author: CIRILLO, Judge.

text:
    629 A.2d 1024
    Suzanne COSCIA v. John HENDRIE and Deborah Hendrie, Appellants.
    Superior Court of Pennsylvania.
    Argued May 20, 1993.
    Filed Aug. 18, 1993.

      James N. Gross, Philadelphia, for appellants.
    Laura Antonelli, Philadelphia, for appellee.
    Before WIEAND, CIRILLO and HOFFMAN, JJ.
   CIRILLO, Judge.

This is an appeal from an order entered in the Court of Common Pleas of Philadelphia County permitting a conveyanee of real estate purchased by appellant, John Hendrie, and his wife, Deborah Hendrie to be set aside to satisfy the judgment of $51,800.00 against John Hendrie. We affirm.

Suzanne Coscia (formerly Suzanne Hendrie) and John Hendrie were married on September 29, 1973, and separated in August, 1976. Two children were born of the marriage, and Ms. Coscia retained primary physical custody of the children. In 1981 a divorce decree was entered, dissolving the marriage. Ms. Coscia and Mr. Hendrie entered into a written agreement which stipulated that Mr. Hendrie would pay Ms. Coscia child support in the amount of $100 per week for both children. Mr. Hendrie, however, made only two payments; throughout the subsequent nine years he failed to pay support. Due to Mr. Hendrie’s unemployment, Ms. Coscia did not attempt to judicially enforce the child support agreement.

In March of 1990 Mr. Hendrie received more than $60,-000.00 from a workman’s compensation claim and a personal injury suit against his employer. Ms. Coscia subsequently filed a petition against Mr. Hendrie to enforce the child support agreement. Following an evidentiary hearing, the Honorable Nicholas Kozay, Jr. granted Ms. Coscia’s petition and entered judgment against Mr. Hendrie in the amount of $51,800.00, the amount of the child support arrearages that had accumulated since 1981. Mr. Hendrie did not appeal Judge Kozay’s order. In December, 1991 Ms. Coscia filed suit against Mr. Hendrie and his common law wife, Deborah Hendrie, pursuant to the Pennsylvania Uniform Fraudulent Conveyance Act, which in relevant part provides:

Every conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent, is fraudulent as to creditors, without regard to his actual intent, if the conveyance is made or the obligation is incurred without a fair consideration.

39 Pa.S.A. § 354.

In the fraudulent conveyance action Ms. Coscia sought to have the -conveyance of certain real property owned by John and Deborah Hendrie as tenants by the entireties set aside, thereby subjecting it to the pro tanto claim of her judgment against John Hendrie. A bench trial was held before the Honorable Thomas B. Rutter, Pro Tempore, who rendered judgment in favor of Ms. Coscia. It is this judgment from which the Hendries appeal.

Mr. and Mrs. Hendrie raise four issues for our review:

(1) Whether the trial court erred in finding that Mr. Hendrie was insolvent at the time of the real estate transaction in May of 1990?
(2) Whether the trial court erred in finding that Suzanne Coscia was a creditor of John Hendrie’s at the time of the real estate transaction in 1990?
(3) Whether the trial court erred in its application and interpretation of the case of First National Bank of Marietta v. Hoffines, 429 Pa. 109, 239 A.2d 458 (1968) in holding that John Hendrie’s marriage to Deborah Hendrie failed to serve as fair consideration from which the real estate transaction of May, 1990 was then deemed fraudulent?
(4) Whether the trial court erred in arriving at its conclusion of law in light of the sufficiency and the weight accorded to the plaintiffs evidence?

W^hen reviewing the decision of a bench trial, this court is limited to determining whether the findings of the trial court are supported by competent evidence or whether the trial court committed error in any application of the law. Spang & Co. v. USX Corp., 410 Pa.Super. 254, 599 A.2d 978 (1991).

