author: HUDOCK, Judge: CIRILLO, Judge,

text:
    630 A.2d 869
    COMMONWEALTH of Pennsylvania, Appellee, v. Kevin ROBERTS, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 8, 1993.
    Filed June 30, 1993.
    Reargument Denied Sept. 17, 1993.

      Shelly Stark, Public Defender, Pittsburgh, for appellant.
    Kevin McCarthy, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before CIRILLO, HUDOCK and BROSKY, JJ.
   HUDOCK, Judge:

This is an appeal from the judgment of sentence imposed upon Appellant after he was found guilty, at the conclusion of a nonjury trial, of robbery, criminal conspiracy, and possession of instruments of crime. Appellant was sentenced to consecutive terms of not less than two (2) years nor more than five (5) years on the charge of robbery, and ten (10) years probation on the charge of criminal conspiracy. A verdict of guilty without further penalty was ordered on the possession of instruments of crime conviction. Subsequently, Appellant filed a motion for reconsideration of sentence which was denied. This direct appeal followed. For the following reasons, we vacate the judgment of sentence and remand for proceedings consistent with this opinion.

Thé facts leading to these convictions may be summarized as follows: On October 80, 1991, at approximately 1:30 a.m., Sean Robertson, a student at the University of Pittsburgh, was walking home on South Bouquet Street in the Oakland section of Pittsburgh, Pennsylvania, after visiting his girlfriend in her dormitory room on campus. Shortly after passing the University of Pittsburgh School of Law, and near a well-lighted parking lot, Robertson was approached from behind by two black males. One of the black males, Kevin Roberts (hereinafter, “Appellant”), took a few steps in front of Robertson and then turned around. Appellant, simultaneously, pulled out a kitchen knife with a 10-12 inch blade and a wooden handle and ordered Robertson to give him his money. While Appellant spoke to Robertson, Appellant’s confederate, John Thompson, proceeded to check Robertson’s jacket and pants pockets. He removed from Robertson a pack of Viceroy cigarettes, keys and Robertson’s student I.D. The keys were subsequently placed back in Robertson’s pocket. Robertson was not carrying any money. While this incident was occurring, Officer Curtis Smith, of the University of Pittsburgh Campus Police Department, passed the three individuals on the street in his marked patrol unit. He slowed down to observe what was transpiring as he was suspicious of the very close proximity of the three individuals and the distressed look on Robertson’s face. Officer Smith proceeded down the street, turned his vehicle around and returned to where he had seen the three individuals standing. At this point, Appellant and his friend began to run away from Robertson. Robertson flagged down the police vehicle and related to Officer Smith what had just happened. He also described the individuals and the items which had been taken from him. Officer Smith immediately pursued Appellant and Thompson across a University parking lot, finally stopping them approximately two minutes later on Oakland Avenue for questioning. Officer Smith recognized the two males as the individuals whom he had viewed only minutes earlier with Robertson. Robertson’s cigarettes and student I.D. were found in Thompson’s possession. The knife was later found approximately forty yards away in the parking lot which Appellant and Thompson had traversed. Appellant and Thompson were transported to the University of Pittsburgh Campus Police station where they were identified by Robertson and then subsequently delivered to the City of Pittsburgh Police.

On appeal, the sole issue raised by Appellant is whether trial counsel was ineffective for failing to move to suppress the identification of Appellant as the fruit of an illegal arrest.

Claims of ineffectiveness of counsel are subject to a three-part analysis:

First, it must be demonstrated that the underlying claim is of arguable merit. Next, it must be determined whether counsel’s choice of action had some reasonable basis designed to effectuate his client’s interests. Finally, a showing must be made of how counsel’s choice of action prejudiced the client.... The law presumes that counsel was effective, so that the burden of establishing ineffectiveness rests squarely upon the defendant. [Citations omitted.]

Commonwealth v. Nelson, 389 Pa.Super. 417, 420, 567 A.2d 673, 676 (1989). To prove prejudice from the ineffectiveness, Appellant must show that counsel’s errors had an adverse effect on the outcome of the trial. Commonwealth v. Boyles, 407 Pa.Super. 343, 358, 595 A.2d 1180, 1188 (1991), alloc, den., 531 Pa. 651, 613 A.2d 556 (1992). “An appellant must show that the error was ‘so serious as to deprive [him or her] of a fair trial, a trial whose result was reliable.’ ” Boyles, 595 A.2d at 1188 (quoting Commonwealth v. Morocco, 375 Pa.Super. 367, 371, 544 A.2d 965, 967 (1988), alloc. den., 520 Pa. 615, 554 A.2d 508 (1989)). Furthermore, trial counsel cannot be found to have rendered ineffective assistance of counsel for failing to pursue a course of action that had no arguable merit. Commonwealth v. Black, 398 Pa.Super. 364, 365, 580 A.2d 1391, 1392 (1990), alloc. den., 527 Pa. 628, 592 A.2d 1296 (1991). We . shall address Appellant’s claim of ineffectiveness keeping these standards in mind.

As noted above, Appellant contends that trial counsel rendered ineffective assistance of counsel for failing to file a motion to suppress the identification of Appellant which was made subsequent to an illegal arrest. Appellant argues that the arrest was illegal because Officer Smith, a campus police officer, acted beyond the limits of his jurisdiction in making the arrest, as both the incident in question and the arrest occurred off campus. Conversely, the Commonwealth contends that the events in question did occur on and/or immediately adjacent to University property. Commonwealth brief at p. 13. Accordingly, the Commonwealth concludes that Officer Smith had jurisdiction to effectuate the arrest of Appellant. In the alternative, the Commonwealth argues that, even if the events in question and the arrest occurred on the city streets and not on campus property, because of the noncontiguous nature of the University of Pittsburgh campus and because the layout of the campus necessitates that campus police drive on city streets among various private commercial enterprises and residential properties while on routine patrol, Officer Smith had an affirmative duty when he saw a felony committed on his patrol to pursue the perpetrators.

After examining the record and Appellant’s argument, we are constrained to conclude that there is arguable merit in Appellant’s contention that trial counsel was ineffective. See 71 P.S. § 646(h) (“Security and Campus Police shall exercise their powers and perform their duties only on the premises of the State colleges and universities, State aided or related colleges and universities and community colleges by or for which they are employed ... except, that Campus Police employed by State owned colleges and universities located in any municipalities, other than cities of the first class or second class, are authorized, in emergency situations occurring within the municipality, upon the request of the mayor or other executive authority and under the direction of the local law enforcement authorities, to exercise those powers and perform those duties conferred pursuant to this section within the municipality for the limited purpose of aiding local authorities in emergency situations.”); Commonwealth v. Savage, 403 Pa.Super. 446, 589 A.2d 696 (1991), alloc. den., 529 Pa. 633, 600 A.2d 953 (campus police officer was without authority to stop and arrest driver whom officer observed run red light on street in adjoining borough while on patrol and parked on the university campus; suppression of evidence obtained as result of campus police officer’s unlawful seizure of driver was appropriate). However, because the record is unclear as to whether the incident and/or arrest took place on university property, we cannot determine on the present state of the record whether Appellant was denied effective assistance of counsel. “When an arguable claim of ineffective assistance of counsel has been made, and there has been no evidentiary hearing in the [trial court] to permit the defendant to develop evidence on the record to support the claim, and to provide the Commonwealth an opportunity to rebut the claim, [the Superior] Court will remand for such a hearing.” Commonwealth v. Petras, 368 Pa.Super. 372, 377, 534 A.2d 483, 485 (1987). See also, Commonwealth v. McBride, 391 Pa.Super. 113, 121, 570 A.2d 539, 543 (1990); Commonwealth v. Copeland, 381 Pa.Super. 382, 397, 554 A.2d 54, 61 (1988), alloc. den., 523 Pa. 640, 565 A.2d 1165 (1989). Because this is the first time Appellant alleges ineffective assistance of counsel, no evidentiary hearing has been held in this case. Accordingly, an evidentiary hearing is necessary. Such a hearing will provide Appellant with an opportunity to prove that the incident did not take place on campus, that Officer Smith did not have the requisite jurisdiction to make the arrest, and that the subsequent identification would have been subject to suppression if his counsel had filed a motion to suppress it. A hearing will also provide the Commonwealth with the opportunity to prove, as it avers, that the incident and/or arrest did occur on university property or in such close proximity that the arresting officer had jurisdiction.

Therefore, the judgment of sentence is vacated pending an evidentiary hearing to determine whether Appellant’s contention that trial counsel was ineffective for failing to move to suppress the identification, which was the fruit of an illegal arrest, has merit. If it is determined that trial counsel was ineffective, and that Appellant was prejudiced thereby, a new trial must be granted. If counsel was not ineffective, however, the judgment of sentence may be reimposed. In remanding for such a .determination, we decline to address the underlying merits of the action. We, note, however, that in the event it is found the incident and/or arrest did not occur on university property, we do not concede by remanding that an extraterritorial arrest was unwarranted under these circumstances.

The judgment of sentence is vacated and the case remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.

CIRILLO, J., files a dissenting opinion.

CIRILLO, Judge,

dissenting.

I respectfully dissent. Under the unique facts presented here, remanding for an evidentiary hearing to determine whether or not the offense took place on the campus premises is unwarranted. I would find due to the liberal construction to be afforded in applying 71 P.S. § 646, that the General Assembly did not intend such an absurd result as is considered by the majority — that a campus security officer on routine patrol, who, due to the geographic makeup of the campus must utilize public streets for ingress and egress, is possibly without jurisdiction to apprehend a felon while a felony is in progress depending on the location of where the felony takes place.

