author: CAVANAUGH, Judge:

text:
    610 A.2d 48
    Darrel KING and Hazel King, his wife, Appellant, v. Dorothy ROCK and Russell Brady, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 15, 1992.
    Filed June 8, 1992.
    Reargument Denied Aug. 12, 1992.

      Simon B. John, Uniontown, for appellant.
    Maria S. Altobelli, Uniontown, for appellee.
    Before CAVANAUGH, WIEAND and HESTER, JJ.
   CAVANAUGH, Judge:

This appeal is from an order finding that appellees, Dorothy Rock and Russell Brady, hold an easement by implication over the entire width and length of an undedicated roadway. Appellant, Hazel King, argues that the evidence does not establish an easement by implication. King maintains that there was no showing the existence of a boundary road between her property and that of appellees.

The facts found by the lower court, and supported by the record, are as follows:

1. Plaintiffs, Darrel King and Hazel King, are husband and wife and reside on, and own 1.802 acres of land in Georges Township, Fayette County.
2. Defendant, Dorothy Rock, owns 6.9 acres of land in Georges Township, which adjoins plaintiffs’ property to the southeast.
3. Defendant, Russell Brady, owns 27.775 acres of land in Georges Township, which adjoins plaintiffs’ property to the northwest.
4. Plaintiffs received their property by deed dated June 6, 1976, from E.L. Morgan.
5. Defendant Brady received his property by deed dated May 14, 1976, from E.L. Morgan.
6. Defendant Rock acquired title to her parcel of land by deed dated October 18, 1967, from Joseph Farr.
7. Defendant Brady's and plaintiffs’ property was incorporated in the deed of E.L. Morgan.
8. E.L. Morgan had acquired title to the property which was eventually conveyed to defendants and plaintiffs by deed dated May 21, 1947, from Ernest G. Means and Alice Means, his wife.
9. The Means’ deed refers to a road as a boundary between the two (2) tracts of land now owned by the plaintiffs and defendants.
10. Defendant Rock’s deed makes reference to a public road as a boundary.
11. The road referred to in the Means’ deed can be found on a Georges Township road map as Township Road 504, which connects State Route 26083 with Township Road 345.
12. Township Road 504 has never been dedicated or opened by the township.

Lower Court Opinion, October 15, 1990 at 1-2.

Appellant sought an injunction to bar the use of the land in question by appellees. After a trial in equity, the court found that there existed an easement in the use of the land.

The scope of review in equity action is as follows:

The trial judge, sitting in equity as a chancellor, is the ultimate fact-finder. The scope of review, therefore, is limited. The final decree will not be disturbed unless the chancellor committed an error of law or abused his or her discretion. The findings of fact made by the trial court will not be disturbed unless they are unsupported by competent evidence or are demonstrably capricious.

Roberson v. Davis, 397 Pa.Super. 292, 295, 580 A.2d 39, 40 (1990) (citations omitted).

An injunction will issue where the party seeking to stop an invasion of his real property has a clear right to the property in question. Williams v. Bridy, 391 Pa. 1, 136 A.2d 832 (1957).

The existence of an easement by implication can be found, “ ‘where the intent of the parties is clearly demonstrated by the terms of the grant, the surroundings of the property and other res gestae of the transaction.’ See Hann v. Saylor, 386 Pa.Super. 248, 251-52, 562 A.2d 891, 893 (1989); Buffington v. Buffington, 390 Pa.Super. 61, 568 A.2d 194 (1989); Tomlinson v. Jones, 384 Pa.Super. 176, 557 A.2d 1103 (1989).” Mann-Hoff v. Boyer, 413 Pa.Super. 1, 604 A.2d 703, 707 (Pa.Super.1992).

Where a deed makes reference to a road or driveway as a boundary, the following specific rule applies:

Here we are concerned with a specific application of the rule which holds that “where descriptions in a deed refer to a driveway as a boundary, which is not a highway or dedicated to public use, the grantee does not take title in fee to the center of it but by implication acquires an easement or right of way over the lands.” McAndrews v. Spencer, 447 Pa. 268, 270-271, 290 A.2d 258, 259 (1972), quoting Taylor v. Gross, supra, 195 Pa.Super. [225] at 231, 171 A.2d [613] at 617 [ (1961) ]. In such cases, the easement is created by implication by application of this specific rule. It is from the specific rule that the intent of the parties is inferred. [Citations omitted.]

Auman v. Grimes, 364 Pa.Super. 243, 246, 527 A.2d 1045, 1046-1047 (1987).

Appellant contends that the lower court erred in finding that a road existed as a boundary between the properties. She points to perceived vagueness in the relevant deeds regarding the location of the road or roads referred to in support of the conclusion that a boundary road exists. We find this argument without merit in light of the record created. The lower court had sufficient evidence to conclude that the portion of land cleared by appellees was the road indicated in the parties’ deeds and their predecessor deeds. That evidence included the Georges Township road map, the photographs, the descriptions in the deeds, the testimony of appellee Brady and the site visit. On the basis of the evidence before the lower court, it did not err in finding that a road existed.

Next, appellant argues that the elements of an easement by implication were not shown because the language of the deeds does not create a public road and that any easement in a road, which at one time may have existed, has become impassable and abandoned.

Appellant places undue emphasis on the issue of whether the road was dedicated for public use or not. The correct articulation of the law, as stated in Auman, supra, is that where a non-public roadway is referred to as a boundary, the easement exists over the entire length and width of the roadway. The lower court had the opportunity to view the site and to examine the dimensions of the road. Although it was no longer maintained by the township supervisors as a public road, the court determined that the existence of the easement was not terminated by the township's discontinuance of maintenance. We find no legal error in this conclusion, particularly where the township witness testified that it was only after the instant dispute between the parties arose that all maintenance of the road ceased.

Finally, appellant argues that an injunction should issue because she has a clear right to the property and will suffer legal harm if denied sole use of it. On the basis of the foregoing discussion of the existence of the easement, we find this issue without merit. As discussed above, the evidence showed that appellees had an easement in the use of the boundary road and that they were entitled to take action to remove the physical impediments to the enjoyment of the easement.

Judgment affirmed.

      . In her brief, appellant Hazel King states that her husband, Darrel King, has passed away. There being no substitution of record, we shall refer to Hazel King as appellant.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    610 A.2d 50
    Anthony COVELLO, Appellant, v. WEIS MARKETS, INC., Piqua Engineering Company and Bud Etzler, Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued April 30, 1992.
    Filed June 24, 1992.

      Richard J. Orloski, Allentown, for appellant.
    Paul A. Barrett, Scranton, for Piqua Engineering, appellee.
    William P. Leeson, Bethlehem, for Bud Etzler, Inc., appellee.
    Kathleen J. Haynes, Harrisburg, for Weis Markets, appellee.
    Before OLSZEWSKI, HUDOCK, and BROSKY, JJ.
   OLSZEWSKI, Judge:

Appellant Anthony Covello appeals the order of the Court of Common Pleas of Northampton County, sustaining appellees’ preliminary objections in the nature of a demurrer, and dismissing appellant’s claim for negligent infliction of emotional distress. The issue on this appeal is whether appellant, a police officer, may successfully formulate a cause of action for negligent infliction of emotional distress, the cause of which was watching a young man unrelated to him die as a result of being crushed in an industrial trash compactor. For the following reasons, we find that he cannot state a cause of action for negligent infliction of emotional distress, and affirm the trial court’s order dismissing his complaint.

Initially, we note that our standard of review of an order granting preliminary objections in the nature of a demurrer is:

All material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true____ The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.

Neff v. Lasso, 382 Pa.Super. 487, 490, 555 A.2d 1804, 1305 (1989) (citations omitted). In reviewing the grant of a demurrer we are not bound by the inferences drawn by the trial court nor are we bound by its conclusions of law. Id. Mindful of our standard of review, we proceed to the facts of this case.

Appellant Anthony Covello witnessed a seventeen-year-old boy being crushed to death by a trash compactor at the Weis Market in East Stroudsburg, on January 1, 1988. At that time, Covello was present at the scene in his capacity as an East Stroudsburg police officer, and was attempting to free the decedent from the compactor. Appellant alleges that as a result of witnessing the incident, he suffered severe shock, a nervous breakdown, essential hypertension, endanger damage, post-traumatic stress disorder, dysthymic disorder, and other severe and permanent physical and emotional injuries.

In his complaint, appellant alleges that Weis Market negligently caused his emotional distress because it failed to remove the defective and dangerous machine from its premises, and because it failed to adequately supervise and train the decedent in the correct operation of the compactor. Appellant claims that Weis Market’s negligence resulted in the death of Michael Hucorne, and that witnessing such was the cause of appellant’s emotional distress. (R. at 18a-23a.) Similarly, appellant alleges emotional distress caused by Piqua Engineering and Bud Etzler, Inc., as a result of their defective manufacture and negligent maintenance of the compactor. (R. at 24a-35a.) Appellant claims that his complaint clearly sets forth a cause of action under three theories: (1) the physical impact rule, (2) the zone of danger, and (3) the bystander rule. Appellees, on the other hand, allege that the order granting their preliminary objections was proper because appellant failed to state a cause of action for negligent infliction of emotional distress under any theory.

We find that in order to address the parties’ arguments adequately, it is necessary to review the requirements of the physical impact rule, zone of danger rule, and the rule set forth in Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979) (the “bystander rule”), as they relate to the tort of negligent infliction of emotional distress.

Under the physical impact rule, a plaintiff must plead and prove that he or she suffered a physical injury or impact as a result of nervous shock or emotional distress. Cucinotti v. Ortmann, 399 Pa. 26, 159 A.2d 216 (1960). This is no longer the law in Pennsylvania; appellant, therefore, cannot succeed on this theory. In 1970, our Supreme Court abandoned the strict physical impact requirement.

In Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970), our highest state court abandoned the requirement of a physical impact where the complainant was in personal danger of impact from a negligently created force. The Supreme Court thus established a cause of action for negligent infliction of emotional distress where the complainant’s injury resulted from his or her reasonable fear of injury. This became known as the “zone of danger” rule under which appellant seeks recovery. Appellant’s efforts in this direction are misplaced, however, because he fails to satisfy the requirement that he actually and reasonably feared for his safety, as required by Niederman, supra. In that case, the Supreme Court held:

the requirement of a physical impact [is abandoned] where the plaintiff was in personal danger of physical
impact because of the direction of a negligent force against him and where plaintiff actually did fear the physical impact. Since appellant’s complaint alleges that the negligent force was aimed at him and put him in personal danger of physical impact, and that he actually did fear the force, this case must proceed to trial.

