation argument is again defeated by its own terms.

Nor has the trial court offered any contrary interpretation. The trial court’s order merely stated that it denied Bolus’s motion to strike because the Bank complied with the judgment by confession procedures set forth in PennWest Farm Credit, ACA v. Hare, 410 Pa.Super. 422, 600 A.2d 213 (1991). Penn-West addresses special laws applicable to residential mortgages of less than $50,000. Bolus’s property is a commercial gas station and truck stop. PennWest is inapposite, and nowhere addresses Bolus’s straightforward claim that a confessed judgment must be strictly limited to the amounts or items expressly stated in the note, or it will be void.

A case which does address this precise point is Langman v. Metropolitan Acceptance Corp., 318 Pa.Super. 381, 465 A.2d 5 (1983). In Langman, this Court reiterated well-established principles of law:

Because a warrant of attorney authorizing confession of judgment can be an oppressive weapon, a judgment entered pursuant thereto can be accomplished only by strict adherence to the provisions of the warrant. Any doubt as to the validity of such a judgment must be resolved against the party entering the judgment.
^ #
In numerous decisions, [the courts] have ruled that if the confessed judgment includes an item not authorized in the warrant, the judgment is void in its entirety and must be stricken.

Id. at 384, 386, 465 A.2d at 7, 8 (emphasis added, numerous citations omitted). Langman further notes that “[s]uch a defect goes to the very heart of the judgment and cannot be ignored or overlooked under the aegis of the ‘waiver of error’ clause.” Id. at 386, 465 A.2d at 8. See also Dollar Bank v. Northwood Cheese Co., 431 Pa.Super. 541, 551-52, 637 A.2d 309, 314 (1994).

The Bank wanted the convenience of a negotiable note with a confession clause, but without the constraints which negotiability and confession of judgment impose. Confession of judgment is a powerful tool, because it effectively prevents the debtor from having his day in court. Such power must be exercised fairly and with exacting precision. The Bank may not use this one confession clause as a convenient method to collect any and every claim it has against Bolus. For “sums” not mentioned in the note, the Bank must use other, less oppressive debt collection procedures.

We acknowledge that Bolus may well be in default, and the Bank may be fully entitled to confess judgment against him. We emphasize that our present holding striking the judgment has no prejudicial effect; the Bank may go back to the prothonotary and properly confess judgment for the amount stated in the note.

We also observe that the trial court exercised its inherent equitable power to reduce the attorney’s fee charge by about $60,000. See note 3, supra. While this decision is mooted by our present holding, which strikes off the judgment in its entirety, we express our approval of this aspect of the trial court’s decision. To charge more than $70,000 as an attorney’s fee for what in most cases amounts to filing a single document with the prothonotary is blatantly unreasonable. We do not specifically endorse the trial court’s chosen amount as appropriate, nor offer guidelines for this or future cases, since the issue is not directly before us. We would merely encourage trial courts to monitor the amounts charged in such circumstances, and to reduce clearly excessive fees. See Northwood Cheese, supra at 551-52, 637 A.2d at 314 (court may modify amount of attorney’s fees if excessive).

The trial court’s order denying Bolus’s motion to strike is reversed, and the judgment is stricken. Jurisdiction is relinquished.

      . PNC Bank is the Northeastern Bank's successor-in-interest to this loan.

      . Specifically, the debts concerning taxes and insurance were not mentioned in the note.

      . The trial court did not file a Rule 1925 opinion, nor did it ask Bolus for a statement of matters complained of on appeal. See Pa.R.A.P. 1925. Thus, this short order contains the trial court’s only explanation for its decision. The order also denied Bolus’s petition to open the judgment, but the court did exercise its equitable powers to reduce the excessive attorney’s commission from $70,647.77 to about $10,000. Order of 3/1/94.

      . The note authorized a reasonable attorney’s commission, not to exceed ten percent of the amount of the loan in default. R.R. at 9. Thus the $70,647.77 fee entered is the maximum allowable under the note, but it is not necessarily a reasonable amount.


author: WIEAND, Judge.

text:
    655 A.2d 1000
    COMMONWEALTH of Pennsylvania v. Emerson MILLER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 19, 1994.
    Filed Feb. 22, 1995.

      Emerson Miller, pro se.
    Annmarie Kaiser, Asst. Dist. Atty., Harrisburg, for Com., appellee.
    Before ROWLEY, P.J., and WIEAND and CERCONE, JJ.
   WIEAND, Judge.