In construing legislation, this court must ascertain and effectuate the intention of the legislature. 1 Pa.C.S.A. § 1921(a). Since section 646 is not penal in nature, it must be liberally construed to effectuate its purpose and promote justice. 1 Pa.C.S.A. § 1928(c); Commonwealth v. Holderman, 284 Pa.Super. 161, 425 A.2d 752 (1981). “When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S.A. § 1921(b). The legislature does not intend a result that is absurd or impractical. 1 Pa.C.S.A. § 1922(1). A review of the text of section 646 reveals that it does not address the jurisdictional question in the instant case of whether campus security may apprehend a felon off campus while on routine patrol and utilizing public roadways of egress and ingress to effectuate the patrol.

Where the statutory definition is not explicit, we may ascertain the intention of the legislature by considering, among others, such factors as the occasion and necessity for the statute, the circumstances under which it was enacted, the mischief to be remedied, the object to be attained, the consequences of a particular interpretation and the contemporaneous legislative history of such statute. 1 Pa.C.S.A. § 1921(c); Com., Higher Ed. Assistance v. Abington Memorial, 478 Pa. 514, 387 A.2d 440 (1978). A review of the scant legislative history surrounding the enactment of section 646 reveals that the statute was promulgated to provide effective protection to the persons and property located within the campus and to relieve local authorities of the burden of supplying the service, Holderman, supra; Commonwealth v. Mitchell, 381 Pa.Super. 592, 554 A.2d 542 (1989), and to alleviate the legislature’s concern over the delay that results from colleges and universities relying on local or state police for campus security. Mitchell, supra.

A thorough search reveals only four cases which interpret the jurisdictional restraint on campus security. In Savage, supra, the sole case cited by the majority, campus security intentionally usurped the power of the local police by concentrating their efforts on activities occurring at a local pub beyond the campus boundaries. Campus security went so far as to position the patrol car facing the pub and remained stationary until a violation occurred. While laying in wait, campus security witnessed Savage run a red light and gave chase. Once captured, Savage was also charged with driving under the influence of alcohol. Following his conviction of the two summary offenses, Savage appealed. A panel of this court, agreeing with the trial court, found that both the red light violation and the subsequent chase occurred off the campus premises, violating section 646, and subsequently the evidence obtained as a result of his arrest had to be suppressed.

In Holderman, supra, a panel of this court was presented with the issue of whether campus security could make a summary arrest outside the campus boundaries where the initial offense occurred on the campus and where campus security made the arrest after hot pursuit of the offender. Finding that section 646 must be liberally construed, the panel concluded that the subsequent arrest off campus was lawful and that the legislature could not have intended to prohibit campus security from pursuing and arresting summary offenders fleeing campus.

Similarly, in Mitchell, supra, this court, again recognizing the liberal construction of the statute to effectuate its remedial purpose, held that the legislature could not have intended to limit the jurisdiction of campus security solely to educational and residential grounds, but also to commercial properties owned by the college or university which were used for investment purposes. The court in Mitchell realized that campus properties of “a college or university, especially when located within a municipality, may not be contiguous, but may be located in or constitute various sections of the municipality”. Mitchell, 381 Pa.Super. at 602, 554 A.2d at 547. The court stated that to hold otherwise,

we would be ignoring the layout and everyday operation of a college or university. We find the legislature would not have created a situation where it would have ignored the realities of the college or university campus ... We, therefore, conclude that “premises” and “grounds and buildings” within the statutory framework of 71 P.S. § 646(h) include, not only academic and residential areas, but also commercial property of a college or university used for investment purposes.

Id. While acknowledging that a campus may not be contiguous, but rather may be located within or constitute various sections of municipality, the panel did not specifically address the jurisdictional power of campus security to make an arrest on routine patrol which occurs between point “A,” located on the campus, and during the drive on a public street while en route to point “B” which is also campus property, but located in another section of the municipality.

Thus, all these cases are readily distinguishable from the instant facts and establish that the situation presented here is one of first impression. Instantly, we have an officer on routine patrol, who due to the geographic nature of the university campus must use routes of ingress and egress which, while may be adjacent to campus property, are not designated as campus owned roadways, who sees a felony in progress and then hotly pursues the suspects after being flagged down by the victim. These actions are in compliance with the legislative intent embodied in the statute governing the powers of the campus security to effect an arrest and do not usurp the powers of the municipal police authorities as is prohibited by 71 P.S. § 646.

I would find that an arrest that occurs on a public roadway which, due to the geographic make up of the campus must be used by campus security while performing routine patrol is lawful and consistent with the legislative intent. Further, such an activity naturally flows from the statutory meaning to be given to protection of campus grounds and premises. I find it absurd that the legislature could have intended that campus security while on routine patrol are powerless to act under such circumstances. Requiring campus security to contact campus dispatch who in turn must contact local authorities would waste crucial time and possibly result in physical injury to the victim. Here, campus security did not intentionally usurp local authority or somehow purposefully involve themselves in such conduct that would be out of the norm of the routine patrol. The officer happened upon a felony robbery in progress which included the defendant wielding a 10-12 inch kitchen knife at the victim. The victim was a student at the university, was walking home to his apartment and had just walked past the University of Pittsburgh Law School when he was attacked.

Unlike the cases cited above, the instant facts establish the urgency of the situation and at the very least that the attack occurred adjacent to the university campus. To hold that the location of the incident could jeopardize the arrest, where campus security are on routine patrol, undermines the legislative objective in promulgating the statute to protect persons and property and to alleviate the burden on local police authority. Mitchell, supra. As such, I would affirm the judgment of sentence.

      . 18 Pa.C.S. § 3701.

      . 18 Pa.C.S. § 903.

      . 18 Pa.C.S. § 907.

      . The dissent concludes that 71 P.S. § 646 did not intend the absurd result of a campus police officer who views a felony in progress, while patrolling a non-contingent college campus, to be without jurisdiction to apprehend the felon because of the location of where the felony takes place. We note, however, that the record reveals that Officer Smith did not view the actual robbery and did not at any time see Appellant accost the victim with a knife while his companion removed the victim's belongings from his pockets. Rather, the record indicates that Officer Smith, while passing the individuals in his patrol unit, saw a "suspicious” situation, specifically two black males in close proximity with a white male who appeared to be in distress. This situation prodded Officer Smith, after proceeding down the street, to turn his vehicle around and investigate. Only upon his return to the scene, and after the victim talked to him, did Officer Smith, in fact, become aware that a robbery had occurred and that apprehension of Appellant and his companion was warranted. At this time, the victim had reached safety and Appellant and his companion had fled.

      . Research discloses only one other case where an arrest off campus by campus security resulted in suppression of evidence. In Commonwealth v. Dixon, 226 Pa.Super. 569, 323 A.2d 55 (1974), the defendant was arrested for the summary offense of disorderly conduct on a public road adjoining the campus. No facts were offered as to whether security personnel were on routine patrol or had acted intentionally to usurp local authority. Also distinguishable from the instant case, was the fact that the parties in Dixon stipulated prior to trial that the arresting officer had no jurisdiction under the facts to make the arrest. Id. at 571, 323 A.2d at 56.


source: Caselaw Access Project

author: TAMILIA, Judge: HUDOCK, Judge,

license: Public Domain

text:
    630 A.2d 874
    Floyd PHILLIPS and Kathryn G. Phillips, His Wife v. A.P. GREEN REFRACTORIES COMPANY; Allegheny Sand, Inc.; Armstrong World Industries, Inc., in its own Right and as Successor-in-Interest to Armstrong Cork Company and Armstrong Contracting and Supply Co.; The Boc Group, Inc. in its own Right and as Successor-in-Interest to Airco Welding Products Co.; Combustion Engineering, Inc.; Dresser Industries, Inc., and its Division Harbison-Walker Refractories; Foseco, Inc.; The Gage Company, Formerly Pittsburgh Gage and Supply Co.; General Refractories Company; H.K. Porter Company, Inc., in its own Right and as Successor-in-Interest, to Southern Textile Company, Formerly Southern Asbesto Company; J.H. France Refractories Company; Keene Corporation, in its own Right and as Successor-in-Interest to Baldwin Hill Co., Baldwin-Ehret-Hill, Inc., Ehret Magnesia Manufacturing Company, The Insulation Division of Mundet Cork Company, Mundet Company, and to Keene Building Products Corporation; New Jersey Pulverizing Company, Inc.; Nicolet, Inc., in its own Right and as Successor-in-Interest to Nicolet Industries, Inc., and to the Industrial Products Division of Keaseby & Mattison Co.; Owens-Illinois, Inc., Pennsylvania Glass Sand Corporation; TYK Refractories Company, in its own Right and as Successor-in-Interest to Swank Refractories; Walter C. Best, Inc.; and Westinghouse Electric Corporation v. BOGNAR & COMPANY; Hickman-Williams Co.; Downer Silica Company; Manley Brothers of Indiana; Keklo Refractories of Pennsylvania; New Jersey Silica Sand Company; R.J. Glass; American Colloid Company; Applied Industrial Materials Corporation, also Known as Aimcor; International Mineral and Chemical Corporation, also Known as IMC; and the Warner Company. Appeal of PENNSYLVANIA GLASS SAND CORPORATION, now Known as U.S. Silica Company. Nick HARMOTTA and Margaret Harmotta, His Wife v. WALTER C. BEST, INC., a corporation; Pennsylvania Glass Sand Corporation, a Corporation; Allegheny Sand, Incorporated, a Corporation; and J.H. France Refractories Company, a Corporation v. The WARNER COMPANY, a Corporation; New Jersey Silica Sand Company, a Corporation; Owens-Illinois, Inc., a Corporation; Hickman-Williams Company, a Corporation; Downer Silica Sand Company, a Corporation; Manley Brothers, a Corporation; A.P. Green Refractories Company, a Corporation; Combustion Engineering, Inc., a Corporation; H.K. Porter, Inc., in its own Right and as Successor-in-Interest to Southern Textile Company, Formerly Southern Asbestos Company, a Corporation; Harbison-Walker Refractories, Inc., a Corporation; General Refractories Company, Inc., a Corporation v. AMERICAN COLLOID COMPANY, INC.; Applied Industrial Materials Corporation, a/k/a Aimcor; International Mineral and Chemical Corporation, a/k/a IMC. Appeal of WALTER C. BEST, INC., a Corporation; Pennsylvania Glass Sand Corporation, a Corporation.