Niederman, 436 Pa. at 413, 261 A.2d at 90. The fact pattern which prompted the Supreme Court’s ruling in Niederman, illustrated in the segment cited above, is unlike the case at bar.

In the instant case, the trial court accepted as true all well-pleaded facts in appellant’s brief, and failed to find that he could reasonably have feared for his safety. Appellant Covello, in his capacity as a police officer, arrived on the scene after the victim had become entrapped. Efforts were already underway to free the victim. (R. at 19a.) The negligent force, in the mechanism of the trash compactor, had already been set into motion and was accomplishing its damage, not upon appellant, but upon the victim. Appellant cannot succeed on the zone of danger theory.

Appellant’s third allegation of error is that the trial court erred by evaluating his claim only under what he refers to as the bystander rule. We disagree; our discussion above of the other two theories advanced by appellant makes plain that this theory is the only one applicable to the case at bar. The “bystander rule” was the theory set forth by the Pennsylvania Supreme Court in Sinn v. Burd, supra. In Sinn, the Court resolved the question whether to permit recovery for emotional distress by a complainant who, while outside the zone of danger, actually witnessed an accident causing serious injury to a close relative. The Court held that recovery was permissible, finding that the Niederman zone of danger rule was too narrow. The Court expressed the view that Niederman precluded recovery on the basis of mere proximity, when the event witnessed outside the zone of danger would produce the same emotional distress. Sinn, 486 Pa. at 167, 404 A.2d at 683. To guard against an enlargement of liability, however, the Supreme Court found it necessary to expound limits, in the form of foreseeability requirements.

The Court set forth three factors which would determine whether the complainant’s injury was reasonably foreseeable:

1. whether the complainant was situated near the scene of the accident as contrasted with one who was a distance away from it;
2. whether the complainant suffered shock as a result of witnessing the accident directly, as contrasted with one who learned about it from others after its occurrence;
3. whether the victim and the complainant were closely related, as contrasted with an absence of any relationship or a distant relationship.

Sinn, 486 Pa. at 170, 404 A.2d at 685 (citations omitted).

Contrary to appellant’s allegation of error, the trial court used the proper theory to resolve appellant’s claim for emotional distress damages. Appellant sustained no physical injury during this incident, nor was he found by the trial court to be reasonably in fear of actual injury (in the zone of danger) from the trash compactor. We find no trial court error for applying the correct theory to evaluate appellant’s emotional distress claim. Our analysis does not end here, however, because appellant finds error in the trial court’s legal interpretation of Sinn.

In his brief, appellant avers that “Sinn v. Burd merely replaced the requirement of observation within the zone of danger with an observation and foreseeability analysis.” (Brief for appellant at 17, emphasis in original.) We emphatically disagree. The Supreme Court’s pronouncement in Sinn was not a mere replacement of the Niederman zone of danger rule. The Supreme Court in Sinn was concerned that there would be no limit to the liability imposed when one individual witnessed another’s injury; therefore, the foreseeability limitation was created, with the familial relationship defining the spectrum of permissible claims. Arguably, the Sinn analysis was designed to ferret out and disallow claims like appellant’s, which do not involve the type of familial relationship resulting in the trauma sought to be compensated by the Sinn Court.

Appellant’s allegations of error are misguided. While we sympathize with appellant’s distress at having witnessed such a gruesome accident, he cannot under these circumstances make out a cause of action for negligent infliction of emotional distress. Accordingly, the trial court’s order sustaining appellees’ demurrer was proper.

Order affirmed.

      . In appellant’s brief to this Court, the rule of Sinn v. Burd is referred to as the "bystander rule”.

      . Appellant’s amended complaint alleges that:
      17. At all times herein relevant, Plaintiff was within the zone of danger at being crushed or otherwise injured by the baling machine in that Plaintiff stood, climbed on, and leaned on the machine in an effort to rescue Michael D. Hucorne.
      18. Plaintiff stood with, spoke to, encouraged and calmed Michael D. Hucorne, while attempt[s] were made to release the victim from between the crushing baler ram and the safety guard and frame of the baler.
      Plaintiff’s amended complaint at 3-4; R. at 19a-20a.


author: HOFFMAN, Judge.

text:
    610 A.2d 53
    Arvilla M. TONER, Appellant, v. NATIONWIDE INSURANCE CO.
    Superior Court of Pennsylvania.
    Argued April 8, 1992.
    Filed June 30, 1992.

      James A. Nettleton, Jr., York, for appellant.
    John D. Briggs, Harrisburg, Donald R. Dorer, Camp Hill, for appellee.
    Before OLSZEWSKI, BECK and HOFFMAN, JJ.
   HOFFMAN, Judge.

This is an appeal from a judgment entered on August 13, 1991, granting judgment on the pleadings in favor of appellee, Nationwide Insurance Company and against appellant, Arvilla M. Toner. Appellant’s sole claim on appeal is that the three (3) year limit of liability for medical expenses provided by 75 Pa.C.S.A. § 1715(a)(5) should be stricken because it conflicts with the stated purpose of the Motor Vehicle Financial Responsibility Law (MVFRL). For the following reasons, we affirm.

Appellant, Arvilla M. Toner, sustained injuries as a result of an automobile accident occurring on August 6, 1986. At the time of the accident, she was insured by appellee, Nationwide Insurance Company. Appellant carried “combined loss benefits” coverage of $277,500.00 pursuant to 75 Pa.C.S.A. § 1715(a)(5). Through 1989, appellee paid in excess of $6,000.00 in benefits to appellant for injuries arising from the accident. However, after August 5,1989, appellee denied responsibility for appellant’s continuing medical expenses, claiming that under § 1715(a)(5), there is a three year limit of liability on continuing medical care. Appellant filed complaint August 3,1990, and appellee filed its answer with new matter on April 1, 1991. Following appellant’s timely response to the new matter, appellee filed a motion for judgment on the pleadings. This motion was granted by an order dated August 13, 1991. The court found that because the three (3) year limit of liability under § 1715 did not produce an absurd result, the clear language of the statute should be enforced. This timely appeal followed.

Appellant’s sole contention is that the three (3) year limit on liability for medical expenses as set forth in 75 Pa.C.S.A. § 1715(a)(5) provides an absurd result which is contrary to public policy and is in conflict with the stated purpose of the MVFRL which is to provide insured persons with reimbursement for medical expenses “all without limitation as to time.” We find appellant’s claim unpersuasive.

Preliminarily, we note that our scope of review is plenary when reviewing a trial court’s decision to grant judgment on the pleadings. Klebach v. Mellon Bank, N.A., 388 Pa.Super. 203, 206, 565 A.2d 448, 449 (1989); Keystone Automated Equip. Co. Inc. v. Reliance Insurance Co., 369 Pa.Super 472, 475, 535 A.2d 648, 649, allocatur denied, 519 Pa. 654, 546 A.2d 59 (1988). Our appellate role is to 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). Judgment on the pleadings may only be granted where no material facts are in dispute and the case is free from doubt so that a trial would clearly be a fruitless exercise. Keystone Automated Equip. Co. Inc., supra.

The complaint filed by appellant indicated that she had “combined loss benefit” coverage pursuant to 75 Pa.C.S.A. § 1715(a)(5), which provides in relevant part:

(a) General Rule-An insurer shall make available for purchase first party benefits as follows:
(5) For combinations of benefits enumerated in paragraphs (1), (2), (3) and (4) and subject to a limit on the accidental death benefit of up to $25,000, and a limit on the funeral benefit of $2,500, up to at least $177,500 of benefits in the aggregate or benefits payable up to three years from the date of the accident, whichever occurs first, provided that nothing contained in this subsection shall be construed to limit, reduce, modify or change the provisions of subsection (d).

75 Pa.C.S.A. § 1715(a)(5) (emphasis added). This provision clearly provides for a three (3) year statute of limitations when an insured elects combined benefits.

Appellant contends, however, that 75 Pa.C.S.A. § 1712(1) which provides for the payment of medical bills “without limitation as to time” is the controlling statutory provision. We disagree.

Our research has revealed no case law comparing the language of § 1712(1) and § 1715(a)(5) of the MVFRL. Consequently, this is an issue of first impression. Preliminarily, we note that, “when a statute is not ambiguous and wording [is] clear then the letter of [the] statute may not be circumvented on the pretext of pursuing its spirit.” Chester v. Government Employees Ins. Co., 302 Pa.Super. 356, 360-61, 448 A.2d 1080, 1082 (1982), reversed on other grounds, 503 Pa. 292, 469 A.2d 560 (1983). Only when the words of a statute are unclear may a court embark upon ascertaining the intent of the legislature by reviewing the necessity of the act, the circumstances under which it was enacted, the mischief to be remedied, the object to be attained by the law and the consequences of a particular interpretation would be. Commonwealth v. Snyder, 385 Pa.Super. 58, 65-66, 560 A.2d 165, 169 (1989).

With these rules of statutory construction in mind, we find that the language of the two statutes in question is clear and unambiguous. The statute can only be interpreted to place a three (3) year limitation on the coverage at issue. This interpretation is directly supported in a treatise discussing the MVFRL entitled, Pennsylvania Motor Vehicle Insurance: An Analysis of the Financial Responsibility Law, (Ronca, et al. 1986), which states that:

[t]he critical difference between the combination benefit and other available benefits is that recovery may only be made for losses incurred within three years from the date of the accident. Section 1715(a) provides as follows: An insurer shall make available for purchase first party benefits as follows:
(5) a combination of benefits enumerated in paragraph (1) through (4) ... up to at least $227,500 of benefits in the aggregate or benefits payable within three years from the date of the accident, whichever occurs first.
Benefits are “payable” upon receipt by the insurer of reasonable proof of the amount of loss. Thus, claims under the combination benefit can only be for losses accrued within three years of the accident. If an insured had elected individual benefit limits, medical expenses and wage loss claims could be made without limit as to time, ... The three year limitation is contained in the statutory notice set forth in Section 1791.

Id. at 35.