Emerson Miller, the appellant, was arrested on March 26, 1993 and charged with delivery of a controlled substance. He posted bail on April 2, 1993 and was released from custody. On July 24, 1993, however, Miller was arrested on an unrelated charge of aggravated assault; and, on August 5, 1993, he was additionally charged with robbery, a charge which arose from the same incident which had produced the aggravated assault charge. He remained incarcerated on the aggravated assault and robbery charges until January 13, 1994, when he was tried and acquitted of those charges. Meanwhile, on November 24, 1993, Miller had entered a plea of guilty to the controlled substance charge; and sentencing had been deferred pending preparation of a presentence report. On February 14, 1994, Miller was sentenced for delivery of a controlled substance to serve a term of imprisonment for not less than thirty-three (33) months nor more than seven (7) years. No direct appeal was taken from the judgment of sentence.

On June 24, 1994, however, Miller filed a petition to obtain credit for all time during which he had been incarcerated before being sentenced. On July 12, 1994, the trial court entered an order denying Miller’s petition. A notice of appeal was filed by Miller on August 8, 1994. Thereafter, on August 17, 1994, the trial court entered an order amending Miller’s sentence and giving him credit for the time from March 26, 1993 to April 2, 1993, during which he had been in custody on the drug charge prior to posting bail. However, the court refused to give Miller credit for time served from July 24, 1993 to January 13, 1994, the period during which he was in custody following arrest for the unrelated charges of aggravated assault and robbery. On appeal, Miller continues to argue that he should receive credit for all time that he was in custody prior to being sentenced on the drug charge to which he pleaded guilty.

The Sentencing Code provides for the awarding of credit for time served in the following manner:

After reviewing the information submitted under section 9737 (relating to report of outstanding charges and sentences) the court shall give credit as follows:
(1) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such a charge is based. Credit shall include credit for time spent in custody prior to trial, during trial, pending sentence, and pending the resolution of an appeal.
(2) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody under a prior sentence if he is later reprosecuted and resentenced for the same offense or for another offense based on the same act or acts. This shall include credit in accordance with paragraph (1) of this section for all time spent in custody as a result of both the original charge and any subsequent charge for the same offense or for another offense based on the same act or acts.
(3) If the defendant is serving multiple sentences, and if one of the sentences is set aside as the result of direct or collateral attack, credit against the maximum and any minimum term of the remaining sentences shall be given for all time served in relation to the sentence set aside since the commission of the offenses on which the sentences were based.
(4) If the defendant is arrested on one charge and later prosecuted on another charge growing out of an act or acts that occurred prior to his arrest, credit against the maximum term and any minimum term of any sentence resulting from such prosecution shall be given for all time spent in custody under the former charge that has not been credited against another sentence.

42 Pa.C.S. § 9760. The statute is amplified by the Rules of Criminal Procedure, which provide:

(b) A sentence to imprisonment shall be deemed to commence and shall be computed from the date of commitment for the offense or offenses for which such sentence is imposed, which date shall be specified by the judge. Credit, to be calculated by the clerk of court, shall be given as provided by law for any days spent in custody by the defendant for such offense or offenses prior to the imposition of sentence.

Pa.R.Crim.P. 1406(b).

The decided cases have held generally that a defendant shall be given “credit for any days spent in custody prior to the imposition of sentence, but only if such commitment is on the offense for which sentence is imposed. Credit is not given, however, for a commitment by reason of a separate and distinct offense.” Commonwealth ex rel. Bleecher v. Rundle, 207 Pa.Super. 443, 445, 217 A.2d 772, 774 (1966). See: Commonwealth v. Schartner, 227 Pa.Super. 401, 323 A.2d 237 (1974); Commonwealth v. Presogna, 226 Pa.Super. 485, 313 A.2d 360 (1973); Commonwealth v. Ulmer, 211 Pa.Super. 193, 238 A.2d 38 (1967). See also: Commonwealth v. Hollawell, supra at 46-48, 604 A.2d at 725-726. Commonwealth v. Clark, 238 Pa.Super. 444, 450, 357 A.2d 648, 651 (1976) (plurality opinion).

As such, appellant was clearly entitled to receive credit for the eight days that he was in custody prior to posting bail on the drug charge. Appellant argues that, under 42 Pa.C.S. § 9760(4), he was also entitled to receive credit for the one hundred and seventy-four (174) days during which he was in custody for the unrelated aggravated assault and robbery charges. He asserts that under subsection (4) of the statute, credit must be given for all pre-sentence time spent in custody, even time served on unrelated charges, where credit has not otherwise been given therefor. Because he was acquitted of the unrelated aggravated assault and robbery charges, appellant contends, he did not receive credit against any other sentence for the time he was in custody on these charges; and, therefore, his argument concludes,' he must be given credit under § 9760(4) against his sentence for delivery of a controlled substance. We disagree.