      Superior Court of Pennsylvania.
    Argued April 21, 1992.
    Filed July 15, 1993.
    Reargument Denied Sept. 22, 1993.

      Joseph W. Montgomery, III, Pittsburgh, for appellants in Nos. 1545 and 1651.
    Joseph S.D. Christof, Pittsburgh, for appellants in Nos. 1545 and 1651.
    Tyre A. Brett, Pittsburgh, for appellees in Nos. 1545 and 1651.
    Before TAMILIA, HUDOCK and HESTER, JJ.
   TAMILIA, Judge:

Walter C. Best, Inc. (Best) appeals the judgment entered September 19, 1991 at No. 01651 Pittsburgh, 1991, in accordance with the $22,500 jury verdict for Nick and Margaret Harmotta. Pennsylvania Glass Sand Corporation (PGS) appeals the September 19, 1991 judgments entered at Nos. 01651 and 01545 Pittsburgh, 1991, following the $22,500 jury verdicts for both the Harmottas and Floyd and Kathryn G. Phillips.

These consolidated appeals stem from products liability actions brought against appellants and various other manufacturers and/or suppliers of silica-containing products for damages Nick Harmotta and Floyd Phillips allegedly sustained while they were employed for approximately 30 years at the foundry of U.S. Steel’s Johnstown Works. Appellees contended they contracted silicosis as a result of working with and being exposed to silica sand supplied by appellants. In their complaints, appellees alleged appellants’ conduct constituted negligence and also rendered them strictly liable for failing to warn appellees directly of the potential hazards associated with prolonged exposure to silica dust. The two eases were consolidated for trial.

On April 15, 1985, prior to the filing of their complaint, the Harmottas filed a workmen’s compensation claim against U.S. Steel as a result of the same alleged injuries. After an examination of expert medical reports from both parties and testimony from Harmotta, and subsequent to the Harmottas civil action filed January 16, 1986, the referee, on July 25, 1986, found Harmotta was not entitled to benefits under the Workmen’s Compensation Act. As a result, on April 29,1988, Best filed a motion for summary judgment on the basis the Harmottas’ claim had already been litigated and denied in the worker’s compensation proceeding and thus was barred by collateral estoppel. On May 23, 1988, the trial court denied the motion. On April 6, 1989, Best, on the same theory, refiled the motion for summary judgment requesting reconsideration of the prior determination. The motion was denied on July 31, 1989, the court “reserving to all defendants the right to preserve [the] issues for appellate review.” (Slip Op., Creany, S.J., 7/31/89, p. 3.)

A jury trial commenced on April 2, 1990, and at the close of Harmotta’s and Phillips’ evidence, several defendants made a motion for compulsory nonsuit. Owens-Illinois, Inc., on behalf of all defendants, argued the strict liability claim should be nonsuited because the evidence did not demonstrate that bulk silica sand supplied to foundries was an unreasonably dangerous product and, thereby, did not establish a duty on the part of the sand-supplier defendants to warn of any hazards connected to the product. Harmotta and Phillips countered with the assertion that the evidence had demonstrated that bulk sand carried a latent risk of harm, i.e. silicosis, making it unsafe for its intended use in the absence of warnings, thereby satisfying the threshold criteria for finding the product unreasonably dangerous, and allowing the court to make the social policy decision that the jury should be permitted to consider the imposition of strict liability.

Defendants also argued that they were entitled to judgment upon Harmotta’s and Phillips’ negligence CQunts, where the evidence at trial did not demonstrate that the defendant sand suppliers acted unreasonably in relying upon Harmotta’s and Phillips’ employer, U.S. Steel Corporation (U.S. Steel), to communicate to its employees any dangerous condition associated with the usage of the product. In response, Harmotta and Phillips noted that they did not have the burden to prove that the defendants acted unreasonably, but rather, that the defendants, asserting a “sophisticated user” affirmative defense to negligence, had the burden of demonstrating the reasonableness of their conduct, and that reasonableness is generally a question for the jury.

The trial court held plaintiffs had presented sufficient evidence to permit the matter to proceed to the jury on both strict liability and negligence theories of recovery.

On April 26, 1990, at the close of defendants’ evidence, Harmotta and Phillips moved for a compulsory nonsuit on both the defendants’ breach of a strict liability to warn, as well as their breach of the negligent duty to warn, maintaining that the only remaining issue for jury determination was whether the breach of the duty to warn had proximately caused the injuries to Harmotta and Phillips. The defendants moved for directed verdicts, again alleging that the evidence was insufficient as a matter of law to demonstrate that bulk sand was an unreasonably dangerous product for purposes of strict liability, or that the defendant sand suppliers had acted unreasonably in relying upon U.S. Steel to communicate any dangers connected to silica usage to its employees. All of these motions were denied and the matter was submitted for jury consideration on both strict liability and negligence theories.

On May 3,1990, the jury returned a $22,500 verdict for the Harmottas and against Best and PGS and a $22,500 verdict for the Phillips and against PGS only. Each verdict was based upon the finding of strict liability under section 402A of the Restatement (Second) of Torts. Timely post-trial motions for judgment n.o.v. were denied and this appeal followed.

In reviewing the denial of a judgment n.o.v., the decision of the trial court should not be reversed in the absence of an abuse of discretion or an error of law which controlled the outcome of the case. Williams v. A-Treat Bottling Co., 380 Pa.Super. 195, 551 A.2d 297 (1988).

Initially, having carefully reviewed the record regarding Best’s contention the trial court erred in denying its motions for summary judgment in the Harmotta case based upon collateral estoppel principles, we agree and reverse the judgment entered against Best.

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. 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. Summary judgment should not be entered unless the case is clear and free from doubt. 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 a matter of law. Pa.R.C.P. No. 1035, 42 Pa.C.S.A.

Lower Lake Dock Co. v. Messinger Bearing Corp., 395 Pa.Super. 456, 460-61, 577 A.2d 631, 634 (1990) (citations omitted).

Collateral estoppel is appropriate where: (1) the issue decided in the prior action was identical with the one presented in the later action; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication; and (4) the party against whom the plea is asserted has had a full and fair opportunity to litigate the issue in question in a prior action.

Grant v. GAF Corp., 415 Pa.Super. 137, 149, 608 A.2d 1047, 1053 (1992).

In denying summary judgment to Best on the collateral estoppel issue, the trial court stated “a workmens compensation claim is clearly distinguishable from a common law tort claim, including one based on strict products liability.” Order, Creany, S.J., 7/31/89, p. 1. The court found the issues involved in the cases differed in that, generally, in worker’s compensation actions, disability resulting from work place conditions is the only issue for decision, while in products liability actions, the injury caused by a defective product is the issue under review. We find this distinction is not meaningful or controlling, as it was previously rejected by McCullough v. Xerox Corp., 399 Pa.Super. 135, 581 A.2d 961 (1990), alloc. den., 527 Pa. 624, 592 A.2d 45 (1991), wherein this Court stated:

Appellant argues, however, the issue presented to and decided by the referee was a narrowly defined statutory one, i.e., had appellant suffered an occupational disease injury. In light of our previous discussion, though, this argument is without basis. As we stated, the referee found unequivocally appellant’s injury was not work-related, and appellant had failed to sustain her burden of proof. This failure was grounded not in appellant’s inability to establish her sarcoidosis as an occupational disease injury, for her claim proceeded without that determination, but rather, in appellant’s inability to prove the causation of her injury was aggravated, accelerated or related in any way to her work for Xerox. This was the central issue in appellant’s workmen’s compensation claim, just as it is instantly, and appellant was afforded a full and fair opportunity to litigate the issue before the referee. As that judgment is now final, appellants are estopped from pursuing the identical issue in a common law tort action. To find otherwise would be to undermine the concept of workmen’s compensation which has served the workers and economic structure of our society so well.

Id. at 143-14, 581 A.2d at 966.

More recently, this Court addressed the collateral estoppel issue in Grant, supra, where the plaintiffs brought workmen’s compensation actions against the defendant for injuries allegedly sustained in the workplace. While these claims were pending, plaintiffs brought common law tort actions for the same injuries. Their complaints focused more on the defective product rather than their disabilities resulting from poor conditions in the workplace. This Court affirmed the trial court’s grant of summary judgment based on collateral estoppel.

The doctrine of collateral estoppel is not unavailable simply because administrative procedures are involved; where the agency is acting in a judicial capacity and resolves disputed issues of fact which the parties had an opportunity to litigate, the court’s will not hesitate to apply preclusion principles.
[T]he principles of collateral estoppel apply to judgments from worker’s compensation boards.
The issue of causation, injury as a result of exposure in the workplace, was decided adversely to the plaintiffs in the workmen’s compensation proceeding and thus recovery in a subsequent tort action is precluded.

Id. at 151, 153-155, 608 A.2d at 1055, 1056.