Specific and clear statutory language cannot be ignored under the guise of liberal construction or public policy considerations. As the lower court aptly observed:

[As] sympathetic as we are to plaintiffs plea, we have great difficulty in overcoming the hurdles of clear statutory language. Although appellate decisions occasionally apply principles of public policy to insurance cases, Donegal Mutual Insurance Company v. Long, [387] Pa.Super. [574], 564 A.2d 937 (1989), cases generally deal with statutory and policy construction____ Furthermore, [the] Superior Court has said that the Motor Vehicle Financial Responsibility Law, supra, reflects a legislative purpose of restricting, not expanding first party benefits. Huber v. Erie Insurance Exchange, [402] Pa.Super. [443], 587 A.2d 333 (1991).
Thus even though the statute is to be liberally construed, ..., we can’t ignore specific language. 1 Pa.C.S.A. 1921.

Opinion, Spicer, J., August 13, 1991 at 3. Accordingly, we affirm the judgment of the lower court granting judgment on the pleadings in favor of appellee, Nationwide Insurance Company.

Judgment affirmed.

      . The reference to subsection (d) is not material to the disposition of this case. In any event, the reference to subsection (d) was added in 1989 and thus would not have been in effect at the time of the accident in 1986.

      . 75 Pa.C.S.A. § 1712 provides in relevant part:

        An insurer issuing or delivering liability insurance policies covering any motor vehicle of the type required to be registered under this title ... shall make available for purchase first party benefits with respect to injury arising out of the maintenance or use of a motor vehicle as follows:
      (1) Medical benefit-Subject to the limitation of section 1797, coverage to provide for reasonable and necessary medical treatment and rehabilitative services, including, but not limited to, hospital, dental ..., all without limitation as to time, ...

      (5) Combination benefit-A combination of benefits described in paragraphs (1) through (4) as an alternative to the separate purchase of those benefits.

        75 Pa.C.S.A. § 1712(1), (5) (emphasis added).


author: HOFFMAN, Judge:

text:
    610 A.2d 56
    Martin T. GOLIBART t/a M.T. Golibart and Associates. v. G. Randy REAMER and Michael Plunkett, Appellants.
    Superior Court of Pennsylvania.
    Argued April 8, 1992.
    Filed June 30, 1992.
    Petition for Allowance of Appeal Denied Nov. 2, 1992.

      Henry O. Heiser, III, Gettysburg, for appellants.
    Samuel E. Teeter, Gettysburg, for appellee.
    Before OLSZEWSKI, BECK and HOFFMAN, JJ. .
   HOFFMAN, Judge:

This is an appeal from judgment entered on August 1, 1991, denying appellants’ post-verdict motions and upholding a jury verdict for appellee in the amount of thirty-thousand dollars ($30,000.00). Appellants raise two issues for our review:

I. WHETHER THE LOWER COURT SHOULD HAVE DECIDED AS A MATTER OF LAW THAT PLAINTIFF WAS BARRED FROM RECOVERING A FINDER’S FEE BECAUSE HE WAS AN UNLICENSED BROKER WITHIN THE MEANING OF THE REAL ESTATE LICENSING AND REGISTRATION ACT OF 1980?
II. WHETHER THE LOWER COURT ABUSED ITS DISCRETION IN NOT AWARDING DEFENDANTS A NEW TRIAL BECAUSE THE JURY’S DETERMINATION THAT PLAINTIFF’S BUSINESS DEALINGS WITH DEFENDANTS DID NOT INVOLVE A SALE OF REAL ESTATE WAS AGAINST THE WEIGHT OF THE EVIDENCE?

Appellants’ Brief at 3. For the following reasons, we reverse.

Appellants had a contract to purchase a one-hundred-and-seven-acre parcel of land known as the Mallow Tract, located in the Borough of Carroll Valley. They had preliminary sketch plan approval from the Borough to erect approximately three-hundred condominium time-share units. At a meeting between appellants and appellee, appellee indicated that he did not wish to be involved with selling this property, but he was interested in helping to find investors in the development project. Consequently, the parties entered into an oral agreement pursuant to which appellants would pay appellee $30,000.00 if he found an investor or investors. Several weeks later, appellee put Mr. Alexander Ellioff in contact with appellants. The parties met and eventually formed a partnership, consisting of five corporations. Title to the property was later transferred to the partnership.

Appellee sent a letter to appellants requesting payment of the $30,000.00. Appellants refused to pay appellee. Appellee filed a complaint on January 13, 1989, to which appellants filed preliminary objections in the nature of a demurrer. The court granted the preliminary objections without prejudice, because appellee failed to aver that he was a licensed real estate broker in Pennsylvania, a condition precedent to bringing suit for enforcement of a commission agreement. Appellee thereafter filed an amended complaint which withstood further preliminary objections and a motion for summary judgment.

A bifurcated jury trial was conducted on November 29 and 30, 1990. Preliminarily, the court needed to resolve the dispute over whether appellee was involved in the sale of real estate. If he was, then he would be barred from receiving a fee because he was not a licensed real estate broker. According to appellee’s version of the facts, he was retained only to find an investor in the development project, and was not involved with the sale of real estate.

A special interrogatory, which was drafted by appellants, was submitted to the jury:

DO YOU FIND THAT MR. GOLIBART WAS HIRED TO FIND AN INVESTOR WHO WOULD EITHER PURCHASE THE ENTIRE INTEREST OP MR. REAMER AND MR. PLUNKETT [APPELLANTS] IN THE MALLOW TRACT, OR PURCHASE A PART OF THEIR INTEREST AND JOIN WITH THEM IN THE DEVELOPMENT OF THE LAND?

The jury answered “no” to this question. The jury then concluded that appellee was entitled to collect $30,000.00 pursuant to his agreement with appellants. Post-trial motions were filed and denied. This timely appeal followed.

Appellants first contend that the trial court should have decided as a matter of law that appellee was not entitled to recover the fee because he was not a licensed real estate broker. Specifically, they argue that the trial court should have directed the jury to find for appellants, or entered a judgment notwithstanding the verdict. We agree.

It is well-settled that a judgment notwithstanding the verdict may be entered only in a clear case, where after viewing the evidence in the light most favorable to the verdict winner, no two reasonable minds would disagree that the verdict was improper. Scullion v. EMECO Indus., 398 Pa.Super. 294, 298, 580 A.2d 1356, 1358 (1990) (citation omitted), appeal denied, 527 Pa. 625, 592 A.2d 45 (1991); Robertson v. Atlantic Richfield Petroleum Products Co., 371 Pa.Super. 49, 58, 537 A.2d 814, 819 (1987) (citation omitted), allocatur denied, 520 Pa. 590, 551 A.2d 216 (1988). Any doubts should be resolved in favor of the verdict winner. Curran v. Philadelphia Newspapers, Inc., 376 Pa.Super. 508, 516, 546 A.2d 639, 643 (1988) (quoting Geyer v. Steinbronn, 351 Pa.Super. 536, 549, 506 A.2d 901, 908 (1986)), appeal denied, 522 Pa. 576, 559 A.2d 37 (1989).

Similarly, “[i]n reviewing the grant or denial of a motion for a directed verdict, we must determine if ‘an abuse of discretion or error of law which controlled the outcome of the case occurred'____ If so, only then will we reverse.” Fleck v. Timmons, 374 Pa.Super. 417, 426-27, 543 A.2d 148, 153 (1988) (quoting Bucchianeri v. Equitable Gas Company, 341 Pa.Super. 319, 328, 491 A.2d 835, 840 (1985)).

The Real Estate Licensing and Registration Act of 1980, 63 P.S. §§ 455.101-902 (“the Act”) provides that one acting in the capacity of a broker may not recover compensation for such service unless he is licensed. See 63 P.S. §§ 455.-301, 455.302. The term “broker” is defined, in relevant part, as:

Any person who, for another and for a fee, commission or other valuable consideration:
(1) negotiates with or aids any person in locating or obtaining for purchase, lease or acquisition of interest in any real estate;
(2) negotiates the listing, sale, purchase, exchange, lease, time share and similarly designated interests, financing or option for any real estate____

63 P.S. § 455.201.

The issue of whether one is a real estate broker under the Act is a question of law to be decided by the court. See Alford v. Raschiatore, 163 Pa.Super. 635, 642, 63 A.2d 366, 369 (1949). We recognize that “where there is a dispute as to what the relevant facts are, this dispute must be submitted to the jury.” Ferrick Excavating and Grading Co. v. Senger Trucking Co., 506 Pa. 181, 190, 484 A.2d 744, 748 (1984). However, even if we were to adopt appellee’s version of the facts, as the jury apparently did, appellee is nonetheless barred from recovery by the Act.

In Harrison v. Soffer, 221 Pa.Super. 275, 289 A.2d 752 (1972), an en banc panel of this court held that an individual who was not a licensed real estate broker was barred by the Act from recovering a fee for finding investors in a development project similar to that in the instant case. Id., 221 Pa.Superior Ct. at 282-83, 289 A.2d at 756. In so holding, this court broadly construed the definition of broker, stating, “the mere introduction of two willing parties comes within the purview of the statute.” Id., 221 Pa.Superior Ct. at 282, 289 A.2d at 756 (citation omitted). The relevant facts of Harrison are indistinguishable from the present case. See also Boland v. Mullen, 304 Pa.Super. 415, 419, 420, 450 A.2d 749, 750, 751 (1982) (recovery of finder’s fee barred by Act); Alford v, Raschiatore, supra, 163 Pa.Super. at 642, 63 A.2d at 369 (promise of compensation for introducing purchaser of restaurant business not enforceable by unlicensed claimant). In view of this case law, no two reasonable minds could differ as to the result that should be reached here, regardless of whether appellant was involved in finding an investor or selling real estate. Accordingly, the trial court erred in hot directing a verdict or granting judgment notwithstanding the verdict, and we must reverse judgment and order that judgment notwithstanding the verdict be entered.

Judgment reversed; entry of judgment notwithstanding the verdict ordered.

      . We note that these cases construe the Real Estate Brokers License Act of 1929, the predecessor statute to the Real Estate Licensing and Registration Act of 1980. However, the language of the relevant provisions in both statutes is substantially the same.

      . In light of our resolution of appellants’ first issue, it is not necessary for us to reach their second issue.


author: WIEAND, Judge.

text:
    610 A.2d 466
    DONEGAL INSURANCE CO., Appellant, v. Shirley LONGO and Charles W. Longo, her husband, Appellees. DONEGAL INSURANCE CO., Appellee, v. Shirley LONGO and Charles W. Longo, her husband, Appellants.
    Superior Court of Pennsylvania.
    Argued Jan. 14, 1992.
    Filed June 1, 1992.
    Reargument Denied June 12, 1992.