For the purposes of the Uniform Fraudulent Conveyance Act “[a] person is insolvent when the present, fair, salable value of his assets is less than the amount that will be required to pay his probable liability on existing debts as they become absolute and matured.” 39 Pa.S.A. § 352(1). When a creditor establishes that a grantor was in debt at the time of conveyance, the burden shifts to the grantees to establish by clear and convincing evidence, either that the grantor was then solvent and not rendered insolvent by the conveyance, or that he received fair consideration for the conveyance. Garden State Standardbred v. Seese, 417 Pa.Super. 15, 611 A.2d 1239 (1992); Speiser v. Schmidt, 387 Pa.Super. 30, 563 A.2d 927 (1989).

In addressing Mr. Hendrie’s first claim the record reflects that Mr. Hendrie was indebted to Ms. Coscia in the amount of $46,000.00 in overdue child support. During this time, Mr. Hendrie, as grantor, purchased property in his and Deborah Hendrie’s name with his own funds. Such indebtedness raised Ms. Coscia to the status of creditor. The burden then shifted to Mr. and Mrs. Hendrie, as grantees, to establish either that Mr. Hendrie was solvent or that he received fair consideration from Mrs. Hendrie for the conveyance. The record clearly indicates that Mr. Hendrie’s assets were outweighed by his existing debts. Therefore, based on the record and in accordance with the standard set forth in Garden State and Speiser, the trial court properly determined that the Hendries failed to establish solvency on the part of Mr. Hendrie. Thus, this claim is without merit.

The Hendries next assert that Ms. Coscia was not a creditor of Mr. Hendrie at the time of the real estate conveyance. The Fraudulent Conveyance Act defines creditor as follows:

“Creditor” is a person having any claim, whether matured or unmatured, liquidated or unliquidated, absolute, fixed, or contingent.

39 Pa.S.A. § 351.

It is well established through judicial interpretation that Pennsylvania adheres to the majority view which regards property held by tenants by the entireties as unavailable to creditors of one of the tenants. Stinner v. Stinner, 300 Pa.Super. 351, 446 A.2d 651 (1982). However, when a spouse conveys individual property to a tenancy by the entireties in fraud of creditors, a creditor may nevertheless execute against the conveyed property. Stinner, supra; Garden State, supra; See generally 39 Pa.S.A. § 359. Mr. Hendrie’s transfer of funds from a bank account, titled solely in his name, into property held by the entireties with Deborah Hendrie was an attempt to defraud Ms. Coscia of the child support owed her, and, as such, is a fraudulent conveyance and may be set aside. Id. In addition, it is well settled that a creditor’s claim is a legal liability which need not result as a verdict of trial. Melat v. Melat, 411 Pa.Super. 647, 602 A.2d 380 (1992); Continental Bank v. Marcus, 242 Pa.Super. 371, 363 A.2d 1318 (1976). Ms. Coscia’s claim for child support is not mere allegation, rather it is a legal obligation, acknowledged and guaranteed by Mr. Hendrie’s signing of the 1981 divorce agreement. See City of Philadelphia v. Stepan Chemical Company, 713 F.Supp. 1491, (E.D.Pa.1989) (a contractual obligation constitutes a “claim” sufficient to render the obligee a creditor of the obligor; interpreting Pennsylvania Uniform Fraudulent Conveyance Act). Therefore, due to Mr. Hendrie’s default of this legal obligation, Ms. Coscia is entitled to assume the status of creditor for the real estate transaction, and in accordance with Stinner, she may execute against the conveyed property.

Mr. Hendrie next contends that the trial court erred in finding that the real estate transaction lacked consideration. We disagree. The trial court properly applied First National Bank of Marietta v. Hoffines, 429 Pa. 109, 239 A.2d 458 (1968), where the issue was whether, under the Fraudulent Conveyance Act, certain conveyances of realty by the endorser of a demand note to his wife and himself as tenants by the entireties were fraudulent. There, the Pennsylvania Supreme Court rejected the contention that “fair consideration” was to be found in payment for services allegedly rendered by the wife over the years on the couple’s farm. Id. at 115-17, 239 A.2d at 463. Furthermore, the court in Stinner reaffirmed Hojfines, holding that domestic services provided by one spouse to another spouse fails to satisfy the burden of proving fair consideration for a conveyance. Moreover, the record indicates that the real estate was purchased with funds from accounts held solely and individually in the name of John Hendrie. Therefore, since Deborah Hendrie did not possess an ownership interest in the accounts, and her services as John Hendrie’s wife do not constitute fair consideration, the trial court properly concluded that the transaction lacked fair consideration.