Grant applies directly to the facts in this case. Harmotta filed a workmen’s compensation action against U.S. Steel which was denied by the referee, who adopted the expert opinion of the U.S. Steel’s doctor as opposed to Harmotta’s doctor in finding Harmotta was not suffering from any occupationally acquired lung disease, as there was no definite evidence of silicosis. In essence, Harmotta, through the civil action, asked the court to relitigate the exact issue which already had been decided adversely to him; that is, whether his employment was the cause of his injuries. In his complaint, Harmotta alleged: “As a direct and proximate result of the inhalation of the silica dust and silica sand contained in the products of defendants, plaintiff contracted silicosis with associated complications, which resulted in his total disability.” Harmotta Complaint, 1/17/86, paragraph 14. Thus, the first of the four conditions necessary for an appropriate application of collateral estoppel has been met — the issues raised in the proceedings are identical.

Second, there must have been a final judgment on the merits in the initial proceeding. Harmotta argues the decision by the referee was not final because worker’s compensation decisions inherently lack finality in that the nature of occupational diseases is that one’s condition can worsen and can become disabling over time, thus giving one the opportunity to reassert one’s claim at a later date. Harmotta contends his injury has progressed and, therefore, the decision by the referee is stale and should not have collateral estoppel effect. According to the Workmen’s Compensation Act, 77 P.S. § 833, Witnesses; books and other writings; findings of fact, unless a decision of a referee is timely appealed, the referee’s findings of fact become final as a matter of law. Harmotta did not appeal the referee’s decision nor did he refile for worker’s compensation benefits. Instead, Harmotta chose to file a civil tort action on January 16, 1986, before the referee even handed down his decision. Moreover, the medical report of Dr. Pickerell, specifically adopted by the referee, was dated March 6, 1986. The report indicates Dr. Pickerell examined Harmotta on March 3, 1986, about six weeks after the Harmottas filed their civil suit. Harmotta’s “progression of the injury” argument is, therefore, disingenuous and rendered to be totally without merit.

The third element of collateral estoppel is not in dispute. Harmotta, against whom the doctrine is being raised, is the plaintiff here, as he was in the worker’s compensation proceeding.

Finally, we must determine whether Harmotta had a full and fair opportunity to litigate the issue in question during the worker’s compensation proceedings. The referee was presented with expert medical reports from both sides and testimony from Harmotta. Neither party objected to the reports and both parties waived cross-examination on these issues. Although Harmotta now claims the compensation proceedings were limited in that medical reports were submitted and cross-examination did not take place, this does not negate the fact the opportunity for further hearings, testimony and cross-examination was available. We disagree with Harmotta’s argument and the trial court’s determination that Harmotta litigated only the “disability” not the “injury.” This is a distinction without a difference. Harmotta was represented by counsel at all times during the worker’s compensation hearing and we find he was given a full and fair opportunity to present his case before the referee.

Harmotta also argues even assuming the elements of collateral estoppel are present, application of this doctrine in this case would violate his constitutional right to a trial by jury under Article I, section 6, of the Pennsylvania Constitution and also would violate the doctrine of separation of powers. We reject Harmotta’s arguments based upon the recent and detailed analysis of these issues set forth by this Court in Grant, supra.

Even in the absence of the application of collateral estoppel to this case, appellees could not have prevailed as no action would have been available because of the manner in which we have ruled subsequently as to strict liability of its provider under the “sophisticated user” doctrine.

Accordingly, based upon the court’s error in failing to grant summary judgment for Best on the grounds of collateral estoppel, we vacate the judgment entered against Best and enter judgment n.o.v. for Walter C. Best, Inc., at No. 01651 Pittsburgh, 1991.

As to appellant PGS, PGS argues the trial court erred in denying its motion for judgment n.o.v. because its product was neither defective nor unreasonably dangerous and, therefore, the strict liability question never should have reached the jury. The trial court found “the question of whether the danger existing in the defendant’s sand was a proper question for a jury and not one for the Court to make as a matter of law.” (Slip Op., Creany, S.J., 8/23/91, p. 2.) After considering the circumstances, the law and social policy concerns, we agree with PGS the trial court erred in submitting the issue of strict liability for PGS’ failure to warn appellees of the dangers inherent in its product.

Initially, in order for strict liability to apply, it is necessary to determine whether silica is “unreasonably dangerous.” Dambacher by Dambacher v. Mallis, 336 Pa.Super. 22, 485 A.2d 408 (1984), appeal dismissed, 508 Pa. 643, 500 A.2d 428 (1985). Before turning over the case to the jury, the court must decide whether strict liability should be imposed. Mackowick v. Westinghouse Electric Co., 525 Pa. 52, 575 A.2d 100 (1990).

While the manufacturer’s responsibility for injuries resulting from the lack of warning as a defect in the product is an expansion of the supplier’s role as a guarantor of a product’s safety, it was not intended to make the manufacturer an insurer of all injuries caused by the product. See Azzarello v. Black Bros. Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978).

Ellis v. Chicago Bridge & Iron Co., 376 Pa.Super. 220, 225, 545 A.2d 906, 909 (1988) (footnote omitted). In deciding whether a product is unreasonably dangerous, a trial court must examine social policy questions and determine whether the risk of loss should be placed upon the supplier. “When a products liability claim is pleaded the trial judge makes a threshold determination whether as a matter of social policy the case is appropriate for treatment under the rubric of products liability. In making this determination the judge acts as a combination social philosopher and risk-utility economic analyst.” Id. at 228, 228 n. 6, 545 A.2d at 910 n. 6 (citation omitted). The court must balance “the utility of the product against the seriousness and likelihood of the injury and the availability of precautions that, though not foolproof, might prevent the injury.” Burch v. Sears, Roebuck & Co., 320 Pa.Super. 444, 450, 467 A.2d 615, 618 (1983), citing Schell v. AMF, Inc., 567 F.2d 1259 (3d Cir.1977). In Dambacher, supra, and most recently in Fitzpatrick v. Madonna and Outboard Marine Corporation, 424 Pa.Super. 473, 623 A.2d 322 (1993), this Court identified additional factors for a court to consider in such situations.

The California Supreme Court has identified the following factors: the gravity of the danger posed by the challenged design; the likelihood that such danger would occur; the mechanical feasibility of a safer design; the financial cost of a safer design; and the adverse consequences to the product and to the consumer that would result from a safer design. Barker v. Lull Engineering Co., Inc., 20 Cal.3d 413, 431, 143 Cal.Rptr. 225, 237, 573 P.2d 443, 455 (1978). Dean Wade [Wade, On the Nature of Strict Tort Liability For Products, 44 Miss.L.J. 825 (1973)] has formulated a similar list:
(1) The usefulness and desirability of the product — its utility to the user and to the public as a whole.
(2) The safety aspects of a product — the likelihood that it will cause injury, and the probable seriousness of the injury.
(3) The availability of a substitute product which would meet the same need and not be as unsafe;
(4) The manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility.
(5) The user’s ability to avoid danger by the exercise of care in the use of the product.
(6) The user’s anticipated- awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions.
(7) The feasibility, on the part of the manufacturer, of spreading the loss of setting the price of the product or carrying liability insurance.
Wade, supra at 837-38 (footnote omitted).

Id., 424 Pa.Super. at 476-77, 623 A.2d at 324 quoting Dambacher, supra at 50 n. 5, 485 A.2d at 423 n. 5.

While recognizing there is a latent danger in the long-term use of silica sand, there is no substitute for silica sand in the industrial process and no safer alternative is available. More importantly, appellees, the users of the product, knew or should have known of the hazard, which was reasonably avoidable through the use of personal respirators supplied to appellees by U.S. Steel. Another policy factor to consider is that the cost of PGS directly and effectively warning foundry-men about the silica hazard would be unrealistically high and impractical. Since the foundrymen did not receive the shipments of the sand, they would never receive PGS’s written warnings. In the alternative, it would be prohibitively expensive and unduly burdensome to require suppliers to orally warn each worker and continuously monitor them to make sure they were wearing their respirators. Therefore, PGS cannot feasibly reduce the risk to end-users such as appellees and the strict liability question never should have reached the jury.

We also find under the facts of this case, application of the sophisticated user doctrine provides a supplier such as PGS a defense to strict liability. Section 388 of the Restatement (Second) of Torts, otherwise known as the sophisticated user doctrine, provides as follows:

§ 388. Chattel known to be Dangerous for Intended Use One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which it is supplied, if the supplier
(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.
Comment n to section 388, Warnings given to third person, states that a supplier’s duty to warn is discharged by providing information about the product’s dangerous propensities to a third person upon whom it can reasonably rely to communicate the information to the ultimate users of the product or those who may be exposed to its hazardous effects.

As there is no Pennsylvania case specifically addressing the issue, we now specifically hold section 388 may be used as a defense to strict liability as well as negligence actions.

In Smith v. Walter C. Best, Inc., 927 F.2d 736 (3rd Cir. 1990), a case factually similar to the case at bar, the Court of Appeals for the Third Circuit followed Ohio law in applying section 388 to find the defendants, suppliers of silica sand, were not strictly liable to the end-user/employee of the firm which had purchased the sand from defendants. We find the Third Circuit’s adoption of the following logic from Higgins v. E.I. Dupont de Nemours, Inc., 671 F.Supp. 1055 (D.Md.1987), to be persuasive:

[In] addition to the fact that the authorities reviewed above have concluded that the standards for negligent and strict liability failure to warn are essentially the same, this court independently finds nothing about failure to warn in the context of strict liability that is inconsistent with- the principles encompassed in comment n to § 388. Quite simply, both negligent and strict liability failure to warn involve the same questions of scope of duty and causation: (1) To what extent did the supplier act reasonably in communicating or failing to communicate a warning? (2) Given information supplied by the supplier, was the failure of a sophisticated user to communicate an effective warning to an employee or other ultimate user an intervening cause of injury? Prosser points out, it is really only the immunity of strict liability to negligence-based defenses (like contributory negligence) that distinguishes strict liability from negligence in failure to warn cases. This distinction does not militate against making the sophisticated user/bulk supplier defense available in a § 402A strict liability failure to warn claim.