      Richard A. Lanzillo, Erie, for appellant (at 1271) and appellee (at 1311).
    Charles V. Longo, Cleveland, Ohio, for appellant (at 1311) and appellee (at 1271).
    Before CAVANAUGH, WIEAND and HESTER, JJ.
   WIEAND, Judge.

The issue in this appeal is whether a lawyer can serve as an arbitrator while he simultaneously represents one of the parties to the arbitration in a matter unrelated to the arbitration. We hold that he cannot and reverse the judgment entered on an award of arbitration in which he participated.

Shirley Longo sustained injuries when the car in which, she was a passenger was struck from behind by an uninsured motorist. Shirley and her husband, Charles W. Lon-go, submitted a claim for uninsured motorist benefits to appellant, Donegal Mutual Insurance Company, the insurer of their own automobile. Because the parties were unable to agree on the amount of damages, the claim was submitted to arbitration as required by the terms of the Donegal policy.

The arbitration clause in the policy provided as follows: [In the event of arbitration], arbitration shall be conducted in accordance with the Pennsylvania Uniform Arbitration Act. Each party will select an arbitrator. The two arbitrators will select a third. If they cannot agree within thirty (30) days, either may request that election be made by a judge of a court having jurisdiction.
... a decision agreed to by two of the arbitrators will be binding.

Pursuant to this provision, a panel of three arbitrators was appointed and conducted hearings on November 19, 20 and 21, 1990. Shortly thereafter, Donegal learned that the arbitrator selected by the Longos, John R. Wingerter, Esq., was simultaneously representing Charles W. Longo in a landlord-tenant dispute. It also appeared that Wingerter had previously represented a partnership in which Longo was one of three partners and, in addition, had represented the Longo’s son, Charles V. Longo, Esquire, in a civil action. Donegal’s counsel, by letters dated November 27 and 29, 1990, objected to Wingerter’s further participation as an arbitrator and requested that Wingerter recuse himself from the panel. Wingerter refused. On December 17, 1990, he joined with the neutral arbitrator to render an award in favor of the Longos in the amount of two hundred and thirty thousand ($230,000.00) dollars.

Donegal petitioned the trial court to vacate the award on the grounds that the existing and undisclosed attorney-client relationship between the Longos and Wingerter gave rise to a conflict of interest and deprived the insurance company of a fair hearing. The Longos filed a cross-petition for counsel fees, costs and interest. The trial court affirmed the award of the arbitrators and ordered the payment of interest at the rate of 6% per annum. Donegal appealed, and the Longos filed a cross-appeal from the denial of costs and fees.

A party may waive objection to the composition of the arbitration panel if after learning of the grounds for objection that party nevertheless participates in the hearing and withholds objection until the panel renders a decision. See: Abramovich v. Pennsylvania Liquor Control Bd., 490 Pa. 290, 294 n. 3, 416 A.2d 474, 476 n. 3 (1980); Rosenbaum v. Drucker, 346 Pa. 434, 437, 31 A.2d 117, 118 (1943). Here, however, Donegal did not learn of Wingerter’s relationship with the Longos until after the hearings had been concluded. When the relationship became known, Donegal objected immediately and in the only practical manner available to it. Having made its objection unsuccessfully, Donegal could properly await the panel’s decision before proceeding in the Court of Common Pleas to vacate the award. See: Bole v. Nationwide Insurance Co., 475 Pa. 187, 192, 379 A.2d 1346, 1348-1349 (1977). The issue of Wingerter’s competency to serve as an arbitrator, therefore, has not been waived and is properly before this Court for appellate review.

The Uniform Arbitration Act, at 42 Pa.C.S. § 7314, establishes the grounds for vacating an award of statutory arbitration. Section 7314(a)(l)(i) specifically incorporates into the broader statutory scope of review the common law grounds for vacating an award. Under this common law standard, now codified at 42 Pa.C.S. § 7341, an award may be vacated where it is clearly shown that a party has been denied a fair hearing. The hearing to which each party is entitled must be one that is “full and fair.” Abramovich v. Pennsylvania Liquor Control Bd., supra 490 Pa. at 294, 416 A.2d at 476; Smaglio v. Fireman’s Fire Insurance Co., 432 Pa. 133, 247 A.2d 577 (1968); Mellon v. Travelers Insurance Co., 267 Pa.Super. 191, 406 A.2d 759 (1979). “Procedural due process requires that a fair hearing be conducted by one not involved with a party to the proceeding.” Abramovich v. Pennsylvania Liquor Control Bd., supra citing Dussia v. Barger, 466 Pa. 152, 351 A.2d 667 (1976). See also: Morrisey v. Gross Construction Co., Inc., 297 Pa.Super. 151, 159-160, 443 A.2d 344, 348-349 (1982). But cf. Morris Lapidus Associates v. Airportels, Inc., 240 Pa.Super. 80, 84, 361 A.2d 660, 663 (1976).

A hearing which comports with procedural due process must be full and fair and must be held before impartial and disinterested arbitrators. “Since arbitrators are generally selected to act in a quasi-judicial capacity in place of a court, they must ordinarily be impartial and nonpartisan____” 5 Am.Jur.2d, Arbitration and Award, § 98.

If parties are to be encouraged to arbitrate, arbitration proceedings must be conducted with the same degree of impartiality as the courts afford. Public policy requires, therefore, that arbitrators not only be completely impartial but also that they have no connection with the parties or the dispute involved which might give the appearance of their being otherwise. Obviously a person is disqualified to act as an arbitrator if he is himself a party to the dispute. And, in the ordinary case, a close relative, servant, employee, or agent of one of the parties to the controversy, or one who has any secret interest in the result or decision thereof, may not properly act as an arbitrator.

5 Am.Jur.2d Arbitration and Award, § 99.

The hearing in the instant case was not fair and did not comport with procedural due process. Wingerter’s ongoing and undisclosed attorney-client relationship with Charles W. Longo rendered him unqualified to serve on the panel. This was true not merely because he was presumably partisan in favor of the Longos; but, more importantly, because he was an employee of the Longos who owed them a fiduciary duty of loyalty. Wingerter’s legal representation of Charles W. Longo, even though in a matter unrelated to the dispute in arbitration, gave rise to a confidential relationship. See: Ringer v. Finfrock, 340 Pa. 458, 461-462, 17 A.2d 348, 350 (1941). See also: 7A C.J.S. Attorney and Client § 234 (1980). The existence of such a relationship between a litigant and an arbitrator creates too great a likelihood that the arbitrator will be incapable of rendering a fair judgment. Therefore, a lawyer-client relationship between an arbitrator and a party conflicts with basic standards of due process. See: Bole v. Nationwide Ins. Co., supra, 475 Pa. at 195, 379 A.2d at 1350 (Roberts, J. dissenting) (dissent opines that while evident partiality should not require disqualification, a present attorney-client relationship between an arbitrator and a party extends beyond mere partiality and would require disqualification).

Because the arbitration proceedings in this case were fundamentally flawed, the trial court erred when it refused to set aside the award.

Judgment vacated and case remanded for a new hearing before different arbitrators.

      . Charles V. Longo, a lawyer, represented his parents in the instant dispute with Donegal.


text:
    610 A.2d 469
    Lemuel DEARRY, Appellee, v. AETNA LIFE & CASUALTY INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued March 18, 1992.
    Filed June 2, 1992.

      Robin B. Arnold, Philadelphia, for appellant.
    Joel M. Lieberman, Philadelphia, for appellee.
    Before CAVANAUGH, OLSZEWSKI and BECK, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order of the Court of Common Pleas of Philadelphia County, which corrected and modified the award of arbitrators to allow appellee to recover under-insured motorist coverage under a policy issued by appellant, Aetna Life and Casualty Insurance Company [hereinafter “Aetna”]. This matter had been submitted to arbitration; and in a decision dated March 25,1991, the arbitrators held that appellant was not entitled to underinsured motorist benefits. Appellee, Lemuel Dearry, filed a petition to modify and correct the award of arbitrators in the Philadelphia Court of Common Pleas. The court of common pleas entered an order dated May 20, 1991, which reversed the decision of the arbitrators and remanded to the arbitrators for a determination of the benefit owed. Aetna perfected a timely appeal from this order. The court of common pleas subsequently filed an opinion recommending reversal of its prior order. Since we agree with the court of common pleas, we reverse. A discussion of the case follows.

This matter arises out of an automobile accident which occurred in February of 1986. Appellee, Lemuel Dearry, was a passenger in a vehicle operated by Michael Jones. Jones was operating the vehicle with the permission of the vehicle’s owner, Mary Wilkie. The Wilkie vehicle was insured by appellant, Aetna. The accident occurred when the Wilkie vehicle collided with another vehicle in an intersection. The second vehicle was operated by Preston Baldwin. Appellee filed a suit in the Court of Common Pleas of Philadelphia County against Michael Jones, Mary Wilkie, and Preston Baldwin. There was some indication of negligence on the part of both drivers.

Various insurers paid appellee in settlement for the injuries he sustained. Aetna paid the $15,000.00 liability policy limit on Mary Wilkie’s policy. Preston Baldwin’s insurer paid the liability limit on its policy of $50,000.00. Appellee at the time of the accident resided with his parents, and, as a result, collected the $15,000.00 policy limit in underinsured motorist coverage [hereinafter “UIM coverage”] under his parents’ policy. Appellee further sought to recover $15,-000.00 in UIM coverage under Mary Wilkie’s policy with Aetna. Aetna rejected the claim for coverage, and the matter was submitted to arbitration for a determination of whether appellee was entitled to UIM coverage under the Aetna-Wilkie policy. The arbitrators found that appellee was not entitled to UIM coverage under the Aetna-Wilkie policy. The court of common pleas ordered the arbitrators’ decision corrected and modified; but in its opinion, the court of common pleas states that this decision should be reversed. For the following reasons, we agree.