We find the Hendries’ final claim challenging the weight and sufficiency of the evidence is completely without merit. The burden of proof at trial was on the Hendries to establish by clear and convincing evidence that John Hendrie was solvent on the date of the real estate conveyance or that Deborah Hendrie paid fair consideration. Stinner, supra. However, as evidenced by our disposition of their first three issues, the Hendries failed to meet such burden. The trial court was left with no alternative but to render judgment in favor of Ms. Coscia.

Having found the trial court’s judgment in favor of Ms. Coscia to be supported by competent evidence and without error, we affirm. Spang, supra.

Order affirmed.


source: Caselaw Access Project

author: BECK, Judge.

license: Public Domain

text:
    629 A.2d 1027
    Virgil and Margaret JUNGE, Appellants, v. GARLOCK, INC., Pacor, Inc., Eagle-Picher Ind., GAF Corp., Keene Corp., Raymark Ind. Inc., Celotex Corp., Southern Textile Co., J.P. Stevens Co., Owens-Illinois Glass Co., Fibreboard Corp., and Forty-Eight Insulation, Inc.
    Superior Court of Pennsylvania.
    Argued March 4, 1993.
    Filed Aug. 19, 1993.

      Suzanne Reilly, Philadelphia, for appellants.
    Leslie A. Miller, Philadelphia, for appellees.
    Before CAVANAUGH, BECK and HUDOCK, JJ.
   BECK, Judge.

In this asbestos personal injury action, the trial court granted defendant Garlock, Inc.’s pre-trial motion to dismiss on the ground that plaintiffs Virgil and Margaret Junge failed to meet their prima facie burden of proving that Garlock’s asbestos products caused Virgil Junge’s asbestosis. We reverse.

Virgil Junge was employed as a boiler and machinery technician and repairman by the United States Navy and the Philadelphia Naval Shipyard over a period of thirty years. During that time, he personally handled Garlock asbestos sheet gaskets, flanges and packing. These materials would harden and become brittle with age, and Junge would have to dig, scratch, scrape, electric wire-brush and sand them in order to remove them from pipes, boilers and other machinery. Junge’s work was conducted in the close confines of the ships’ boiler rooms and machinery spaces, with his face an inch or two from the materials, and the process created dust that Junge breathed. These routines were executed daily, eight hours a day.

The parties agreed that William Fineman, M.D., plaintiffs pulmonologist expert, would testify in accordance with his report that Junge had asbestos related disease, and that each breath of dusty air that Junge drew substantially contributed to the causation of his disease.

Defendant Garlock concedes that its materials contain asbestos, and that asbestos fibers are released during their use. However, Garlock produced a report by Carl Mangold, an industrial hygienist, who opined that Garlock asbestos products are “encased” or “encapsulated,” and as a result emit a low level of asbestos dust in use. Through the additional testimony of a medical expert, defendant would argue that these low emissions could not have been a substantial factor in causing Junge’s asbestosis.

During pre-trial proceedings, Garlock made an oral motion to dismiss; the trial judge heard testimony from plaintiff Junge and argument from counsel. Despite Junge’s testimony, which positively identified Garlock’s product and described Junge’s proximate, frequent and regular exposure to dust emitting from it, Judge Mazer Moss held that because Junge had no industrial hygienist to combat Garlock’s expert testimony, he could not prove that Garlock products were a substantial cause of his condition. The court dismissed the claims against Garlock because Junge “could not identify the asbestos fiber levels in [the] dust” he breathed. Junge, 23 Phila. at 564. This was error.