Smith, supra, 927 F.2d at 742 (footnote omitted), quoting Higgins, supra, 671 F.Supp. at 1060.

Appellees contend holding the employer responsible under the sophisticated user doctrine would unjustifiably absolve the supplier of any duty to warn ultimate users and would contravene the nondelegability principle of Berkebile v. Brantley Helicopter Corp., 462 Pa. 83, 102-104, 337 A.2d 893, 903 (1975). In addressing this very same argument, the court in Kennedy v. Mobay Corp., 84 Md.App. 397, 579 A.2d 1191 (1990), affirmed per curiam No. 152, Special Term, 1990, 325 Md. 385, 601 A.2d 123, (1992), stated as follows:

There is a duty to warn of defects or propensities that make a product hazardous, and that duty does extend ordinarily to those who may reasonably be expected to use or come into harmful contact with the product. It is not a duty, we think, from which the supplier can be entirely absolved. The question, rather, is, what conduct will suffice to discharge that duty?
Viewed in that context, the defense is not only logical but necessary. Where it is impracticable for the supplier to give adequate warnings directly to all who may use or come into contact with the product, some substitute for such direct warnings is required, even in strict liability cases. Otherwise, as Messrs. Schwartz and Driver observed, supra, strict liability would become, in effect, absolute liability. As comment n to Restatement § 388 makes clear, the focus remains on the conduct of the supplier, but that conduct is judged in light of the circumstances. Among those circumstances are the feasibility of giving direct warnings to all who are entitled to them and, where that is not feasible, whether the supplier acted in a manner reasonably calculated to assure either that the necessary information would be passed on to the ultimate handlers of the product or that their safety would otherwise be attended to. In such a situation, that is all that reasonably can be asked and it is all, we think, that the law requires. The Fourth Circuit Court of Appeals, applying Virginia law in Willis v. Raymark Industries, Inc., 905 F.2d 793 (4th Cir.1990), made the point exactly, stating at 797: “Comment n clearly focuses on what the product manufacturer knew and the reasonableness of its reliance on the employer prior to and during the time the workers were exposed.” (Emphasis omitted.)

Id. at 413, 579 A.2d at 1199. Under section 388, the supplier remains under a duty to warn end-users, but can rely on a knowledgeable employer to convey the warnings. In this situation, the supplier is not delegating its duty, and it still can be found liable for end-users’ injuries if its reliance upon the employer was unreasonable under the circumstances. Here, the facts show PGS’s reliance upon U.S. Steel was reasonable since, as early as the 1940’s and 1950’s, due to its large role in the Industrial Health Foundation, which was formed to study silicosis and other occupational diseases, U.S. Steel had full knowledge of the potential hazards of extended exposure to silica. Moreover, U.S. Steel was in the best position to warn the workers by promoting safety through the use of air monitoring devices and respirators and to monitor the use of this equipment.

The extension of workplace warnings liability unguided by practical consideration has the unreasonable potential to impose absolute liability in those situations where it is impossible for the manufacturer to warn the product user directly. In the workplace setting, the product manufacturer often cannot communicate the necessary safety information to product users in a manner that will result in reduction of risk. Only the employer is in a position to ensure workplace safety by training, supervision and use of proper safety equipment. Designating the manufacturer an absolute insurer of its product removes the economic incentives that encourage employers to protect the safety of their employees.

Schwartz and Driver, Warnings In The Workplace: The Need For A Synthesis Of Law And Communication Theory, 52 U.Cin.L.Rev. 38, 43 (1983).

Further, since the jury found appellants were not negligent for failing to warn appellees, it follows PGS could not be found strictly liable after applying the section 388 defense.

The facts surrounding PGS’s delivery of the sand in bulk and unpackaged form and reliance upon U.S. Steel for warnings are almost identical to the facts in Smith, supra, wherein the court stated as follows:

Based upon the record in this case we believe that it was reasonable for the sand suppliers to assume that Valley Mould knew of the dangers of silica given the state of common medical knowledge at all relevant times, the various statutes and regulations governing silica, and the fact that Valley Mould was a member of the Industrial Health Foundation, a non-profit organization providing information to its members relative to occupational diseases (including silicosis) and their prevention. This reasonable assumption of knowledge, coupled with the duty owed by Valley Mould to provide its workers with a safe working environment and the virtual impossibility of the sand suppliers reaching the ultimate users, is, in our view, sufficient to satisfy the Restatement standard and to justify the sand suppliers’ reliance on Valley Mould, as a knowledgeable purchaser, to warn the ultimate sand users.

Smith, supra, 927 F.2d at 742.

In conclusion, upon consideration of social policy implications, the trial court erred in determining PGS’s product was defective or unreasonably dangerous under 402(A) and thereby erred in sending the strict liability issue to the jury. Accordingly, we reverse the judgments entered against PGS in both the Harmottas’ and Phillips’ cases since application of the sophisticated user/bulk supplier doctrine necessitates a finding PGS was not strictly liable for failing to warn appellees of the dangerous propensities of its product.

The judgments entered at Nos. 01545 and 01651 Pittsburgh, 1991 are vacated.

Judgment n.o.v. entered for Pennsylvania Glass Sand Corporation, now known as U.S. Silica Company, at Nos. 01545 and 01651 Pittsburgh, 1991.

Judgment n.o.v. entered for Walter C. Best, Inc., at No. 01651 Pittsburgh, 1991.

Jurisdiction relinquished.

Concurring and dissenting statement by HUDOCK, J.

HUDOCK, Judge,

concurring and dissenting in a statement.

I join only that portion of the majority opinion which affirms the grant of summary judgment against the Harmottas based on the principle of collateral estoppel. Notwithstanding the ambiguous statement by the trial court in its 1925(a) statement, my review of the record convinces me that the court implicitly made the threshold determination that, absent warnings, the silica sand and/or flour in this case was unreasonably dangerous and thus subject to the rubrics of strict liability. Such a threshold determination need not be express. See Dambacher by Dambacher v. Mallis, 336 Pa.Super. 22, 485 A.2d 408 (1986) (en banc) (in the absence of a motion requesting the court to make explicit its ruling on the threshold determination of social policy, it will be presumed that, in permitting the case to go to the jury, the determination was made against the defendant).

Additionally, I cannot concur in the social policy determination conducted by my colleagues by which they reach the conclusion that, despite the latent danger, the strict liability question should not have reached the jury. I would find that the strict liability cause of action was properly submitted to the jury. As Appellants conceded that no warnings were given by them, the next matter placed at issue is whether the sophisticated user doctrine should be recognized as a defense to strict liability. Since the majority found the strict liability issue should not have been submitted to the jury, its “holding” that the doctrine is an affirmative defense is dicta.

Finally, I disagree with the statement in dicta that the sophisticated user doctrine should be allowed as a defense to strict liability under the facts of this case. Comment (n) to Section 388 states, “a supplier’s duty to warn is discharged by providing information about the product’s dangerous propensities to a third person upon whom it can reasonably rely to communicate the information to the ultimate consumers ...” My review of the record reveals no evidence that Appellants provided such information to the steel industry. Appellants cannot wholly rely on the “sophisticated user” in discharging their duty.

I would reverse the verdict against Walter C. Best, Inc., in the Harmotta appeal, but otherwise affirm the jury awards to the Harmottas and the Phillipses.

      . The Harmottas' contention this issue has not been preserved for review is without merit. Appellants have argued consistently throughout the proceedings the trial court erred in its pretrial ruling summary judgment was not proper.

      . While appellee Harmotta states there was no testimony taken from the medical experts at the compensation hearing (appellee’s brief at 29), appellant Best points out that in addition to Mr. Harmotta’s testimony, Dr. Klemens, who also submitted a written report, testified on behalf of Harmotta.


author: JOHNSON, Judge: McEWEN, Judge,

text:
    630 A.2d 885
    June C. WAPNER and Keith L. Wapner, H/W, Individually and as Parents and Natural Guardians of Charles P. Wapner and Peter W. Wapner, Their Minor Children, Appellants, v. Herbert J. SOMERS, M.D. and Robert Somers, M.D.
    Superior Court of Pennsylvania.
    Argued March 10, 1993.
    Filed Aug. 24, 1993.

      James E. Beasley, Philadelphia, for appellants.
    Daniel F. Ryan, Plymouth Meeting, for appellees.
    Before McEWEN, JOHNSON and HOFFMAN, JJ.
   JOHNSON, Judge:

This is an appeal from an interlocutory order sustaining preliminary objections by Herbert J. Somers to counts 50-52 in the Complaint filed by June C. and Keith L. Wapner individually and on behalf of their minor children Charles and Peter Wapner. The order, which was certified to this Court by the trial court as involving a controlling issue of law, dismissed Charles and Peter Wapner’s claim for the loss of the consortium of their mother. We affirm.

This appeal arises in the context of a medical malpractice action filed by June Wapner against Dr. Herbert Somers and Dr. Robert Somers, not a party to this appeal, for failure to timely diagnose Mrs. Wapner’s breast cancer. In conjunction with that claim, Mrs. Wapner’s husband and children filed derivative claims for loss of spousal and parental consortium due to Mrs. Wapner’s severe illness and incapacity.

Dr. Herbert Somers filed Preliminary Objections, in the nature of a Motion to Strike, requesting the trial court to strike certain paragraphs of the Complaint for failure to comply with Pa.R.C.P. 1019(a), which were denied. Dr. Somers also filed Preliminary Objections, in the nature of a Demurrer, to the claim of loss of parental consortium which the trial court sustained, concluding that there was no legal basis for such a cause of action.