Appellant, Aetna, has raised the following issues for our consideration. Aetna’s first argument is that the lower court erred in applying the statutory arbitration standard of review under 42 Pa.C.S.A. § 7302(d)(2). The trial court agrees with appellant that it applied the wrong standard and that the order should be reversed. We have reviewed the record, the trial court order and opinion, and the briefs in this matter; and we agree that the order should be reversed. Appellant’s second argument is that, regardless of whether the proper standard was applied, appellee was not entitled to UIM coverage because the policy in question contained a set-off clause. That clause provided that Uninsured Motorist coverage [hereinafter “UM coverage”] or UIM coverage would be reduced by any amounts paid under the liability coverage of the policy. Under this clause, because Aetna paid the liability limit under the policy, no UM or UIM coverage would be due. Since the second issue deals with the legal correctness of the decision reached by the arbitrators, it is outside the scope of review of this matter pursuant to our decision above. We will, therefore, not reach the merits of this issue. Popskyj v. Keystone Insurance Co., 388 Pa.Super. 429, 432, 565 A.2d 1184, 1186 (1989).

Pennsylvania has adopted the Uniform Arbitration Act, 42 Pa.C.S.A. §§ 7301-7320 (Purdon’s 1982). This act has not removed common law arbitration as an option to parties in Pennsylvania. 42 Pa.C.S.A. § 7302(a) (Purdon’s 1982).

(a) General Rule.—An agreement to arbitrate a controversy on nonjudicial basis shall be conclusively presumed to be an agreement to arbitrate pursuant to Subchapter B (relating to common law arbitration) unless the agreement to arbitrate is in writing and expressly provides for arbitration pursuant to this subchapter or any other similar statute, in which case the arbitration shall be governed by this subchapter.

Id. In order for an agreement to arbitrate to fall within the Uniform Arbitration Act, two requirements must be met: first, the agreement must be in writing; and second, the agreement must expressly provide for arbitration under the Act. The agreement in question was in writing and provided for arbitration under the Pennsylvania Uniform Arbitration Act. It is clear, therefore, that the Uniform Arbitration Act governed the arbitration in this matter, and governs the lower court’s decision and our decision here.

The question which controls this case is what standard of review must a court apply when reviewing a decision of a board of arbitrators under the act. In the case of a common law arbitration, the standard of review is clearly very limited.

§ 7341. Common law arbitration
The award of an arbitrator in a nonjudicial arbitration which is not subject to Subchapter A (relating to statutory arbitration) or a similar statute regulating nonjudicial arbitration proceedings is binding and may not be vacated or modified unless it is clearly shown that a party was denied a hearing or that fraud, misconduct, corruption or other irregularity caused the rendition of an unjust, inequitable or unconscionable award.

42 Pa.C.S.A. § 7341 (Purdon’s 1982). This section is an enactment of the common law governing arbitration decisions. Id. (Official Source Note.)

In a case where the arbitration is carried out under the prior Pennsylvania statutory arbitration law, the standard is quite different.

§ 171 Modifying or correcting award, grounds
In either of the following cases the court shall make an order modifying or correcting the award upon the application of any party to the arbitration:
******
(d) Where the award is against the law, and is such that had it been a verdict of the jury the court would have entered different or other judgment notwithstanding the verdict.

5 P.S. § 171 (Purdon’s 1983) (repealed). If the arbitration in question were governed by this law, it would be clear that the decision could be reviewed by the court for an error of law. This statute, however, does not control this case.

Under the current statute, although arbitration awards can be reviewed under the error of law standard, the applicability of this standard of review is limited.

§ 7302 Scope of subchapter
******
(d) Special application.—
(1) Paragraph (2) shall be applicable where:
(i) The Commonwealth government submits a controversy to arbitration.
(ii) A political subdivision submits a controversy with an employee or a representative of employees to arbitration.
(iii) Any person has been required by law to submit or agree to submit a controversy to arbitration pursuant to this subchapter.
(2) Where this paragraph is applicable a court in reviewing an arbitration award pursuant to this subchapter shall, notwithstanding any other provision of this subchapter, modify or correct the award where the award is contrary to law and is such that had it been a verdict of a jury the court would have entered a different judgment or a judgment notwithstanding the verdict.

42 Pa.C.S.A. § 7302(d) (Purdon’s 1982). In this case, the question is whether the standard set forth in 42 Pa.C.S.A. § 7302(d)(2) applies. Clearly, neither the Commonwealth nor any political subdivision is involved in this case; therefore, the provisions of § 7302(d)(l)(i) and (ii) are not applicable. The question then is whether the error of law standard is applicable under 7302(d)(l)(iii) because the parties were “required by law to submit or to agree to submit” this controversy to arbitration.

There is no law in the Commonwealth of Pennsylvania which requires that persons involved in a dispute over UM or UIM coverage submit the controversy to arbitration. Further, there is no law in the Commonwealth of Pennsylvania which requires that parties to insurance policies enter an agreement that any dispute surrounding coverage be submitted to arbitration. Appellee, Lemuel Dearry, makes the strained argument that he was required by law to submit this controversy to arbitration as a third-party beneficiary to the contract. Appellee cites Johnson v. Pennsylvania National Insurance Co. for the proposition that as a third-party beneficiary to the contract, he was required to pursue this dispute through arbitration. 527 Pa. 504, 594 A.2d 296 (1991). Appellee is correct in that he was required by the contract to arbitrate his dispute. We do not believe, however, the fact that appellee was required to submit this matter to arbitration by the contract between Aetna and Mary Wilkie automatically invokes the broad scope of review provided for in 42 Pa.C.S.A. § 7302(d)(2). Clearly such a result would be absurd in light of the structure of the statute. If we were to accept appellee’s argument, all persons who enter into a contract which provides that the parties agree to arbitration would be entitled to the broad scope of review provided for in § 7302(d)(2). This result flows naturally from the fact that the law would enforce the agreement to arbitrate as an appropriate choice of forum or remedy. Therefore, any party to an enforceable agreement to arbitrate would be required by law to arbitrate and entitled to the broad error of law standard. Such a result is contrary to the language and structure of the statute.

We find for numerous reasons that this is not a proper interpretation of the statute. First, it is clear that when interpreting a statute the legislative intent controls, and that when determining legislative intent it is presumed that the legislature did not intend an absurd result. 1 Pa. C.S.A.App. §§ 1921 & 1922 (Purdon’s Supp.1991). We believe that the result which appellee requests would be absurd, because if we adopted such a standard it would eliminate the effectiveness of all of the conditions placed on the applicability of the standard of review found in § 7302(d)(2). Second, in determining legislative intent, it is presumed that the legislature intended that the entire statute be effective. 1 Pa,C.S.A.App. § 1922 (Purdon’s Supp. 1991). Appellee’s interpretation would make the condition contained in 42 Pa.C.S.A. § 7302(d)(l)(iii) completely ineffective. Any party to an enforceable agreement to arbitration would be entitled to the broad standard of review contained in § 7302(d)(2). Further, we believe that it is appropriate to examine the prior statute to determine the legislative intent in enacting the current statute. 1 Pa.C.S.A.App. § 1921 (Purdon’s Supp.1991). We find that the prior statute provided for the broad standard of review in all cases involving statutory arbitration, and that the current statute conditions the application of the broad standard of review. Compare 5 P.S. § 171 (Purdon’s 1983) (repealed) and 42 Pa. C.S.A. § 7302(d) (Purdon’s 1982). We find that there was an intent to change this situation and that the interpretation requested by appellee would result in no change from the prior law. We have also reviewed the caselaw in this area, and find that under the caselaw the standard of review set forth in § 7302(d)(2) does not apply to the case before the Court. In Popskyj v. Keystone Insurance Co., 388 Pa.Super. 429, 565 A.2d 1184 (1989) (en banc), this Court decided in a case similar to this one that the broad standard of review was not automatically applicable to the review of a statutory arbitration award. In Popskyj this Court examined the Uniform Arbitration Act to determine when the broad standard of review found in 42 Pa.C.S.A. § 7302(d)(2) was applicable. In Popskyj the Court found that under the Uniform Arbitration Act, it was possible for parties to agree to arbitration and that, in the absence of an agreement to the contrary, the rules of common law arbitration would apply. 42 Pa.C.S.A. § 7302(a) (Purdon’s 1982). The appellant in Popskyj argued, as appellee does here, that because the law will enforce an agreement to arbitrate the parties are “required by law ... to submit a controversy to arbitration____” 42 Pa.C.S.A. § 7302(d)(l)(iii) (Purdon’s 1982). The Court in Popskyj rejected this argument for reasons similar to the reasons we have cited above.

The Court in Popskyj further went on to compare the current Uniform Arbitration Act with its predecessor, the Uniform Arbitration Act of 1927. Compare 42 Pa.C.S.A. § 7302 (Purdon’s 1982) and 5 P.S. § 171 (Purdon’s 1983) (repealed). The Court found that where the prior law applied the broad review for an error of law, standard across the board to all statutory arbitration cases, the current law limited the application of the broad standard. Popskyj, 388 Pa.Superior Ct. at 440, 565 A.2d at 1190. Further, the Court went on to examine the Historical note to the statute and found that it provided insight into the application of the § 7302(d)(2) broad standard of review.

Historical Note

Application:

Section 501(b) of Act 1980, Oct. 5, P.L. 693, No. 142, provides as follows:

“The provisions of 42 Pa.C.S.A. § 7302(d)(2) (relating to special application) shall be applicable to any nonjudicial arbitration pursuant to:
“(1) An agreement made prior to the effective date of this act which expressly provides that it shall be interpreted pursuant to the law of this Commonwealth and which expressly provides for statutory arbitration.”
“(2) An agreement heretofore or here-after made which expressly provides for arbitration pursuant to the former provisions of the act of April 25, 1927 (P.L. 381, No. 248), relating to statutory arbitration.”

42 Pa.C.S.A. § 7302 (Purdon’s 1982) (Historical Note). The Court in Popskyj recognized that the legislature had provided in this note for cases that should be governed by the broad standard contained in the prior law. Popskyj, 388 Pa.Superior Ct. at 440, 565 A.2d at 1190. The Court in Popskyj then went on to reason that the case before the Court did not fall into the situations discussed in the note and it should not be covered by the broad standard of § 7302(d)(2).

We see no difference between the present case and Popskyj. This case does not involve an agreement entered into prior to the effective date of the new act. This case does not involve an agreement to arbitrate under the prior act. Clearly, the note does not bring this case under the broad standard contained in § 7302(d)(2).