Our case law includes no requirement that a plaintiff in an asbestos case prove through an industrial hygienist, or any other kind of opinion witness, how many asbestos fibers are contained in the dust emissions from a particular asbestos containing product. Instead, in order to make out a prima facie case, it is well established that the plaintiff must present evidence that he inhaled asbestos fibers shed by the specific manufacturer’s product. Eckenrod v. GAF Corp., 375 Pa.Super. 187, 544 A.2d 50, 53 (1988), alloc. den., 520 Pa. 605, 553 A.2d 968 (1988). A plaintiff must establish more than the presence of asbestos in the workplace; he must prove that he worked in the vicinity of the product’s use. Id. See also Gross v. Johns-Manville Corp., 410 Pa.Super. 486, 600 A.2d 558 (1991); Godlewski v. Pars Mfg. Co., 408 Pa.Super. 425, 597 A.2d 106 (1991). A plaintiff may defeat a motion for summary judgment only when he meets these elements of regularity, frequency and proximity. Eckenrod, 375 Pa.Super. at 192-93, 544 A.2d at 53; Samarin v. GAF Corp., 391 Pa.Super. 340, 571 A.2d 398, 404-05 (1989). In this case, Junge has met his prima facie burden of proof.

Junge positively identified the Garlock products with which he worked. He testified that he personally worked within an inch of the gaskets and packing on a regular, daily basis; this was not a case of “fiber-drift” throughout a large area. Junge testified that his work produced “all kinds of dust,” such that he would have to “turn around, blow [his] nose and spit this stuff out.” Garlock does not dispute that its gaskets and packing material contained and emitted asbestos. The evidence would have established that Junge inhaled asbestos fibers shed by Garlock products, and under Eckenrod, supra, a prima facie case of liability was presented.

Garlock argues, however, that Junge could never prevail because he did not produce evidence to show that his exposure to its encapsulated products was a substantial factor in causing his disease. We disagree. Garlock’s products emit asbestos dust, and Dr. Fineman was prepared to testify that every breath of dust contributed to Junge’s condition. This medical opinion, together with Junge’s own testimony, created a question of fact; the facts in this case do not “lead unerringly to but one conclusion.” Baran, supra 402 Pa.Super. at 306, 586 A.2d at 982.

The trial court’s holding that plaintiffs in asbestos actions must present an industrial hygienist who can measure the amount of asbestos fibers emitted by a specific asbestos containing product before they may reach the jury is erroneous. No such requirement exists, and we decline to create it here.

What does exist in this case is a prima facie showing of liability, and a credibility contest between the parties’ experts. Credibility questions are for the jury. Scott v. Purcell, 490 Pa. 109, 415 A.2d 56 (1980); Garcia v. Savage, 402 Pa.Super. 324, 586 A.2d 1375 (1991). The Junges have met their prima facie burden of proof and are entitled to present their claims to a jury. See Lilley, supra 408 Pa.Super. at 103-05, 596 A.2d at 213. We reverse the judgment in favor of Garlock, and remand this case for trial.

Reversed and remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.