Pursuant to 42 Pa.C.S. § 9760(4), credit is to be awarded if, on the date of the defendant’s arrest on charges for which he is being sentenced, he was already incarcerated for unrelated charges for which he was not given credit on any other sentence. In such circumstances, the defendant must be given credit for time served from the date of his arrest on the subject charges until the date of his sentencing for those charges, even though he was already incarcerated on unrelated charges on the date of his arrest. Principally, subsection (4) of the statute has been applied in situations where the defendant is in custody in another county or state on unrelated charges at the time he is arrested by the authorities in the sentencing county, and where he has not received credit against any other sentence for the time spent in custody in such other county or state. See: Commonwealth v. Little, 417 Pa.Super. 505, 612 A.2d 1053 (1992); Lantzy v. Commonwealth, 44 Pa.Commw. 396, 403 A.2d 1069 (1979). See also: Commonwealth v. Frank, 263 Pa.Super. 452, 476 n. 10, 398 A.2d 663, 675 n. 10 (1979).

In Commonwealth v. Little, supra, 417 Pa.Super. 505, 612 A.2d 1053, the defendant had been incarcerated in Allegheny County on unrelated charges at the time of his arrest in Centre County for theft and related charges. When defendant pleaded guilty to the theft charge and was sentenced in Centre County, he sought credit for time served while he was incarcerated in Allegheny County prior to his being sentenced in Centre County. The trial court refused to award credit for time served on grounds that the defendant’s incarceration in Allegheny County had been on wholly unrelated charges. On appeal, the Superior Court reversed. It concluded as follows:

[B]y reading § 9760(4) together with the provisions of § 9760(1), a defendant will be issued credit for the period of time confined in a different jurisdiction, which has not been credited, and which can be attributed to the pending criminal charges. By this' statement we hold that Appellant' must be given credit for the time spent in Allegheny County, following the date of his arrest on the Centre County charges, (January 23, 1991), until the date he was sentenced on the Centre County charges (April 8, 1991).

Commonwealth v. Little, supra at 509-510, 612 A.2d at 1055 (footnote omitted).

Under the facts of the instant case, however, 42 Pa.C.S. § 9760(4) is inapplicable. Here, appellant was not in custody for any other charges at the time he was arrested for delivery of a controlled substance. He had been arrested on the drug charge on March 26, 1993, and had posted bail on April 2, 1993. From the moment he posted bail on the drug charge and was released, appellant was no longer in custody on that charge. Therefore, when he was later arrested on unrelated charges and spent time in prison awaiting trial thereon, he was not entitled to credit on account of the drug charge. As to such charge he was free on bail and did not serve time. See: Commonwealth v. Schwartz, 251 Pa.Super. 36, 40, 379 A.2d 319, 321 (1977).

Therefore, the trial court did not err by refusing to award appellant credit for time served as a result of his being incarcerated during the period from July 24, 1993 until January 13, 1994. This period of custody resulted solely from appellant’s arrest for unrelated charges of aggravated assault and robbery and was in no way attributable to the drug charge for which appellant was subsequently sentenced.

The order of the trial court, as modified on August 17, 1994, is affirmed.

      . A similar order denying a petition to receive credit for time served was deemed to be a final and appealable order in Commonwealth v. Hollawell, 413 Pa.Super. 42, 604 A.2d 723 (1992). There, the Superior Court observed that “where an appellant challenges the trial court’s failure to award credit for time served prior to sentencing, the claim involves the legality of sentence. A claim challenging the legality of sentence is appealable as of right.” Id. at 45, 604 A.2d at 725 (citation omitted). Cf. Commonwealth v. Perry, 386 Pa.Super. 534, 537-538, 563 A.2d 511, 512-513 (1989).

      . As a general rule, a trial court is without authority to modify a sentence after an appeal has been filed or thirty days has passed from the entry of the judgment of sentence. Commonwealth v. Bogden, 364 Pa.Super. 300, 304, 528 A.2d 168, 169-170 (1987); Commonwealth v. Lynch, 304 Pa.Super. 248, 251, 450 A.2d 664, 666 (1982). See: 42 Pa.C.S. § 5505. However, it is clear that "[t]he trial court unquestionably possesses the inherent power to correct an unlawful sentence at any time.” Commonwealth v. Hollawell, supra, 413 Pa.Super. 42, 604 A.2d 723. See also: Commonwealth v. Pastorkovic, 390 Pa.Super. 1, 7, 567 A.2d 1089, 1092 (1989); Commonwealth v. Ward, 340 Pa.Super. 1, 7-8, 489 A.2d 809, 812 (1985); Commonwealth v. Horsman, 239 Pa.Super. 534, 537-538, 361 A.2d 433, 434-435 (1976).

      . The charges in Allegheny County were subsequently nol prossed.