In the absence of an applicable statutory standard of review, the common law standard of review applies. See 42 Pa.C.S.A. § 7302(a) (Purdon’s 1982). Under the common law, a decision of a board of arbitrators cannot be reviewed for an error of law. Id. We agree with the lower court that the decision of the board of arbitrators should not have been reversed, and, therefore, the order of the trial court correcting and modifying the decision of the arbitrators should be reversed.

Since appellant’s second issue asks us to review the legal correctness of the arbitrators’ decision, we find that it is outside the scope of review. Therefore, we will not reach this issue.

Order reversed.


author: HESTER, Judge.

text:
    610 A.2d 474
    Stanley J. MATUSKY, an Individual; Carolyn Suzanne Matusky, an Individual; and Stanley J. Matusky and Carolyn Suzanne Matusky, as husband and wife, Appellants, v. HAUGH’S POOLS, a Foreign Corporation; Clover Pool Supply Co., Inc., a Corporation and Allen Pool Sales & Service v. Daniel FRANTZ and Karen Frantz, his wife; Phillip P. Angeletti, Swimline Corporation and Mengo Industries, Inc., a Corporation (Five Cases). Appeal of ALLEN POOL SALES & SERVICE. Appeal of CLOVER POOL SUPPLY CO., INC., a Corporation. Appeal of SWIMLINE CORPORATION. Appeal of HAUGH’S POOLS, a Foreign Corporation.
    Superior Court of Pennsylvania.
    Argued April 22, 1992.
    Filed June 9, 1992.
    Reargument Denied Aug. 13, 1992.

      Nicholas P. Lorenzo, Jr., Punxsutawney, for Matusky, appellants (at 1059) and appellees (at 1649, 1650, 1669, and 1819).
    Timothy D. Appelbe, Pittsburgh, for Clover Pool Supply, appellant (at 1650) and appellee (at 1059, 1649, 1669, and 1819).
    Before TAMILIA, HUDOCK and HESTER, JJ.
   HESTER, Judge.

This is a consolidated appeal from two summary judgment orders entered in this civil action. Based on our recent decision in Mucowski v. Clark, 404 Pa.Super. 197, 590 A.2d 348 (1991), we affirm the trial court’s determination that Stanley Matusky’s conduct was the legal cause of the injuries he sustained when he dove headfirst into his neighbor’s above-ground swimming pool. Accordingly, we affirm the summary judgment orders entered in this action.

This matter arises from an incident which occurred June 8, 1987. Stanley Matusky, who was thirty-seven years old at the time, was rendered a quadriplegic when he dove headfirst into and struck the bottom of a four-foot deep above-ground swimming pool. Mr. Matusky, and Carolyn, his wife, instituted this action on March 13, 1989, against Haugh’s Pools (“Haugh’s”), Clover Pool Supply Co., Inc. (“Clover”), and Allen Pool Sales & Service, Inc. (“Allen”). The pool was manufactured by Haugh’s, distributed by Clover, and sold by Allen. These original defendants joined the owners of the pool and the Matuskys’ neighbors, Daniel and Karen Frantz, as well as Phillip P. Angeletti (“Angeletti”), Swimline Corporation (“Swimline”), and Mengo Industries, Inc. (“Mengo”). Swimline manufactured the pool liner in place at the time of the accident, Mengo manufactured the pool ladder, and Angeletti installed the deck adjacent to the pool.

Mr. Matusky testified as follows at his deposition taken on October 30, 1989. The accident occurred when he dove from the top step of the pool ladder. Reproduced Record at 503a. The ladder was submerged partially in the water. He dove from the step headfirst through a truck inner tube that was located approximately four feet in front of him. Id. at 504a. The outside diameter of the inner tube was four feet. He had made the same dive through the inner tube on at least five prior occasions without incident. He was aware of the water level of the pool, just above his waist, when he made the dive. Id. at 497a.

Mr. Matusky used the Frantzes’ pool frequently, going there as often as ten to twenty times a year during the five years preceding the accident. Mr. Matusky learned to swim when he was ten or eleven years old, how to dive within a year or two after he learned to swim, and he knew that when diving into a shallow area as opposed to a deep area, the trajectory of his dive had to change in order to avoid hitting the bottom of the area.

Based on the deposition testimony of Mr. Matusky, the trial court determined that Mr. Matusky was aware that it was necessary to perform a flat surface dive in shallow water to avoid impact on the bottom of a pool, and that, therefore, Mr. Matusky was aware of and assumed the risk of the injuries he sustained when he made a deep, headfirst dive into three-to-four-feet deep water through an inner tube from the top rung of a ladder leading from the pool. Based on this factual determination, the trial court concluded that Mr. Matusky’s conduct was the legal and sole cause of his injuries.

On May 21, 1991, the trial court granted summary judgment to Haugh’s, Clover, Allen and Swimline. Those four defendants are appellees at docket number 1059 Pittsburgh 1991. On August 14,1991', the trial court granted summary judgment to the additional defendants Angeletti and Mengo. For the purpose of preserving cross-claims against these additional defendants, Clover (at docket number 1650 Pittsburgh 1991), Allen (at docket number 1649 Pittsburgh, 1991), Swimline (at docket number 1669 Pittsburgh, 1991) and Haugh’s (at docket number 1819 Pittsburgh, 1991) took cautionary appeals from the August 14, 1991 grants of summary judgment in favor of Angeletti and Mengo. All of these appeals were consolidated for our review.

Our standard of review of an order granting summary judgment is well-settled:

As an appellate court, we are bound to consider certain principles which dictate when and under what circumstances a trial court may properly enter summary judgment. Goebert v. Ondek, 384 Pa.Super. 100, 103-04, 557 A.2d 1064, 1066 (1989). The trial court must accept as true all well-pleaded facts in the non-moving party’s pleadings, and give to him or her the benefit of all reasonable inferences to be drawn therefrom. Jefferson v. State Farm Insurance, 380 Pa.Super. 167, 170, 551 A.2d 283, 284 (1988). Summary judgment should not be entered unless the case is clear and free from doubt. Hathi v. Krewstown Park Apartments, 385 Pa.Super. 613, 615, 561 A.2d 1261, 1262 (1989). A grant of summary judgment is proper where the pleadings, depositions, answers to interrogatories and admissions on file support the lower court’s conclusion that no genuine issue of material fact exists and that the moving party is entitled to judgment as matter of law. Pa.R.C.P. No. 1035, ... Hatter v. Landsberg, 386 Pa.Super. 438, 440, 563 A.2d 146, 147-48 (1989). See Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 176, 553 A.2d 900, 903 (1989) (entire record before lower court must be thoroughly examined and all doubts as to the existence of a genuine issue of material fact are to be resolved against a grant of summary judgment). We will overturn a trial court’s entry of summary judgment only if there has been an error of law or a clear abuse of discretion. McCain v. Pennbank, 379 Pa.Super. 313, 318, 549 A.2d 1311, 1313 (1988).

Wilkinson v. K-Mart, 412 Pa.Super. 434, 436-37, 603 A.2d 659, 660 (1992), quoting O’Neill v. Checker Motors Corp., 389 Pa.Super. 430, 434-35, 567 A.2d 680, 682 (1989).

We conclude that the trial court properly granted summary judgment under our recent pronouncement in Mucowski v. Clark, supra. In that case, the plaintiff injured himself by diving into an above-ground swimming pool and instituted an action against the owners, distributors, and manufacturer of the pool. We affirmed the trial court’s grant of summary judgment against the plaintiff.

In Mucowski, the pool was four feet deep and not filled to capacity at the time of the accident. The owners had constructed a platform around the pool rim so that children could sit on the platform and dip their feet into the water. They also erected a railing to prevent falls from the platform. Mucowski was twenty-one at the time of the accident. He was familiar with the pool and had used it on prior occasions. He also had dived or jumped into the pool from the platform on prior occasions and knew that the water reached a point between his navel and chest. He then decided to dive from the railing surrounding the platform, struck his head on the bottom of the pool, and sustained serious injuries.

We held that under the circumstances presented in that case, plaintiff could not recover for his injuries against the manufacturer and distributor of the pool. Relying upon persuasive case law from other jurisdictions, we determined that since the plaintiff knew the depth of the water and knew the risk inherent in performing the dive, his own conduct was the legal cause of his injuries and not the absence of warnings regarding diving or the allegedly dangerous condition of the pool.

The reasoning in Mucowski controls the disposition of the case herein. The following determinative factors applied in Mucowski are all present in this case: 1) the pool was four feet deep; 2) plaintiff was familiar with the pool and used it on prior occasions; 3) plaintiff was aware of the depth of the water on the day of the accident; 4) the depth of the water at the time of the dive was between the plaintiffs navel and waist.

While the nature of the two dives are not precisely the same, they are strikingly similar. The plaintiff in Mucowski dove from a greater height but not at such a deep target. Here, Mr. Matusky dove deep into the pool from the top rung of a ladder down through the inner tube. Furthermore, Mr. Matusky admitted that he was an experienced swimmer and knew the difference between shallow and deep water dives.

Thus, based on Mucowski, the trial court properly found that Mr. Matusky’s own conduct was the legal cause of his injuries and not appellees failure to warn of the obvious danger of making such a deep angled dive into shallow water. See also Dudley v. USX Corp., 414 Pa.Super. 160, 606 A.2d 916 (1992), where we denied recovery to a plaintiff injured when stealing copper wire by climbing a tower and cutting an energized line with a hacksaw. At issue was the liability of individuals and corporations who purchased copper wire from the plaintiff on prior occasions with knowledge that it was stolen. We noted that one owes a duty to another to protect only against risks that are reasonably foreseeable. We held that it was not reasonably foreseeable that a person would attempt to steal copper wire by climbing a tower and cutting an energized copper line with a hacksaw. We held that under those circumstances, plaintiffs conduct of cutting the live wire and not defendants’ conduct of knowingly purchasing stolen wire, was the legal cause of the injuries sustained.

Orders affirmed.

      . We note that since the moving parties relied solely upon the testimony of the plaintiff in establishing their entitlement to summary judgment and they did not rely upon the testimony of any other witnesses, the rule announced in Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932), is not violated by the decision herein. See Dudley v. USX Corp., 414 Pa.Super. 160, 606 A.2d 916 (1992).


text:
    610 A.2d 477
    Camillo MARINO v. GENERAL ACCIDENT INSURANCE COMPANY, Bon-Sin Realty Co., and Joseph Sindoni. Appeal of GENERAL ACCIDENT INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Feb. 6, 1992.
    Filed July 1, 1992.