In support of their contention that Pennsylvania should now recognize claims for loss of parental consortium, the Wapners claim that failure to do so deprives the children of equal protection under Article 1, Section 11, of the Pennsylvania Constitution. In addition, the Wapners allege that Pennsylvania should recognize a cause of action for loss of parental consortium under circumstances in which the alleged tortfeasor could have foreseen such a loss as a natural consequence of their negligence. The Wapners maintain that since Dr. Somers knew that the children for whom the claim is made are afflicted with cerebral palsy and are totally dependant upon their mother for their care, this Court should now extend to these children the previously unrecognized cause of action of loss of parental consortium. We disagree.

In Steiner by Steiner v. Bell Telephone Co. of Pennsylvania, 358 Pa.Super. 505, 517 A.2d 1348 (1986), aff'd. per curiam, 518 Pa. 57, 540 A.2d 266 (1987), this Court, sitting en banc, addressed the issue of whether a cause of action for the loss of parental consortium should be recognized. In that case, the child’s purported claim arose when the child’s mother attempted to be connected to the police by a Bell Telephone operator when someone broke into their home. The mother was put on hold twice before her emergency call was connected. Shortly thereafter, the intruder interrupted the call and raped the mother. The mother suffered emotional problems after her attack which resulted in family discord and disruption.

In Steiner, we carefully considered the arguments by all parties to that case both in favor of and against recognizing a cause of action for loss of parental consortium. Id. 358 Pa.Super. at 509-516, 517 A.2d at 1350-1354. We also reviewed and analyzed the case law from other jurisdictions on this issue. Id. at 516-517, 517 A.2d at 1354. In that case, we held that no cause of action for the loss of parental consortium would be recognized in Pennsylvania. Id. at 522, 517 A.2d at 1357.

In Steiner, supra, we based our decision on several factors. First, we recognized that there is no historical basis for such a claim as the common-law cause of action for loss of spousal consortium stemmed originally from a husband’s right to sue for the loss of consortium for his wife. A loss of consortium recovery was originally considered compensation for the deprivation of a possessory right on behalf of the husband and the cause of action was unavailable to wives whose husbands suffered similar injuries. However, Pennsylvania eventually extended the right to sue for the loss of spousal consortium to wives. See Hopkins v. Blanco, 457 Pa. 90, 320 A.2d 139 (1974).

We also recognized, in Steiner, the differences between spousal and filial relationships which justify the differential treatment between spouses and children. There, we stated:

Spouses enter into their relationship freely and by choice and do so to bind one another together into a permanent unity. A child, however, has no control over the commencement of the parent/child relationship, and rather then [sic] trying to become one with his parents, he perpetually strives to develop from a totally dependent person to one which is entirely independent. Although both relationships involve love, companionship, affection, guidance and care, the nature of those elements, the means by which they reach those' ends is subtly but intrinsically different. Therefore, although identical labels can be attached to the elements of the spousal relationship and the parent/child relationship, substantively the relationships are different and not comparable.

Id. 358 Pa.Super. at 518-519, 517 A.2d at 1355.

In Steiner, we were also reluctant, on public policy grounds, to judicially expand tort liability when this is properly the role of the legislature. Id. at 521-522, 517 A.2d at 1356-1357. The legislature would be better able to weigh the costs to society, in terms of increased insurance premiums and other costs, against the benefits to the children of tort victims. The legislature would also be able to set limits as to the amount and types of claims which could be brought.

This Court again considered the issue of whether a child can sustain a cause of action for the loss of parental consortium in Schroeder v. Ear, Nose and Throat Association of Lehigh Valley, Inc., 383 Pa.Super. 440, 557 A.2d 21, appeal denied, 523 Pa. 650, 567 A.2d 653 (1989). There, we recognized that the claim for the loss of parental consortium was controlled by the holding in Steiner, supra, and we affirmed the trial court’s dismissal of such a claim, as presenting no legally recognized cause of action.

In the present case, the Wapners contend that the children are denied equal protection under Article 1, Section 11, of the Pennsylvania Constitution through Pennsylvania’s nonrecognition of loss of parental consortium claims. That section states:

All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay.

It is clear that Article 1, Section 11, can be invoked only with respect to a legal injury. Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975) citing Jackman v. Rosenbaum Co., 263 Pa. 158, 106 A. 238 (1919), aff'd, 260 U.S. 22, 43 S.Ct. 9, 67 L.Ed. 107 (1922). A legal injury is one for which the law recognizes a remedy or a cause of action. Jackman 263 Pa. at 168, 106 A. at 241. Nothing in Article 1, Section 11 can be construed as requiring that this Court create a legally recognized injury where none had previously been recognized. In fact, our supreme court has stated that even where a legal injury had previously been recognized at common law, it may be abolished by the legislature or may change and evolve over time to point where it would no longer constitute a compensable right, without there being a violation of Article 1, Section 11, of the Pennsylvania Constitution. Singer, 464 Pa. at 399-400, 346 A.2d at 903.

This issue was also addressed by this Court in Steiner, supra, where we rejected the notion that nonrecognition of a loss of parental consortium claim amounted to a constitutional violation. There, we stated:

[B]ecause there is no constitutional mandate compelling us to recognize a cause of action for loss of parental consortium, because there is presently no legal basis for allowing the cause of action, because there is no general or growing consensus that such a cause of action should be established, and because to allow such a cause of action is a policy determination which can most thoroughly and representatively be considered by the legislature, we do not recognize a child’s cause of action for loss of parental consortium due to tortious interference of a third party.

Steiner at 522, 517 A.2d at 1357.

In addition, the Wapners assert that their case is unique and requires a re-examination of Pennsylvania policy as articulated in Steiner because here, Dr. Somers could foresee the harm that would result to the children due to their mother’s illness and incapacity.

We agree that foreseeability of harm is a crucial element to establishing a claim in negligence. However, as this case involves a derivative claim, we are examining the extent of a tortfeasor’s liability, after negligence has been established. We are unable to conclude that because an appellant can establish that the alleged harm suffered by the children was foreseeable to the alleged tortfeasor, we are thus compelled to create an entirely new cause of action. Pennsylvania, through its courts, has chosen not to extend the right to sue for damages to children whose parents are injured regardless of whether those injuries can be proved or whether the risk of harm to the children were known in advance to the tortfeasor. This is the public policy line that our courts have drawn limiting the extent of liability for any single tortious act. Moreover, the fact that harm to the children in this case was foreseeable does not permit a panel of this Court to overrule what is the established precedent of this Commonwealth.

After due consideration of the Wapner’s claim, we conclude that it does not assert a cause of action recognized in this Commonwealth. We, therefore, affirm the order of the trial court.

Order Affirmed.

McEWEN, J., files a concurring opinion.

McEWEN, Judge,

concurring.

The ruling of the majority is not, of course, subject to question, and so I rush to agreement with the eminent author of the majority Opinion and his perceptive expression of the presently prevailing law of this Commonwealth upon the claim of a child for loss of parental consortium. I proceed, however, to this concurring effort because I am so firmly convinced that tortious behavior so impacts upon the entire family of the injured party that each member of the family is a victim.

If one were to select a particular component of the vast change to which this latter half of the 20th Century has been witness, surely the ascendancy of the individual would find prominent mention. That ascendancy, though forced upon government and the other institutions of our society, is demonstrated by an enormously enhanced awareness of the worth and stature and dignity of the individual. We reap such a harvest in the present half century due, of course, to the toil and effort, sacrifice and struggle of those who, during the first half of this century, wrested from government and the affluent and the corporations, if not a respect for the dignity of each individual, a begrudging acceptance of the equality of each individual.

Intrinsic to the notion of the dignity of the individual is the right of the individual to be free from unwanted interference, intrusion — and harm. It is wrongful to harm, criminally so when intentional, and tortiously so when unintentional. And, of course, sanction must follow the infliction of harm — the imposition of penalty for criminal harm pursuant to the mandate of the natural law, and, as well, the imposition of damages for unintentional harm pursuant to the command of our Constitution that:

... every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law____

Article I, Section 11, Constitution of the Commonwealth of Pennsylvania.

This Court, as the majority states, in Steiner by Steiner v. Bell Telephone Co. of Pennsylvania, 358 Pa.Super. 505, 517 A.2d 1348 (1986) aff'd, 518 Pa. 57, 540 A.2d 266 (1988), declined the opportunity to recognize a cause of action by a child for loss of parental consortium. Our venerable colleague Judge John G. Brosky found himself unable to join the rationale of the majority in that case and reflected the view that children should not be denied a cause of action for loss of parental consortium when he entreated:

The compensation of those who have wrongfully suffered losses is the very heart of our system of civil justice. Absent an affirmative reason why a person should not be so compensated, a cause of action should be allowed to proceed.

Steiner by Steiner v. Bell Telephone Co. of Pennsylvania, supra, 358 Pa.Super. at 522, 517 A.2d at 1358. As evidenced by this concurring expression, I echo that plea.