      . Whether the statute should be amended to require credit for time served under circumstances similar to those in the instant case is for the legislature to determine.


author: SAYLOR, Judge:

text:
    655 A.2d 1004
    Francis POSSESSKY, Appellant, Franklin C. DIEM and Barbara A. Diem, Husband and Wife; and Frank L. Diem and Cindy A. Diem, Husband and Wife, Appellees. (Two Cases.) Francis POSSESSKY, Appellee, Franklin C. DIEM and Barbara A. Diem, Husband and Wife; and Frank L. Diem and Cindy A. Diem, Husband and Wife, Appellants. Francis POSSESSKY, Appellee, Franklin C. DIEM and Barbara A. Diem, Husband and Wife; and Frank L. Diem and Cindy A. Diem, Husband and Wife, Appellants.
    Superior Court of Pennsylvania.
    Argued Nov. 15, 1994.
    Filed Feb. 28, 1995.

      John L. Sampson, Lancaster, for Francis Possessky.
    Cynthia B. Blakeslee, Leola, for Franklin and Barbara Diem and Frank and Cindy Diem.
    Before CAVANAUGH, POPOVICH and SAYLOR, JJ.
   SAYLOR, Judge:

This is an appeal from an order entered in the Court of Common Pleas of Lancaster County denying Appellant, Francis Possessky, an easement by implication or necessity, denying the motion of Appellees, Franklin and Barbara Diem and Frank and Cindy Diem, to vacate summary judgment entered in favor of Possessky, and denying Appellees’ petition for costs, attorneys fees and civil penalty.

Possessky claims an easement by necessity or implication across lands (Tracts B and C) owned by Franklin and Barbara Diem and Frank and Cindy Diem. On February 28, 1991, Possessky purchased property (Tract A) from Delores E. Russell, widow of Curtis M. Russell. Tract A consists of dense woodlands, is bordered by a tree fence line, and lacks road frontage. Possessky is also a joint owner with his wife of a tract of land which is contiguous to and lies north of Tract A, bordering upon a private road.

Franklin Diem purchased his property (Tract C) on April 21, 1964, from E & G Brooke Land Company. On September 21, 1965, Franklin Diem deeded Tract C to himself and his wife, Barbara Diem. Tract C has road frontage along Narvon Road, and is located adjacent to the southeast of Tract A.

Frank Diem purchased his property (Tract B) from Ruth N. Russell on July 24, 1986. Subsequently, on September 26, 1989, Frank Diem deeded the property to himself and his wife, Cindy Diem. Tract B is located to the northeast of Tract A, directly north of Tract C, and has road frontage on Narvon Road. The easement in dispute is a lane located between Tracts B and C, running from Narvon Road to Tract A. The lane connects Tract A to Narvon Road, a public road.

The relevant factual history with respect to the three tracts of land is as follows: in the early 1800’s, Samuel Weaver was the owner of a parcel of land which included Tracts A, B, and C. Samuel Weaver was the last common owner of all of the tracts of land in question. On March 7, 1839, Samuel Weaker conveyed Tract A to George Russell, son of Thomas Russell. On the same date, Samuel Weaver conveyed a tract of land which included Tracts B and C to Thomas Russell. In the transfer from Samuel Weaver to George Russell, there was no grant of a right of way over the lands of Thomas Russell. Additionally, the deed from Samuel Weaver to Thomas Russell did not reserve a right of way for the benefit of the land conveyed to George Russell, which is now owned by Francis Possessky.

Tract A at one time contained a barn and a log cabin. The log cabin and homestead on Tract A were last inhabited in the early 1900’s. Since the early 1900’s, the lane through Tracts B and C was commonly used without objection to access Tract A for hunting, fishing, farming, and Russell family reunions. In the 1970’s, Curtis M. Russell and Delores Russell cut a path through a line of trees to permit access from the north for the machinery of a local farmer who farmed Tract A. Although Possessky could use the farm lane which runs through his property, he prefers to use the lane passing between the Diems’ properties (Tracts B and C) as a matter of convenience.

Tracts B and C were first subdivided in 1956. E & G Brooke Land Company, the last common owner of both Tracts B and C, conveyed Tract B on December 26, 1956 to George D. Russell, Sadie M. Russell and Ruth N. Russell, Frank and Cindy Diem’s predecessors in title. The deed from E & G Brooke Land Company to the Russells in 1956 contains the first reference to a right of way involving the land owned by Frank and Cindy Diem. The trial court held that the right of way referenced in the deed, however, was not for the benefit of Tract A. The deed contained the following language: “and along residue property belonging to the E & G Brooke Land Company, and along the center line of an existing Right of Way leading to property of Curtis M. Russell and Dolores E. Russell, his wife, the three (3) following courses and distances ...” On July 24, 1986, Ruth Russell, the sole owner of Tract B following Sadie Russell’s death in 1977, deeded Tract B to Frank L. Diem. The deed by which Frank Diem took title to Tract B described its southern boundary as running “along the center line of an existing right-of-way leading to the property now or late of Curtis M. Russell and Dolores E. Russell, his wife ...”