      James C. Haggerty, Philadelphia, for appellant.
    Daniel J. Zucker, Philadelphia, for Marino, appellee.

      Before OLSZEWSKI, JOHNSON and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the judgment of the Philadelphia County Court of Common Pleas dated July 26, 1990. The order which resulted in this judgment ordered:

(1) that defendant, General Accident Insurance Company is ordered to provide uninsured/underinsured motorists coverage pursuant to its general accident insurance personal auto policy Member RPA48-262-72-3;
(2) that General Accident designate an arbitrator within twenty (20) days of this order;
(3) that the motorist arbitration proceed within seventy-five (75) days of this order; and
(4) counsel fees are awarded against General Accident Insurance Company in the amount of $500.00 (five hundred).

Initially, we will examine the appealability of the order in question. A discussion of the case follows.

The lower court summarized the facts of this case:
Plaintiff, Camillo Marino was involved in a motor vehicle accident in Middlesex, NJ on October 13,1986 in which he allegedly sustained severe and permanent injuries when his vehicle was struck by an uninsured motorist.
Plaintiff alleges that he was on his way to visit his aunt and enroute was delivering property for his employer, Jet Messenger Service, Inc.
Plaintiff was insured by General Accident Insurance Company under a policy that provided uninsured/underinsured protection benefits.
Following the accident, the insurers of Plaintiffs employer, Jet Messenger Service, Inc., (New Jersey Manufacturer’s Insurance Company), paid Plaintiff $35,000.00 in uninsured motorist’s benefits.
Thereafter, Plaintiff made a demand to General Accident and its agent for underinsured motorist’s protection benefits.
General Accident refused to provide uninsured motorist’s benefits based on the following policy provision:
We do not provide uninsured/underinsured motorist coverage for bodily injury sustained of a person.
(1) While occupying your covered auto when it is being used to carry persons or property for a fee. This exclusion does not apply to a share of the expense car pool.”

Trial court opinion, Lehrer, J., dated October 8, 1990 at 1-2. Appellee, Camillo Marino, filed a motion for summary judgment requesting that the court appoint arbitrators, order the parties to arbitration and award him counsel fees. The court granted appellee’s motion, and upon the entry of judgment this timely appeal followed.

Initially, we are confronted with whether the order in question is appealable. An order directing arbitration is not appealable. Gardner v. Prudential Insurance Co,, 332 Pa.Super. 358, 481 A.2d 654 (1984). There exists some authority that an order directing arbitration can be appeal-able where the order also disposed of other claims in the case. Clark v. State Farm, 410 Pa.Super. 300, 599 A.2d 1001 (1991); Kester v. Erie Insurance Exchange, 399 Pa.Super. 206, 582 A.2d 17 (1991). These cases base the appealability of the order on the fact that a party to the case was put out of court on another claim. The question, therefore, is whether the order in this case does more than merely order the parties to arbitration. If the result of the order is only that the parties are ordered to arbitration, then the order is not appealable.

In this case, the order in question has several results. First, it orders the parties to arbitration. In this respect the order is not appealable. Second, the order decides the substantive issue that appellant, General Accident, is required to provide uninsured/underinsured coverage to appellee. Third, the order grants appellee $500.00 in attorney’s fees. Finally, the order, by granting summary judgment, puts the parties out of court regarding any other claims asserted in the action. We find that it is appropriate to address the issues presented by appellant.

Appellant's first argument is that the lower court erred in finding that appellee was not barred by the exclusion cited above from recovering uninsured/underinsured motorist benefits. Several questions arise in regard to this issue.

The first question which arises in this regard surrounds the validity of this exclusion under Pennsylvania law. There is a dearth of caselaw on the validity of exclusions in regard to uninsured/underinsured motorist coverage under the Motor Vehicle Financial Responsibility Act. 75 Pa.C.S.A. § 1701 et seq. The lower court granted appellee’s motion for summary judgment based on Nationwide v. Swisher, 731 F.Supp. 691 (E.D.Pa.1990). The facts in the Swisher case were very similar to the case before the Court. In Swisher, Nationwide sought a declaratory judgment to determine whether Swisher was entitled to uninsured motorist coverage under his personal auto policy. Swisher was injured in an accident while operating a tractor trailer for his employer. The accident occurred when another tractor trailer struck the rear of the tractor trailer operated by Swisher. The tractor trailer which struck Swisher’s vehicle was insured by an insurance company which had become insolvent. Nationwide argued that an exclusion in the personal auto policy issued to Swisher precluded any coverage based upon uninsured motorist coverage for the “use of any vehicle by an insured to carry persons or property for a fee.” The United States District Court found the exclusion to be void and unenforceable under the Uninsured Motorist Act [hereinafter “UMA”]. 40 P.S. § 2000. The decision in Swisher is based to a large extent upon the structure of the UMA, which provided a list of permissible exclusions. 40 P.S. § 2000(e)(l)-(3). The District Court reviewed Pennsylvania caselaw and found that exclusions not covered in the list were void and unenforceable.

The question which naturally arises is whether a similar analysis is applicable to the case before the Court, which is governed by the Motor Vehicle Financial Responsibility Act [hereinafter “MVFRA”]. 75 Pa.C.S.A. § 1701 et seq. The lower court looked to the identical language in both acts which provides for the requirement of uninsured/underinsured coverage. The lower court missed the fact that the MVFRA does not contain a list of permissible exclusions. The basis of the analysis in Swisher is the list of permissible exclusions and, therefore, we find Swisher distinguishable. We do not believe the decision of the lower court can be affirmed based upon the analysis in Swisher. Further, Swisher involved an insured operating a vehicle which was not insured under the personal auto policy to transport goods for a fee. In this case appellee was operating his insured vehicle to allegedly transport goods for a fee.

A second question which arises in this regard is whether the exclusion is invalid as against the public policy of the MVFRA. We do not find the exclusion to be against public policy. We limit this decision strictly to the facts of the case before the Court. The exclusion in question provides for an exclusion when the insured vehicle is operated to transport persons or goods for a fee. Since insurance rates vary from passenger to commercial use, we find that it is within public policy to allow such a limited exclusion. To invalidate such an exclusion would result in an increase in automobile rates across the board for private operators. It is within the public policy of the Commonwealth of Pennsylvania to assign costs to those who have created the need for the cost. In this case increased risk and, therefore, cost is created by commercial operators. This cost should not be passed on to persons who only use a vehicle for personal use. Clearly the increased risk related to commercial operators should be borne by those who utilize vehicles for commercial purposes. The private individual who utilizes a vehicle strictly for personal use should pay a premium based on the risk associated with that use and not for the greater risk associated with a commercial use. We believe it was the Legislature’s intent when enacting the MVFRA to control rising insurance costs. We believe that to invalidate this exclusion would work the opposite effect.

The third and final question which arises is whether the applicability of the exclusion is a proper question for arbitration. In Brennan v. General Accident Fire & Life, 524 Pa. 542, 574 A.2d 580 (1990), the Pennsylvania Supreme Court analyzed an agreement to arbitrate similar to the agreement in this case. Brennan involved a question of whether it was within the power of the arbitrators to determine whether any setoff should be applied under the policy. The Superior Court held that it was beyond the powers of the arbitrators to determine the setoff issue because the question was not presented to the arbitrators by the parties. The Pennsylvania Supreme Court reversed the judgment of the Superior Court and reinstated the decision of the arbitrators. The Supreme Court examined the language of the agreement to arbitrate and found that whether a setoff was applicable was within the scope of the arbitrator’s powers.

The agreement to arbitrate in Brennan read as follows: “If we and the covered person disagree whether that person is legally entitled to recover damages from the owners or operator of an underinsured motor vehicle, or do not agree as to the amount of damages, either party may make a written demand for arbitration.” Brennan, 524 Pa. at 547, 574 A.2d at 582. In this case the agreement to arbitrate reads as follows:

If we and the covered person do not agree:
1. Whether that person is legally entitled to recover damages from the owner or operator of an:
a. uninsured motor vehicle; or
b. underinsured motor vehicle if Underinsured Motorists Coverage is afforded; or
2. As to the amount of damages;

either party may make a written demand for arbitration. We find no difference that affects our decision between the agreement in Brennan and the agreement in this case.

In Brennan, the Supreme Court held that the agreement to arbitrate did not limit the jurisdiction of the arbitrators.

A review of the language of the arbitration clause reveals that arbitration is mandated whenever the insured and the insurer disagree as to when a party is legally entitled to recover damages. There is no limit to the jurisdiction of the arbitrators over what issues may be submitted and in fact the policy declares that all disputes between the insurance company and the insured will be arbitrated. The instant dispute, in its broadest sense, involves a disagreement as to the amount of damages which Appellant would and could possibly receive under the policy. This court has held, since the. insurance policy was written by the Appellee [insurance company], any ambiguity will be interpreted against the Appellee. National Grange Mutual Insurance Co. v. Kuhn, 428 Pa. 179, 236 A.2d 758 (1968). Given the broad scope of authority given the arbitrators, we have little difficulty in concluding that the dispute herein is a matter specifically within the scope of the arbitration clause.

Brennan, 524 Pa. at 549, 574 A.2d at 583. The Supreme Court’s analysis is directly on point with this case. See, Baverso v. State Farm, 407 Pa.Super. 164, 595 A.2d 176 (1991); Nationwide v. Pitts, 400 Pa.Super. 269, 583 A.2d 489 (1990); Lamar v. Colonial Penn, 396 Pa.Super. 527, 578 A.2d 1337 (1990). The insurance policy in this case was written by appellant, General Accident, and should be interpreted against appellant. Further, the policy contains no limitation on the jurisdiction of the arbitrators. Brennan clearly controls our decision. Under Brennan, this is an appropriate case for arbitration.

We reverse the decision of the lower court to the extent it would invalidate the exclusion or find the exclusion inapplicable. There is a question for arbitration regarding the use of the vehicle at the time of the accident. Appellee has claimed that the vehicle in question was being used for personal transportation and that on the way he was to deliver a package for his employer. Whether the exclusion is applicable, is a proper question for arbitration.