A major measure of the vast social change earlier mentioned has been accomplished by jurisprudential initiative, and, it might even be suggested, the Pennsylvania Supreme Court has set the pace. It is undisputed that one accused of a crime in Pennsylvania enjoys broader rights of personal liberty than have been mandated by the United States Constitution. As for the civil courtroom, that court has made the individual the sure and certain beneficiary of jurisprudential enlightenment and has delivered due heed to the foregoing constitutional declaration as revealed, inter alia, by these decisions:

Sinkler v. Kneale, 401 Pa. 267, 164 A.2d 93 (1960). The Court established the right of an infant to pursue a cause of action for damages for prenatal injuries.
Flagiello v. Pennsylvania Hospital, 417 Pa. 486, 208 A.2d 193 (1965). The Court abolished the doctrine of charitable immunity.
Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). The Court adopted the principle of strict liability in tort of a manufacturer or seller of a defective product.
Beckham v. Travelers Ins. Co., 424 Pa. 107, 225 A.2d 532 (1967). The Court abandoned the artificial distinction between accidental means and accidental results in the determination of liability under policies of insurance.
Reitmeyer v. Sprecher, 431 Pa. 284, 243 A.2d 395 (1968). The Court held that failure of a landlord to carry out a promise to repair defective premises (made at the time of negotiation of the lease) imposed upon the landlord a liability in tort for damages or injuries suffered by the tenant as a result of the defect.
Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848 (1968). The Court held that a purchaser was no longer required to show privity in an assumpsit suit against remote manufacturers for breach of implied warranty.
Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970). The Court decided that an injured individual may recover from a negligent party even though the injuries arose in the absence of actual impact.
Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970). The Court established a right of recovery for emotional distress caused by intentional and wanton acts.
Smalich v. Westfall, 440 Pa. 409, 269 A.2d 476 (1970). The Court abrogated the principle which imputed the contributory negligence of a driver to an owner-passenger.
Falco v. Pados, 444 Pa. 372, 282 A.2d 351 (1971). The Court abrogated the doctrine of parental immunity.
Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973). The Court abolished the doctrine of governmental immunity.
Hopkins v. Blanco, 457 Pa. 90, 320 A.2d 139 (1974). The Court established the right of the wife to recover for loss of consortium.
Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978). The Court abolished the doctrine of sovereign immunity.
Speck v. Feingold, 497 Pa. 77, 439 A.2d 110 (1981). The Court held that the parents of a genetically defective child, born due to the negligence of physicians in performing vasectomy and abortion procedures, had a cause of action in tort against the physicians for the recovery of expenses attributable to the birth and raising of the child, and for the mental stress and physical inconvenience attributable to the birth of the child.

Almost two decades ago our Supreme Court declared that the infliction of an injury upon an individual causes the spouse of the injured individual to suffer every bit as much when the spouse is the wife of the injured party as when the wife is the injured party. Hopkins v. Blanco, supra. When a woman is injured and is both wife and mother, it is difficult to understand that, while her husband is entitled to a recovery for the suffering imposed upon him by the injury inflicted upon his wife, her children are precluded from recovery for the suffering imposed on them by the injuries inflicted upon their mother. Such a preclusion simply cannot stand the scrutiny of logic. Surely the child of an injured party is as much a victim of tortious behavior as the spouse.

The legislature reflected just such a perspective when in 1989 it spurned the inane palaver of the new sociology and redeclared a commitment to the concept that the family is the foundation of society by proclaiming in the Family Preservation Act:

§ 2172. Legislative findings and declarations of policy
(a) Findings. — The General Assembly finds and declares that:
(1) The family is the basic institution in society in which our children’s sense of self-esteem and positive self-image are developed and nurtured. These feelings and values are essential to a healthy, productive and independent life during adulthood.
(b) Declarations. — It is therefore the policy of this Commonwealth that:
(1) The unique bond which exists between parent and child must be recognized as fundamental to the growth and development of children.

62 P.S. § 2172(a)(1) and (b)(1).

§ 2174. Family Preservation Program
(b) Purpose. — The Family Preservation Program shall be designed to preserve families through the creation, within families, of positive, long-term changes which will enable children who are victims of neglect or abuse or whose parents lack the ability to control their child’s behavior without in-home family support to remain with their families, thereby reducing the more expensive and potentially psychologically damaging incidence of out-of-home placement in foster care or group homes.

62 P.S. § 2174(b).

It is asserted that the decision to consider the child of an injured party as much a victim of tortious behavior as the spouse and to confer upon the child a right of recovery for the sadness and suffering a tortfeasor inflicts upon the family, will effect an increase in the cost of insurance. Proposed revision of the law invariably triggers dire intonement of fearful consequences. A review of the aforecited litany of decisions reveals that the proponents of revision were consistently confronted by a vested choir rendering in crescendo a familiar score of woeful consequences, including a flood of litigation, the sad abandonment of stare decisis, and the feast supplied to the schemer sector of the populace. The Supreme Court was impervious to these challenges. Once again, the cries are heard, though the wolf be nowhere near for, in this instance, application of cost/benefit principles will demonstrate that the cost factor, namely, the premium increase, is so minimal as to enable sole focus upon the worthiness of the concept of child consortium.

Nor may it be validly asserted that the Pennsylvania Supreme Court would thereby usurp the function of the legislature since the concept of loss of consortium has its origin in the common law. As our Supreme Court stated in clear and emphatic fashion:

In response to arguments that the Court should defer to legislative action, we stated in Flagiello v. Pennsylvania Hospital, [417 Pa. 486, 508, 208 A.2d 193, 202 (1965)]: “[T]he controverted rule [charitable immunity] is not the creation of the Legislature. This Court fashioned it, and what it put together, it can dismantle. ” (Emphasis added.) Again in Falco v. Pados, 444 Pa. 372, 382, 282 A.2d 351, 356 (1971) (quoting Badigian v. Badigian, 9 N.Y.2d 472, 481, 174 N.E.2d 718, 724, 215 N.Y.S.2d 35, 43 (1961)), we said: “ ‘... it is urged, that, if there is a remedy it must be given by the Legislature, if there is to be a change, it may not be effected by the courts. This court has heard such arguments before and has answered them by saying that, where the rule is court made, it may be court modified if reason and a right sense of justice recommend it (citations omitted).’ So too, in recent years this Court has had the fortitude and wisdom to effectuate changes in the law where ‘reason and a right sense of justice’ recommend it.”

Ayala v. Philadelphia Board of Public Education, supra 453 Pa. at 600, 305 A.2d at 885. Moreover, the decisions of the Supreme Court upon governmental and sovereign immunity, by reason of the subsequent attention of the legislature, proved more essentially to be invitations to the legislature to address those areas of the law than an unconstitutional intrusion by the judiciary upon a companion branch of government.

Thus it is that, during the final decade of this century of the ascendancy of the individual, the Supreme Court might discern it appropriate to revisit this issue and conclude that the suffering reflected by the notion of consortium is intrinsic to the individual as family member and not simply as spouse.

      . It might even be said that the straggle is of so recurring a nature as to seem constant:
      The whole history of the progress of human liberty shows that all concessions yet made to her august claims, have been bom of earnest struggle____ If there is no straggle there is no progress---This struggle may be a moral one, or it may be a physical one, and it may be both moral and physical, but it must be a struggle. Power concedes nothing without a demand. It never did and it never will.
      Remarks of Frederick Douglass on August 4, 1857, reprinted in 2 Philip S. Foner, The Life and Writings of Frederick Douglass 437 (1950). It was with a brogue and within but a decade that this very message inspired the Molly Maguires to confront their oppressors in the coal counties of Pennsylvania and thereby spark the organization of labor in this country.

      . Act of July 7, 1989, P.L. 218, No. 35, § 1, 62 P.S. §§ 2171 et seq.


author: HOFFMAN, Judge:

text:
    630 A.2d 891
    Naomi MUSE v. Jerry L. CERMAK and Falcon Transport, Inc., Appellants.
    Superior Court of Pennsylvania.
    Argued April 29, 1993.
    Filed Sept. 7, 1993.

      Christine M.M. Brenner, Philadelphia, for appellants.
    Stuart A. Carpey, Philadelphia, for appellee.
    Before CAVANAUGH, WIEAND and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from an order granting appellee’s motion to preclude evidence of liability. Appellants, Jerry L. Cermak and Falcon Transport, present the following issues for our review:

1. Whether the trial court erred in accepting [appellee’s] collateral estoppel argument since the inter-company agreement which provided for arbitration specifically limited the conclusiveness of arbitration decisions to the claim submitted to the panel and set forth that the decision was not res judicata nor did it have any legal or moral effect on any other claim or suit arising out of the same accident or occurrence?
2. Whether the trial court erred in determining that the elements of collateral estoppel were satisfied where [appellants] did not have a full and fair opportunity to litigate the issues and the decision has not been reduced to a final judgment?

Appellants’ Brief at 3. For the reasons set forth below, we reverse.

The relevant facts in the instant action are as follows. On January 16, 1989, appellee, Naomi Muse, and appellant-Cermak were involved in a two-vehicle collision at the intersection of Engle Street and Concord Road, Chester, Delaware County, Pennsylvania. At the time of the accident, Cermak was an employee of Falcon Transportation acting in the scope of his employment. As a result of the accident, appellee sustained numerous physical injuries, including those to her neck, back, head, chest, left shoulder and nervous system. In addition, appellee’s vehicle was damaged and required repair.

Appellee’s insurer, State Farm Mutual Insurance Company (hereinafter “State Farm”), paid for her property damage and then sought reimbursement from appellants’ insurer, Crum and Foerster c/o Toensmeier Adjustment Service, Inc. (hereinafter “Crum & Foerster”). As there was a dispute as to who was responsible for the damage to appellee’s vehicle, the insurance companies proceeded to arbitration under the Nationwide Inter-Company Arbitration Agreement (hereinafter “Arbitration Agreement”). Arbitration commenced on December 6,1990, at which time appellants were found negligent and, therefore, liable for the damage to appellee’s vehicle.