On April 21,1964, Franklin Diem purchased Tract C from E & G Brooke Land Company and the deed referenced a right of way. Additionally, when Franklin Diem conveyed Tract C over to himself and his wife, Barbara Diem, on September 21, 1965, the deed contained the same language regarding a right of way as the April 21, 1964 deed. As a result of the title search of Tract A, Possessky was put on notice that rights of any definite ingress or egress were not insured. Following Curtis Russell’s death in 1979, Dolores Russell sold Tract A to Francis Possessky individually on February 28, 1991. Shortly thereafter the Diems blocked the lane.

Possessky filed a complaint alleging that an easement by implication or necessity existed across the Diems’ land and the Diems should be prohibited from interfering with Possessky’s use of the easement. The Diems filed an answer to Posses-sky’s complaint and raised two counterclaims, alleging that Possessky brought the action without basis and in bad faith. The first counterclaim sought costs, attorney fees, and civil penalties pursuant to 42 Pa.C.S.A. § 8355 and alleged that the Pennsylvania Supreme Court exceeded its authority by suspending 42 Pa.C.S.A. § 8355. The second counterclaim sought counsel fees and the cost of the actions under 42 Pa.C.S.A. § 2503(9). Possessky then filed an amended complaint which was answered by the Diems. On April 9, 1992, Possessky filed a motion for summary judgment with respect to the Diems’ counterclaims which was granted by the trial court. The Diems filed a notice of appeal to the Superior Court and the Superior Court granted Possessky’s motion to quash the appeal as interlocutory.

A trial was held and at its conclusion the trial court, in a decree nisi, determined that Possessky was not entitled to an easement over the lands of the Diems and denied Posses-sky’s request that the Diems be enjoined from obstructing the easement. Both parties filed exceptions which were denied by order dated March 8, 1994, which entered the decree nisi as a final order. The trial court also denied the Diems’ petition for costs, fees, and civil penalty pursuant to 42 Pa.C.S.A. § 8355 and the Diems’ motion to vacate summary judgment. It is from these respective orders that both parties now appeal.

Possessky raises the following issues on appeal: 1) Whether the trial court erred in concluding that an easement by implication cannot be created by a simultaneous conveyance without a specific reference in the deed; 2) Whether the trial court erred in failing to consider the traditional test for determining the existence of an easement by implication; 3) Whether the trial court erred in finding that an easement by necessity fails to exist; 4) Whether the trial court erred in admitting into evidence defendants’ expert’s testimony; and 5) Whether the trial court erred in admitting into evidence exhibits and testimony which were irrelevant to the dispute.

In their cross-appeal, the Diems raise six issues. In essence, the Diems contend that the trial court erred in granting summary judgment against them on their counterclaims and in denying their motion to vacate the summary judgment. The Diems also claim that the trial court erred in denying their petition for costs, attorney fees and civil penalty at the conclusion of the trial.

In his first three issues, Possessky contends that the trial court erred in determining that he is not entitled to either an easement by implication or necessity across the land of the Diems and that the trial court erroneously failed to apply the traditional test for determining the existence of an easement by implication. The trial court held that an easement by implication does not exist over Tracts B and C because Samuel Weaver conveyed Tracts B and C on the same date. The trial court, relying upon Maioriello v. Arlotta, 364 Pa. 557, 73 A.2d 374 (1950), reasoned that an easement by implication cannot be created over properties conveyed by a common grantor on the same date, as it is impossible to determine that a servient estate was intended to be created without a specific reference in the deed. Additionally, the trial court determined that Possessky was not entitled to an easement by necessity because Tract A is not landlocked; Possessky can access Tract A through his own land which is contiguous to and lies to the north of Tract A.

“Our scope of review in matters of equity is narrow and limited to determining whether the findings of fact are supported by competent evidence, whether an error of law has been committed or whether there has been a manifest abuse of discretion.” Sentz v. Crabbs, 428 Pa.Super. 205, 630 A.2d 894 (1993) (citation omitted). An easement by implication “can be found to exist where the intent of the parties is demonstrated by the terms of the grant, the property’s surroundings and any other res gestae of the transaction.” Sentz v. Crabbs, 428 Pa.Super. 205, 209, 630 A.2d 894, 895-896 (1993) (citation omitted).

In determining whether an easement has been created by implication, Pennsylvania courts have utilized two different tests: the traditional test and the Restatement test.