      . It is not clear what kind of motion actually was granted below. Garlock made its oral "Motion to Dismiss” prior to trial, on the ground that plaintiffs had failed to carry their prima facie burden to prove liability. During oral argument on the motion to dismiss, the Honorable Sandra Mazer Moss stated that the case was "beyond a summary judgment.” Nor was this a true compulsory nonsuit, as the parties had not begun trial. It appears that Judge Mazer Moss was attempting to save the plaintiffs the expense of a trial where it seemed clear that a nonsuit ultimately would be entered. We note that the trial judge, in making her ruling, did consider the evidence proffered by defendant Garlock on the motion to dismiss, and this would be improper on a motion for nonsuit. Pa.R.Civ.P. 230.1. See Eisenhauer v. Clock Towers Ass., 399 Pa.Super. 238, 582 A.2d 33 (1990); Storm v. Golden, 371 Pa.Super. 368, 538 A.2d 61 (1988). Moreover, were this a true nonsuit, plaintiffs would be required to file a motion to remove the nonsuit prior to filing an appeal to this court. Pa.R.Civ.P. 227.1. See Panepinto v. Dummy’s Delightful Saloonery, 304 Pa.Super. 256, 450 A.2d 668 (1982). For purposes of this appeal, we recognize that in any case where judgment is entered in favor of defendant as a matter of law, whether on demurrer, summary judgment, or nonsuit, we must review the record in the light most favorable to the plaintiff, drawing all reasonable inferences in his or her favor. See, e.g., Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991) (summary judgment); Firing v. Gephart, 466 Pa. 560, 353 A.2d 833 (1976) (demurrer); Baran v. Pagnotti Enterprises, Inc., 402 Pa.Super. 298, 586 A.2d 978 (1991) (nonsuit).

      . Mangold reported that Garlock’s products emitted airborne asbestos fibers at a rate below the OSHA standard of 2 per cc. greater than 5 um. in diameter. Junge v. Garlock, 23 Phila. 560, 562 (1992).

      . Obviously, the facts of this case are distinguishable from situations where the plaintiff has not sufficiently identified the particular product to which he or she was exposed, or proffered evidence that the product identified actually contained asbestos.

      . A further factual dispute is presented by the Junges’ argument that Garlock’s industrial hygienist tested only one of the Garlock products used by Junge — "gaskets” but not "packing”. Garlock contends that "packing” and "gaskets” are two terms that refer to the same product.

      . Garlock improperly cites several unpublished memoranda in which the plaintiffs' claims were dismissed in the absence of an industrial hygienist’s testimony regarding the amount of asbestos fibers emitted by a particular product. Jones v. Garlock, Inc., Oct. Term 1980, No. 4671 (July 11, 1988), aff’d by Memorandum decision, Pa.Super. No. 3363 Phila. 1987 (filed Jan. 10, 1989); Nogan v. GAF Cotp., Civ. No. 88-0334, 1989 WL 161541 (M.D.Pa. May 24, 1989); Stanukenas v. Carey Canada, Civ. No. 90-1049 (M.D.Pa. June 14, 1991). Garlock also points to published opinions from various federal courts and other state courts which reach similar conclusions. We are not bound by these decisions.

      . Garlock’s argument is a variation of the ”de minimis” argument rejected by this court in Lilley v. Johns-Manville Corp., 408 Pa.Super. 83, 596 A.2d 203 (1991), alloc. den. 530 Pa. 644, 607 A.2d 254 (1992). In Lilley, plaintiff established that he had breathed asbestos fibers shed by Fibreboard Corp.’s product, and his medical expert testified that even one day’s worth of such inhalation constituted a “substantial contributing factor” of his asbestos related disease, id. at 94, 596 A.2d at 208. This court held that Fibreboard was not entitled to an instruction specifically defining "substantial contributing factor” or a charge regarding the de minimis effect of certain products to which plaintiff had been "minimally exposed". A charge which explained the requirements of Eckenrod was sufficient to instruct the jury as to the plaintiff’s burden of proof. Id. 40 Pa.Super. at 97-99, 596 A.2d at 210. Further, the court held that where plaintiff’s medical expert opined that "every breath” contributed to his disease, the jury would not have to know exactly how much asbestos from each defendant's product he actually had inhaled to find liability. Id. Finally, Fibreboard argued that Lilley had produced insufficient evidence to support the inference that products manufactured by itself and Garlock (including asbestic gaskets) had contributed to his medical condition, and that a directed verdict against plaintiff was warranted. This court disagreed, and considered Lilley's evidence that he utilized Garlock gaskets, and breathed dust from other asbestos containing products, together with evidence of proximity, sufficient to go to the jury. Id. at 103-05, 596 A.2d at 213.