Appellant’s second argument is that the lower court erred in granting appellee attorney’s fees. We have reviewed the record of this matter and find no basis for the trial court’s ordering attorney’s fees. We find no basis in the record for a finding of dilatory, obdurate or vexatious conduct as required by 42 Pa.C.S.A. § 2503(7). See Baverso, 407 Pa.Super. at 170, 595 A.2d at 179. The lower court’s decision is reversed to the extent it awarded attorney’s fees.

The judgment of the lower court is reversed in all respects, except to the extent that this case is ordered to arbitration pursuant to the terms of the insurance policy. The matter should be heard by the arbitrators and a decision rendered consistent herewith.

There is an outstanding motion to strike a portion of the reproduced record. Since our decision is not based on any improper documents, the motion is denied.

Motion to strike a portion of reproduced record denied. Judgment reversed and remanded in part, affirmed in part. Jurisdiction relinquished.


author: MONTEMURO, Judge:

text:
    610 A.2d 481
    The FIDELITY BANK v. Winchell Smith CARROLL and Patricia Ann McClure Carroll. Appeal of Patricia Ann McClure CARROLL.
    Superior Court of Pennsylvania.
    Argued April 23, 1992.
    Filed July 7, 1992.

      Arthur R. Littleton, Philadelphia, for appellant.
    Daniel S. Bernheim, III, Philadelphia, for appellee.
    Before ROWLEY, P.J., and MONTEMURO and POPOVICH, JJ.
   MONTEMURO, Judge:

Pursuant to a divorce decree, appellant, Patricia Ann Carroll, was awarded title to the marital home and directed to place the home on the market with the proceeds to be divided seventy-five percent to appellant and the remaining twenty-five percent to her former husband. To facilitate the sale, appellant moved to quiet title her claim to the property. Her motion was challenged by appellee, the Fidelity Bank (“Bank”), a creditor of Mr. Carroll, and subsequently denied by the trial court. On appeal, appellant asserts that the trial court erred in denying her motion because once she and her former husband separated, a later judgement entered solely against Mr. Carroll did not create a lien on the marital property. We agree and accordingly, reverse the order of the trial court.

This appeal arises from a procedural morass encompassing a divorce proceeding, a writ of execution and a motion to quiet title. The events giving rise to this dispute began in 1984 when appellant and Mr. Carroll relocated to Villanova, Pennsylvania and purchased a home, not as tenants by the entireties, but rather as tenants in common. Shortly thereafter, Mr. Carroll obtained an unsecured demand note in the amount of $40,000 from the Bank and a an unsecured credit line of $50,000. Mr. Carroll failed to make the required payments and was declared in default on both loans during July of 1987.

On July 15, 1987, the Carrolls separated and two days later, Mrs. Carroll filed for divorce. Subsequently, the trial court entered an order on August 17, 1987, permanently enjoining Mr. Carroll from encumbering, alienating, transferring or selling any of the Carrolls’ real or personal property.

Meanwhile, the Bank was continuing its efforts to collect on the unpaid loans and eventually instituted a collection action against Mr. Carroll on November 10, 1987. On March 2, 1988, the Bank and Mr. Carroll entered into an agreement whereby, Mr. Carroll agreed to allow the bank to take a default judgement in its collection action and the bank agreed that it would forebear executing on the marital home provided the property was listed for sale. A default judgement was then taken against Mr. Carroll on March 7, 1988.

When Mr. Carroll failed to place the marital residence on the market, the Bank filed and served a writ of execution on appellant seeking to garnish all of Mr. Carroll’s personal property which was then in appellant’s possession. Appellant petitioned the court to stay the writ pending equitable distribution of the marital property. This motion was granted. The Bank then made an unsuccessful bid to intervene in the divorce action.

Eventually, appellant and Mr. Carroll were able to agree on a mutually acceptable division of the marital property. Their agreement was incorporated into the divorce decree which was entered on October 29, 1990. Entry of the decree activated an earlier order of the trial court which provided that the stay would be vacated upon entry of a divorce decree. Although the stay was vacated, the Bank did not attempt to satisfy its judgement by executing on Mr. Carroll’s personal property.

Upon learning of the terms of the equitable distribution, the Bank advised appellant that it believed that its judgements against Mr. Carroll were valid liens against the marital home. Appellant disagreed and the parties stipulated that they would resolve this matter by submitting the issue to the trial court as a motion to quiet title. The trial court denied this motion and validated the judgement liens of the various banks. This appeal followed.

Initially, we note that when reviewing a decision from a quiet title action, an appellate court will ordinarily not reverse the trial court’s determination absent an error of law or a capricious disregard of the evidence. Klebach v. Mellon Bank, N.A., 388 Pa.Super. 203, 207, 565 A.2d 448, 450 (1989), alloc. granted, 527 Pa. 647, 593 A.2d 420 (1990). Here, we find that the trial court committed an error of law when it denied appellant’s motion to quiet title.

Under the Divorce Code, 23 Pa.C.S.A. § 3101 et seq., it is presumed that all real and personal property acquired by the parties during marriage is marital property regardless of whether the property is held individually or by some form of co-ownership such as joint tenancy, tenancy in common or tenancy by the entirety, 23 Pa.C.S.A. § 3501(b), and all such property is subject to equitable distribution upon request of either party, 23 Pa.C.S.A. § 3502(a). However, to the extent that any marital property has been mortgaged or encumbered prior to the date of final separation, it is not available for distribution. 23 Pa.C.S.A. § 3501(a)(7).

Here, the marital residence was neither mortgaged nor encumbered when the parties separated. Thus, it is presumed that the entire property is available for equitable distribution.

When appellant initiated the divorce action, all marital property was placed under the trial court’s jurisdiction. As such, the property was in custodia legis, or under wardship of the court, pending the outcome of the divorce proceeding: See Klebach, supra (entireties property subject to judicial order of divorce court is in custodia legis); Buchholz v. Cam, 288 Pa.Super. 33, 430 A.2d 1199 (1981) (funds in the possession of Commonwealth and owing to individuals are held in custodia legis). In Pennsylvania, property so held is not subject to attachment by judicial liens. Klebach, supra; Buchholz, supra.

When the doctrine of custodia legis is applied to the facts of the instant case, it is apparent that the Bank’s liens do not attach to the marital home. Here, appellant filed for divorce on July 17, 1987; however, the bank did not enter a judgement against Mr. Carroll until March 18, 1988. Because the marital home was then under the court’s jurisdiction, the Bank’s judgement did not attach. Klebach, supra; Buchholz, supra.

At the time the Bank’s judgement was filed, the marital residence was the subject of equitable distribution in the pending divorce action. Therefore, the Bank was aware, at least constructively, that Mr. Carroll’s interest in the property was involved in divorce litigation and subject to distribution by the court. Accordingly, the Bank could acquire no greater interest in the marital home than that of Mr. Carroll and the Bank only succeeds to whatever Mr. Carroll’s interest in the marital property turns out to be. Weaver v. Weaver, 413 Pa.Super. 382, 605 A.2d 410 (1992). Here, it turns out that Mr. Carroll has no interest in the marital home. Therefore, the Bank also has no interest in the home. Id.

The Bank asserts that such a result is in direct contradiction with The Equal Credit Opportunity Act, 15 U.S.C. § 1691 et seq., and the Federal Reserve Board’s Regulation B which prohibit lenders from requesting the signatures of both spouses on loan documents when one spouse is borrowing individually and that spouse is credit worthy. This argument has no merit. Here, the Bank made unsecured loans to Mr. Carroll. There was nothing to prevent the Bank from requiring that Mr. Carroll use his interest in the marital home as collateral for the loans. However, the Bank elected to not secure its loans and therefore, must accept the consequences of its actions.

Finally, we note that the trial court’s order effectively modifies the Carrolls’ divorce decree. Now, instead of receiving seventy-five percent of the proceeds from the sale of the marital home, appellant’s portion of the proceeds has been reduced by the Bank’s judgements. Such a result would permanently defeat the distribution of property set forth in the divorce decree because once a decree has been entered, it cannot be opened or vacated except under very limited circumstances. Thus, the trial court’s order has undone the economic justice contemplated by the divorce decree.

Order of the trial court reversed and cause remanded for entry of an order quieting appellant’s title to the marital home. Jurisdiction relinquished.

      . The loan documents at issue are signed by both Mr. Carroll and appellant; however, at the trial court level there was a dispute as to whether appellant’s signature was a forgery. It now appears that the Bank has abandoned its claim against appellant and is looking solely to Mr. Carroll for satisfaction of the debts.

      . Mr. Carroll also obtained unsecured loans from Provident Bank and First Pennsylvania Bank. Although neither of these banks is a party to the instant dispute, they have agreed to be bound by the outcome.

      . We note that although this action is docketed at the trial court level as a writ of execution against the personal property of Winchell Smith Carroll, the parties stipulated that the trial court could determine appellant’s title to the marital residence via a motion to quiet title. Thus, the parties bypassed the procedural requirements for a quiet title action as set forth by our Supreme Court at Pa.R.Civ.P. 1061-68.

      . Although the Bank did attempt to protect its interests by intervening in the Carrolls’ divorce, it had an additional remedy which it neglected to pursue. Under the Bankruptcy Code, 11 U.S.C. § 101 et seq., it may have been possible for the Bank to force Mr. Carroll into involuntary bankruptcy. 11 U.S.C. § 303(b). If the Bank was successful, the divorce proceeding would have been stayed pending resolution of the claims of Mr. Carrolls various creditors. 11 U.S.C. § 362. See In re Wilson, 85 B.R. 722 (E.D.Pa.1988) (stay of divorce proceeding lifted, but court notes that the trustee in bankruptcy may wish to participate in the divorce as current owner of the property); In re Zeits, 79 Bankr. 222 (E.D.Pa.1987) (property distribution stayed pending resolution of the bankruptcy proceeding).

      . The Divorce Code provides that:
      a motion to open a decree of divorce or annulment may be made only within [thirty days after entry of the decree] and not thereafter. The motion may lie where it is alleged that the decree was procured by intrinsic fraud or that there is new evidence relating to the cause of action which will sustain an attack on its validity. A motion to vacate a decree or strike a judgement alleged to be void because of extrinsic fraud, lack of jurisdiction over the subject matter or a fatal defect apparent on the face of the record must be made within five years after entry of the final decree. Intrinsic fraud relates to a matter adjudicated by the judgement, including perjury and false testimony, whereas extrinsic fraud relates to matters collateral to the judgement which have the consequence of precluding a fair hearing or presentation of one side of the case.