The traditional test has been described as follows: “Three things are regarded as essential to create an easement by implication on the severance of the unity of ownership in an estate; first, a separation of title; second, that, before the separation takes place, the use which gives rise to the easement, shall have been so long continued, and so obvious or manifest, as to show that it was meant to be permanent; and third, that the easement shall be necessary to the beneficial enjoyment of the land granted or retained. To these three, another essential element is sometimes added, — that the servitude shall be continuous and self-acting, as distinguished from discontinuous and used only from time to time.” Id. [Becker v. Rittenhouse, 297 Pa. 317] at 325, 147 A. [51] at 53 [1929], See also DePietro v. Triano, 167 Pa.Super. 29, 31-32, 74 A.2d 710-11 (1950).

Mann-Hoff v. Boyer, 413 Pa.Super. 1, 8, 604 A.2d 703, 706-707 (1992), allocatur denied, 531 Pa. 655, 613 A.2d 560 (1992), citing Owens v. Holzheid, 335 Pa.Super. 231, 484 A.2d 107 (1984) (Montemuro, J., dissenting).

The Restatement test, which was expressly adopted in Pennsylvania in Thomas v. Deliere, 241 Pa.Super. 1, 359 A.2d 398 (1976), “emphasizes a balancing approach, designed to ascertain the actual or implied intention of the parties. No single factor under the Restatement approach is dispositive. Thus, the Restatement approach and the more restrictive tests ... co-exist in Pennsylvania.” (citations omitted) Mann-Hoff v. Boyer, supra, 413 Pa.Super. at 8, 604 A.2d at 707.

' Section 476 of the Restatement of Property designates the following factors as important in determining whether an easement by implication exists:

(a) whether the claimant is the conveyor or the conveyee,
(b) the terms of the conveyance,
(c) the consideration given for it,
(d) whether the claim is made against a simultaneous conveyance,
(e) the extent of necessity of the easement to the claimant,
(f) whether reciprocal benefits result to the conveyor and the conveyee,
(g) the manner on which the land was used prior to its conveyance, and
(h) the extent to which the manner of prior use was or might have been known to the parties.

Mann-Hoff v. Boyer, supra, 413 Pa.Super. at 8-9, 604 A.2d at 707 (1992), citing Owens v. Holzheid, 335 Pa.Super. 231, 484 A.2d 107 (1984) (Montemuro, J., dissenting). “The extent to which an easement is necessary under the circumstances is a factor heavily weighed in determining whether an easement should be implied.” Tomlinson v. Jones, 384 Pa.Super. 176, 179, 557 A.2d 1103, 1104 (1989).

Additionally, when a right is of ancient origin and is too remote to be capable of direct proof “a relaxed burden of proof falls upon one claiming such rights.” Owens v. Holzheid, 335 Pa.Super. 231, 238, 484 A.2d 107, 111 (1984); Tomlinson v. Jones, 384 Pa.Super. 176, 557 A.2d 1103 (1989).

In determining whether an easement by implication exists in this case, under either the traditional or Restatement test, the pertinent focus is on the time of the conveyance of Tracts B and C from their common owner, Samuel Weaver, to George Russell and Thomas Russell, Mann-Hoff v. Boyer, 413 Pa.Super. 1, 604 A.2d 703 (1992), since an easement by implication could only have arisen at the time at w'hich the ownership of the two tracts first became separated.

Although the trial court relied upon Maioriello v. Arlotta, supra, in determining that Possessky was not entitled to an easement by implication, rather than applying the traditional or Restatement test, a review of the facts demonstrates that under either test Possessky is not entitled to an easement by implication. Under the traditional test, Possessky would be required to prove that at the time of separation of title, there was an open, visible, continuous and permanent use of the alleged easement, and that the easement was necessary to the beneficial enjoyment of the property conveyed. Posses-sky failed to prove the requisite use required to establish an easement by implication. The deeds by which Samuel Weaver conveyed Tract A to George Russell and Tracts B and C to Thomas Russell in 1839 did not expressly grant George Russell an easement over the lands of Thomas Russell. Furthermore, regarding the question of use, there is scant evidence that there was open, visible, continuous and permanent use of the lane. Although Delores Russell testified that the lane was the only access to the log cabin built on Tract A in the early 1800’s by the Russells, after a thorough review of the record, we find no evidence that the lane was used continuously and permanently by the Russell family prior to the 1839 conveyance by Samuel Weaver.

In addition, there is no evidence that the lane was necessary for the beneficial enjoyment of Tract A by George Russell. When Samuel Weaver conveyed Tract A to George Russell and Tracts B and C to Thomas Russell, Samuel Weaver retained land to the south and east of these tracts which provided access to Narvon Road. George Russell therefore had no need for an easement across the land conveyed to Thomas Russell (Tracts B and C) because he still had access to Narvon Road by traveling south and east along the lands retained by the common grantor, Samuel Weaver. Furthermore, even if George Russell traveled over the lands of Thomas Russell, his father, his use of the land was presumptively permissive.