On August 15, 1990, appellee filed a complaint in the Court of Common Pleas of Delaware County, Pennsylvania against appellants for her personal injury damages sustained as a result of the January 16, 1989 accident. Subsequent to the filing of the complaint and upon the completion of the arbitration proceedings, appellee filed a motion to preclude any evidence concerning liability contending that the December 6, 1990 arbitration proceedings collaterally estopped any subsequent determination of liability. On June 15, 1992, the trial court granted appellee’s motion. On June 25, 1992, the trial court amended its order to allow an appeal to the Superior Court pursuant to 42 Pa.C.S. § 702(b). On July 22, 1992, appellants filed a petition with the Superior Court for permission to appeal. See Pa.R.A.P. 1311. Subsequently, on October 19, 1992, this court granted appellants’ petition to appeal the trial court’s order.

Appellants first contend that as the trial court erred in failing to follow the language of the Arbitration Agreement limiting the conclusiveness of arbitration decisions, the trial court improperly found that appellants were collaterally es-topped from raising the issue of liability in the instant action. We agree.

Collateral estoppel “operates to prevent a question of law or issue of fact which has once been litigated and fully determined in a court of competent jurisdiction from being relitigated in a subsequent suit.” Incollingo v. Maurer, 394 Pa.Super. 352, 356, 575 A.2d 939, 940 (1990), appeal denied, 526 Pa. 636, 584 A.2d 318 (1990). Before applying the doctrine of collateral estoppel, the following elements must be satisfied:

(1) the issue decided in the prior case is identical to one presented in the later case; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party in the prior case; (4) the party or person privy to the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding and (5) the determination in the prior proceeding was essential to the judgment.

City of Pittsburgh v. Zoning Board of Adjustment of Pittsburgh, 522 Pa. 44, 55, 559 A.2d 896, 901 (1989).

However, in light of the clear language of the Arbitration Agreement, we need not determine whether these five elements are present in the instant action. Arbitration is a matter of contract and, accordingly, in construing the language of an arbitration provision, courts must resort to the rules of contractual construction. See Johnson v. Pa. Nat. Ins. Companies, 384 Pa.Super. 92, 97, 557 A.2d 789, 791 (1989); Emlenton Area Mun. Authority v. Miles, 378 Pa.Super. 303, 308, 548 A.2d 623, 626 (1988), appeal denied, 522 Pa. 613, 563 A.2d 498 (1989). “When the words of a contract are unequivocal, they speak for themselves, and a meaning other than that expressed cannot be given them. This court will not rewrite the contract or give it a construction that conflicts with the plain, ordinary, and accepted meaning of the words.” Lindstrom v. Pennswood Village, 417 Pa.Super. 495, 502, 612 A.2d 1048, 1051 (1992).

Rule 15 of the Arbitration Agreement provides as follows:

A decision of a panel on a claim submitted under the Nationwide Inter-Company Arbitration Agreement is not res judicata to the same or similar issues in companion claims or any other claim between the arbitrating companies. It is conclusive only of the controversy in the claim submitted to the panel and has no legal or moral effect on any other claim or suit arising out of the same accident or occurrence.

Nationwide Inter-Company Arbitration Agreement, Rules and Regulations, at 3.

The Arbitration Agreement clearly provides that any decision made pursuant to the agreement will not have any preclusive effect on the outcome of similar or identical issues in companion claims. Where the terms of an arbitration agreement limit the binding effect of the award in another proceeding, we must honor those terms as part of the agreement between the parties. See Restatement of Judgments, 2nd § 84(3)(a) (“A determination of an issue in arbitration does not preclude relitigation of that issue if ... according preclusive effect to determination of the issue would be incompatible with a ... contractual provision that the tribunal in which the issue subsequently ¿rises be free to make an independent determination of the issue in question.... ”). Accordingly, as the terms of the Arbitration Agreement eliminate collateral estoppel, we find that appellants are not precluded from relitigating the issue of liability.

We reverse the order of the trial court and remand to the trial court for further proceedings consistent with this opinion.

Order reversed.

      . Both State Farm and Crum & Foerster were parties to the Arbitration Agreement.

      . In finding that appellants were collaterally estopped from litigating the issue of liability, the trial court relied, in part, upon Decision 2 of the Arbitration Agreement which provides that "[a] decision of the arbitration panel on issues of law or fact is final and binding without any right to appeal.” See Nationwide Inter-Company Arbitration Agreement, Rules and Regulations, at 8. However, we do not find the language of Decision 2 to have any effect on our disposition of the instant action. While Decision 2 provides that a decision of the arbitration panel is binding, it does not specify to what extent. In light of this ambiguity and the clear language of Rule 15, we read the preclusive language of Decision 2 to apply only to claims submitted to the arbitration panel. See Emlenton Area Mun. Authority at 308, 548 A.2d at 626 (”[w]here a contract may be interpreted in a manner giving effect to all provisions, that interpretation is preferred.").


author: TAMILIA, Judge:

text:
    630 A.2d 894
    Harold O. SENTZ and Kay C. Sentz, His Wife v. Donald J. CRABBS and Melody Crabbs, and Bryan S. Ketterman and Leatha Ketterman, Appellants.
    Superior Court of Pennsylvania.
    Submitted June 22, 1993.
    Filed Sept. 2, 1993.

      Larry W. Wolf, Hanover, for appellants.
    Thomas E. Miller, Hanover, for appellees.
    Before ROWLEY, President Judge, and TAMILIA and POPOVICH, JJ.
   TAMILIA, Judge:

The appellants, Donald J. and Melody Crabbs and Bryan S. and Leatha Ketterman, appeal from the June 19, 1992 Order dismissing their exceptions to and making final the decree nisi entered February 13, 1992, following a nonjury trial at which it was found plaintiffs/appellees held an easement by implication over an undeveloped borough alleyway which abutted appellants’ property on the south and appellees’ lots on the north.

In finding there existed an easement by implication in appellees’ favor, the court reasoned that although the plaintiffs were unable to establish definitively that title to their land was derived from a grantor common to the appellants’ lots, enough circumstantial evidence was presented to infer title probably sprang from a common source, thereby shifting to the defendants the burden to prove otherwise. (Decree Nisi, Spicer, J., 2/13/92, p. 5.) Appellants failed to do so and, therefore, were instructed to remove the fence and shed they had erected in the alleyway and cease interfering with appellees use of the alley. This conclusion was repeated and elaborated upon in the court’s Opinion addressing the appellants’ exceptions to the decree nisi. (Slip Op., Spicer, J., 6/19/92, p. 5.) Thereafter, a notice of appeal was served on this Court on August 3, 1992.

Black’s Law Dictionary, Fifth Edition, defines “implied easement” as follows:

Implied easement. One which the law imposes by inferring the parties to a transaction intended that result, although they did not express it. An easement resting upon the principle that, where the owner of two or more adjacent lots sells a part thereof, he grants by implication to the grantee all those apparent and visible easements which are necessary for the reasonable use of the property granted, which at the time of the grant are used by the owner of the entirety for the benefit of the part granted. One not expressed by parties in writing but arises out of existence of certain facts implied from the transaction.

Id., p. 458.

Appellants argue one who has enjoyed “uninterrupted possession of the land for 18 or 19 years cannot be ousted from exclusive possession on the basis of an easement by implication based solely on a deed reference that their land borders on an alley.” (Appellants’ brief at p. 8.) The essence of this argument is that some time in the history of appellants’ chains of title an alley came into use which subsequently became identified in deeds relating to the adjoining properties. Appellants are correct in asserting that this in itself does not establish an easement by implication because nothing in the chain of title establishes the creation of an easement by a grantor who was the possessor of both estates.

An easement by implication arises after it is clear that a particular division of property was created by a common grantor and, without specifying that an easement over one of the estates was granted, by implication the use of the parcel would not be possible without the existence of the easement. The use of circumstantial evidence is proper to establish the necessity for the easement to the enjoyment of the property and in tracing title back to a common grantor. However, it cannot be used, as did the trial judge, to establish that somewhere in the past there was a common grantor, although never identified, merely because there appears to be an easement. Since the easement was not established by adverse possession and no common grantor has surfaced in the chain of title to establish an easement by implication, an easement cannot exist.

Our scope of review in matters of equity is narrow and limited to determining whether the findings of fact are supported by competent evidence, whether an error of law has been committed or whether there has been a manifest abuse of discretion. Hercules v. Jones, 415 Pa.Super. 449, 609 A.2d 837 (1992). An easement by implication can be found to exist where the intent of the parties is demonstrated by the terms of the grant, the property’s surroundings and other res gestae of the transaction. King v. Rock, 415 Pa.Super. 605, 610 A.2d 48 (1992). When a deed refers to a road or driveway as a boundary, which is not a highway or dedicated to public use, an easement by implication over the lands is established in favor of the grantee. Id.

At first blush it appears King is controlling. However, both in King and the earlier case on which its reasoning rests, Auman v. Grimes, 364 Pa.Super. 243, 527 A.2d 1045 (1987), the grantees or parties to the action acquired title to their land via a common grantor. And although the trial court was correct in finding there exists no authority directly on point mandating a common grantor be established by recorded claim, we find, based on our review of case law and the very nature of an easement by implication, requiring as a predicate to its existence singular ownership at some point in time, the trial court erred by finding, based on circumstantial evidence, all titles to the lots in question sprang from a common grantor. To find otherwise would dangerously violate the Statute of Frauds as it pertains to the recordation of real property, the system on which all landowners rely to substantiate their ownership.

Accordingly, absent the documented existence of a common grantor to the properties in question at the time the easement became necessary to the enjoyment of the devised property, there can be no easement by implication. The fourteen-foot alleyway is the property of the borough and no party has an enforceable right to use the land absent an agreement with the borough. Should the borough decide some time in the future a higher public use is essential, it has full legal recourse to open the alley as a public thoroughfare, which, by letter to the parties it has declined to do at this time.

Order reversed.

Jurisdiction relinquished.