author: TAMILIA, Judge:

text:
    629 A.2d 1031
    Deena J. BOLZE, Appellant, v. Thomas E. BOLZE, Ronald P. Bolze and Ruth O. Bolze.
    Superior Court of Pennsylvania.
    Argued May 19, 1993.
    Filed Aug. 19, 1993.
    Theresa B. Male, Harrisburg, for appellant.
    Michael D. Reed, Harrisburg, for Ruth O. Bolze, appellee.
    Before TAMILIA, KELLY and HUDOCK, JJ.
   TAMILIA, Judge:

Plaintiff, Deena J. Bolze, appeals from the October 15,1992 Order granting the preliminary objections of defendants, Ronald P. and Ruth O. Bolze, and dismissing them as parties to the divorce action filed by plaintiff against their son, defendant, Thomas E. Bolze.

Appellant and Thomas Bolze were married on October 18, 1987. On June 9, 1992, appellant filed a complaint in divorce seeking, in addition to the dissolution of her marriage, alimony, alimony pendente lite, equitable distribution, counsel fees and expenses. Husband’s parents, owners of the home in which the couple resided, were joined only as to count three of the complaint which sought equitable distribution of the marital property. It was the wife’s contention she had a legal interest in the marital residence because she had allegedly invested $15,000 of her pre-marital savings toward improving the house, making it, in part, marital property. In granting the appellees’ preliminary objections, the court found joinder in this divorce action to be improper under the allegations stated in the complaint.

Appellant argues Pennsylvania substantive and procedural law mandates joinder under the specific facts of this case. She further contends the court erred by requiring her to have alleged unjust enrichment and resulting trust in her divorce complaint as a condition for joinder of appellees. In support of her position, wife relies primarily on Wolf v. Wolf, 356 Pa.Super. 365, 514 A.2d 901 (1986), and Van Buskirk v. Van Buskirk, 527 Pa. 218, 590 A.2d 4 (1991).

When sustaining preliminary objections which would result in the dismissal of an action, the objections should be sustained only in a case which is clear and free from doubt. Bower v. Bower, 531 Pa. 54, 611 A.2d 181 (1992); Engle v. Engle, 412 Pa.Super. 425, 603 A.2d 654 (1992). When considering preliminary objections, the fact-finder must determine whether the pleader will be able to prove facts legally sufficient to establish his right to relief. Id. In deciding whether to sustain or deny preliminary objections as to jurisdiction, the court must consider the evidence in the light most favorable to the alleged non-party. Id.

As stated supra, appellant and her husband were married in October, 1987, at which time the house in question was being rented by appellees to other tenants. Sometime in 1988, appellant expressed an interest in living in the house, which was a second house located on the farm where appellees also resided, and the tenants were asked by appellees to vacate the premises. Appellant and her husband were thereafter tenants at will, enjoying rent-free living without any obligation or agreement to pay related taxes and/or insurance. Sometime before filing for divorce on June 9, 1992, appellant left the marital residence.

Based on the facts with which we are presented, we agree with the trial court’s finding the money expended by wife on improvements made to the marital home was a gift, voluntarily contributed without expectation of reimbursement. In both Wolf and Van Buskirk, supra, relied upon by appellant for the proposition joinder was proper, the parents held title to the residence and the parties to the divorce action living in the home had “paid either a mortgage payment based upon an agreed price for the purchase of said home[,] or [a] deed had been signed and was not recorded, all indicating an intent to transfer title.” (Slip Op., Rehkamp, J., 10/15/92, p. 2.) Without any indication the appellees had an agreement to transfer title to their son, or to Deena and Thomas Bolze as a couple, the marital residence is not marital property subject to equitable distribution as contemplated by the Divorce Code. Any improvements of the property were without consideration and did not create a proprietary interest in the property on the part of the husband or wife. There is, therefore, nothing that the improvements did to create a marital interest which is subject to equitable distribution. The benefit to husband and wife was personal and mutual and could not establish an estate in the property without acknowledgement or consent of the husband’s parents. In providing a free residence they did not intend the appellant to unilaterally create a marital estate. Accordingly, joinder was improper and the preliminary objections were correctly sustained.