Applying the more flexible balancing approach of the Restatement, we also find that no easement by implication arose as a result of the conveyance from Samuel Weaver to George Russell. Utilizing the factors set forth in the Restatement of Property, we note that the deed from Samuel Weaver to George Russell did not grant- George Russell an easement over the lands which were conveyed to Thomas Russell on the same day. Additionally, there was no testimony or evidence that any consideration was given by George Russell in exchange for the use of the right of way. With respect to the factor of necessity, George Russell was capable of accessing Narvon Road from Tract A without using the lane across Thomas Russell’s property. George Russell could travel over the lands of his grantor, Samuel Weaver, and access Narvon Road to the south of Thomas Russell’s land. An easement across Thomas Russell’s land was therefore not necessary for the beneficial enjoyment of Tract A by George Weaver. There is also no evidence that Samuel Weaver would have received any reciprocal benefits as a result of granting George Russell an easement over Tracts B and C. Furthermore, no evidence or testimony exists as to the manner in which Samuel' Weaver used Tracts A, B and C prior to conveying the property to George and Thomas Russell, or the extent to which George or Thomas Russell knew about the prior use of the land. Thus Possessky has failed to prove the existence of an easement by implication by reference to the Restatement test.

Possessky also claims that he is entitled to an easement by necessity across Tracts B and C to access Tract A. With respect to an easement by necessity, “[i]t is a well-settled principle of law that, in the event property is conveyed and is so situated that access to it from the highway cannot be had except by passing over the remaining land of the grantor, then the grantee is entitled to a way of necessity over the lands of his grantor.” Soltis v. Miller, 444 Pa. 357, 359, 282 A.2d 369, 370 (1971), quoting Borstnar v. Allegheny County, 332 Pa. 156, 159, 2 A.2d 715, 716 (1938). “For an easement by necessity to arise, there must be a unity of ownership of the dominant and servient estate, and the necessity must exist at the time of severance of the land.” In re Private Road in Union Township, 148 Pa.Cmwlth. 522, 526, 611 A.2d 1362, 1364 (1992), citing Bosch v. Hoffman, 42 Pa.Super. 313 (1910). “A right of way by necessity never exists as a mere matter of convenience.” Stein v. Bell Telephone Co. of Pennsylvania, 301 Pa. 107, 111, 151 A. 690, 691 (1930). Furthermore, an easement by necessity is extinguished when the necessity from which it resulted ceases to exist. Dulaney v. Rohanna Iron and Metal, Inc., 344 Pa.Super. 45, 495 A.2d 1389 (1985).

In this case, when Samuel Weaver deeded Tract A to George Russell in 1839, an easement across Thomas Russell’s lands (Tracts B and C) was not necessary because George Russell was capable of accessing Tract A by traveling over the lands of his grantor, Samuel Weaver, which lay to the south of Thomas Russell’s land. George Russell thus was not entitled to an easement by necessity at the time that Samuel Weaver severed his lands. Even if we were to find that an easement by necessity existed at the time of Samuel Weaver’s conveyance to George Russell in 1839, Possessky is not entitled to such an easement today because the necessity has ceased to exist. The trial court correctly determined that Possessky is not entitled to an easement by necessity because he is not landlocked. Possessky can access Tract A by traveling over property which he and his wife own to the north of Tract A; therefore the lane which crosses the Diems’ property is not his only means of ingress and egress from Tract A.

Possessky also alleges that the trial court erred in admitting into evidence the testimony of the defendants’ expert. The trial court ruled that the testimony of E. Richard Young, Jr., Esquire, would be limited to a description of the title searches which he conducted and identification of the documents he found, and would not include any opinions on his behalf. Possessky claims that Mr. Young provided expert testimony in the form of an opinion in two instances during his testimony. After a review of the relevant testimony, we find that the trial court did not err in permitting Mr. Young to respond to questions concerning the deeds and chain of title. Rather than providing an opinion as to the location of an easement, Mr. Young was merely explaining the deeds and describing the chain of title involved in this case.

Finally, Possessky contends that the trial court erred by admitting into evidence exhibits and testimony which were irrelevant to the dispute. Possessky alleges that deeds and testimony which were outside the chain of title of both the Possessky’s and the Diems’ properties were admitted into evidence, along with testimony that Possessky allegedly knew when he purchased- Tract A that he had no definite right of access to it. Possessky argues that the deeds which were admitted into evidence were irrelevant because they concerned a southern access to Tract A and thus were outside the chain of title. We disagree. The deeds and testimony concerning Possessky’s alleged knowledge regarding access to Tract A were clearly relevant in determining whether Possessky should have been granted an easement by implication or necessity, and therefore the trial court’s admission of this evidence was proper.

In their cross-appeal, the Diems in essence contend that the trial court erred in granting summary judgment in favor of Possessky on their counterclaims and in denying their motion to vacate the summary judgment granted in favor of Posses-sky.

On review of an order granting summary judgment, we must determine whether the moving party has established that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. In making this determination, we must examine the record in the light most favorable to the non-moving party, who is entitled to the benefit of all reasonable inferences. All doubts as to the existence of a factual dispute must be resolved in favor of the non-moving party and the entry of summary judgment is appropriate only in the clearest of cases.

Brooks v. Sagovia, 431 Pa.Super. 508, 511, 636 A.2d 1201, 1202 (1994), quoting E.J.M. v. Archdiocese of Philadelphia, 424 Pa.Super. 449, 622 A.2d 1388 (1993).

In their second counterclaim, the Diems contend that Possessky brought the action in bad faith because he knew at the time that he purchased Tract A that he had. no definite right of access to it. The Diems argue that the following facts establish that Possessky brought the action in bad faith: 1) the agreement for sale which Possessky signed specifically stated that “It is understood that the Buyer accepts responsibility of securing the right of ingress/egress and the cost of survey, as required;” 2) Possessky received a title report from Land Transfer Co., Inc., which specifically stated “Road frontage not mentioned in description of premises; right of any definite ingress, regress or egress, not insured”; 3) in Posses-sky’s deposition, he stated that he knew access to Tract A was a “gray area”; and 4) Possessky was capable of accessing Tract A from the north across property which he and his wife owned, but Possessky wanted to access Narvon Road across the Diems’ property for convenience.

The trial court may, upon motion, require a party to pay another participant’s counsel fees if the party’s conduct in commencing the action was arbitrary, vexatious or in bad faith. Santillo [Santilo] v. Robinson, 383 Pa.Super. 604, 557 A.2d 416 (1989); Brenckle v. Arblaster, 320 Pa.Super. 87, 466 A.2d 1075 (1983); 42 Pa.C.S.A. § 2503. However, the intent of the rule permitting the recovery of counsel fees is not to punish all of those who initiate actions which ultimately fail, as such a course of action would have a chilling effect upon the right to raise a claim. Santillo [Santilo] v. Robinson, supra. Rather, the aim of the rule is to sanction whose who knowingly raise, in bad faith, frivolous claims which have no reasonable possibility of success, for the purpose of harassing, obstructing or delaying the opposing party.

Dooley v. Rubin, 422 Pa.Super. 57, 65, 618 A.2d 1014, 1018 (1993).

In this case, although Possessky knew that his right of access was not insured, the record does not indicate that Possessky brought this action believing that he had no reasonable possibility of succeeding. Possessky cannot be penalized for bringing an action which was not ultimately successful. Thus, we find no error in the trial court’s grant of summary judgment in favor of Possessky on the Diems’ counterclaims for costs and fees.

The order entering the decree nisi as a final decree is affirmed. The order granting summary judgment is affirmed. The order denying the motion to vacate summary judgment is affirmed. The motion to dismiss the appeal is denied.

CAVANAUGH, J., concurs in the result.

      . On October 19, 1994, the Diems filed a motion to dismiss Possessky's appeal as moot claiming that Possessky now has access to his land by virtue of a deed of easement recorded on August 8, 1994. Such deed granted Possessky an express easement of ingress and egress along an existing private road to the north of Possessky’s property. The Diems claim that as a result of Possessky's express easement he is no longer landlocked and entitled to an easement by implication or necessity across their land.
      The Rules of Appellate Procedure provide that “[tjhe original papers and exhibits filed in the lower court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the lower court shall constitute the record on appeal in all cases.” Pa.R.A.P. 1921. We may consider only material duly certified in the record transmitted to us by the trial court. Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974). A party to an appeal cannot therefore file a supplemental record containing documents which were not included in the record certified from the trial court and were not part of the evidence considered by the trial court in making its decision. See, General Acc. Fire and Life Assur. Corp. v. Flamini, 299 Pa.Super. 312, 445 A.2d 770 (1982).
      Here, the deed of easement which granted Possessky an express easement was not recorded until after this appeal was filed with the Superior Court. Since this evidence was neither part of the trial record nor considered by the trial court in reaching its decision, we will not consider it on appeal and the Diems’ motion to dismiss the appeal as moot is denied.

      . In Hann v. Saylor, 386 Pa.Super. 248, 562 A.2d 891 (1989), the Superior Court noted that the formulations of the traditional test that require a showing of necessity do not mean to require a showing of absolute necessity, but rather require only that the claimed easement be shown to be convenient or beneficial to the dominant estate.