Order affirmed.

      . Husband, Thomas Bolze, has not participated in the proceedings incident to his parents’ preliminary objections, nor is he party to this appeal.

      . The record is unclear as to when the appellant and her husband moved into appellees’ home.

      . Because the time frame during which appellant and her husband lived in the home is not stated with exactitude, we can only calculate from the record and pleadings it to be approximately four years.

      . Marital property is all property acquired by either patty during the marriage. 23 Pa.C.S. § 3501.

      . Although appellant in the “summary of argument” portion of her brief argues trial court error regarding the court’s suggestion she pursue the theories of unjust enrichment and resulting trust, her refusal to do so at the trial level and failure to present the issue in the "statement of questions involved” portion of her appellate brief precludes any further consideration of the issue by this Court. Moreover, appellant had the opportunity to amend her pleading as of right following the filing of preliminary objections but chose not to do so. Pa.R.C.P. 1028(c)(1).


author: POPOVICH, Judge:

text:
    629 A.2d 1032
    COMMONWEALTH of Pennsylvania, Appellee, v. Otha FOREST, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 22, 1993.
    Filed Aug. 19, 1993.

      Stephen D. Kulla, Waynesboro, for appellant.
    John M. Lisko, Asst. Dist. Atty., Waynesboro, for Com., appellee.
    Before ROWLEY, President Judge, and TAMILIA and POPOVICH, JJ.
   POPOVICH, Judge:

This is. an appeal from the judgment of sentence entered in the Court of Common Pleas of Franklin County following appellant’s conviction on two counts of delivery of a controlled substance (crack cocaine) and one count of conspiracy to deliver a controlled substance (crack cocaine). In a separate criminal action, appellant also entered a plea of nolo contendere to one count of delivery of a controlled substance (crack cocaine). In this consolidated appeal, appellant contends the lower court erred in determining the issues raised in his Pa.R.A.P. 1925 statement were waived either by prior counsel’s failure to raise the issues in post-verdict motions or by prior counsel’s failure to brief the issues when the issues were raised at the first available opportunity by new counsel. Appellant also contends that we must remand this case for a hearing on the issue of whether prior counsel was ineffective. Upon review, we find that appellant’ assertions lack merit, and we affirm.

The record reveals that appellant was represented by Michael J. Toms, Esquire, at trial. After sentencing, Attorney Toms filed a motion to modify sentence and a motion challenging the validity of appellant’s nolo contendere plea. He also petitioned the court for permission to withdraw as counsel, since some of the allegations which appellant requested Attorney Toms to raise in those motions implicated the effectiveness of his representation. Stephen D. Kulla, Esquire was appointed to represent appellant. Attorney Kulla represented appellant at a hearing on July 10, 1992, concerning his motion to modify sentence which was subsequently denied. That same day, Attorney Kulla, on behalf of present counsel, Neil Jokelson, Esquire, filed appellant’s notice of appeal.

Pursuant to Pa.R.A.P. 1925, the lower court directed Attorney Jokelson to file a concise statement of matters complained of on appeal. On October 5, 1992, Attorney Jokelson filed appellant’s Rule 1925 statement which set forth the following issues:

1. Following receipt of the Notes of Testimony which came subsequent to the sentencing of the Defendant, which sentencing took place on June 10, 1992, the instant new counsel for Defendant/Appellant, upon review of the Notes of Testimony and Motion in Arrest of Judgment and New Trial filed by predecessor counsel, present counsel seeks leave to appeal the issue of whether it was error for the trial court to allow Detective David A. Warren to be admitted as an expert witness, over defense objection (N.T. 30 of November 22,1991 at lines 2-3) “in. the conduction of investigation of undercover narcotics operations” (N.T. 31 of November 22, 1991). In no way was the qualification of Officer Warren as an expert in said field relevant to the issues at trial but such admission did allow an improper bolstering of the “credentials” of Officer Warren as set forth in N.T. 27-29 and allowed the jury to give added weight to the testimony of Officer Warren who was the crucial witness for the Commonwealth.
2. It was improper for the Court not to grant a mistrial after the Commonwealth had sheriffs unilaterally require 2 defense witnesses without their counsel to come to the District Attorney’s office and be questioned by the District Attorney. This was immediately prior to their testimony at trial and outside of the presence of the defense counsel and after one or more of the witnesses had requested the right to have counsel present, which request was disregarded by the District Attorney who did the questioning. Such overreaching was a basis for a motion for mistrial which should have been granted and constituted an improper Commonwealth attempt to discovery and/or interfere with the defense’s case.

In its opinion, the lower court noted that trial counsel raised the issue of prosecutorial misconduct in his post-verdict motions but later expressly abandoned the issue in his brief in support of those motions. See, Defendant’s Brief in Support of Motion in Arrest of Judgment and for a New Trial, § IV, p. 3. The court also noted that the issue of Officer Warren’s qualification as an expert in drug investigations was not raised in any proceeding prior to the Rule 1925 statement and, therefore, was waived. See Pa.R.Crim.P. 1123; Commonwealth v. Bleigh, 402 Pa.Super. 169, 586 A.2d 450 (1991), appeal denied, 528 Pa. 607, 596 A.2d 154 (1991) (failure to raise issue in post-verdict motion results in waiver of that issue for appeal). Accordingly, the lower court determined that neither issue was properly preserved for appeal and that appellant’s judgments of sentence should be affirmed.

Attorney Jokelson now argues that since neither issue was properly preserved for appeal, “the Trial Court should have determined whether the failure to raise either issue was a result of ineffective assistance of [trial] counsel.” Appellant’s brief, p. 8. To the contrary, at this stage of the proceedings, the trial court’s duty was to address those issues raised by counsel in the Rule 1925 statement. Present counsel did not specifically raise any issues of trial counsel’s ineffectiveness, and it is not the obligation of the trial court to raise such issues sua sponte.

We agree with counsel that a claim of ineffectiveness must be raised at the earliest stage of the proceedings in which the counsel whose stewardship is challenged no longer represents the defendant. Commonwealth v. Fuller, 353 Pa.Super. 120, 509 A.2d 364 (1986); Commonwealth v. Swavely, 382 Pa.Super. 59, 554 A.2d 946 (1989) allocatur denied, 524 Pa. 619, 571 A.2d 382 (1989); Commonwealth v. Tenner, 377 Pa.Super. 540, 547 A.2d 1194 (1988) allocatur denied, 522 Pa. 603, 562 A.2d 826 (1989). However, we disagree with counsel’s conclusion that his appellate brief is the first appropriate vehicle to assail trial counsel’s representation, i.e., trial counsel’s failure to preserve the two issues set forth in present counsel’s Rule 1925 statement. Clearly, appellant was represented by new counsel prior to the hearing concerning his motion to modify sentence and motion to challenge the validity of appellant’s nolo contendere plea, held on July 10, 1992. Thus, that proceeding was the first opportunity to assail trial counsel’s ineffectiveness. Further, present counsel began his representation of appellant prior to filing of the Rule 1925 statement, and, therefore, present counsel should have raised therein any allegations of ineffectiveness of appellant’s prior attorneys. Yet, counsel first alleged trial counsel was ineffective in this appellate brief, and appellant has not raised any allegation of Attorney Kulla’s possible ineffectiveness.

Failure to raise a particular issue in the concise statement of matters complained of on appeal may result in a waiver of that issue if that failure makes appellate review difficult. Pa.R.App.P. 1925(b); Gilmore by Gilmore v. Dondero, 399 Pa.Super. 599, 582 A.2d 1106 (1990); Commonwealth v. Phillips, 411 Pa.Super. 329, 601 A.2d 816 (1992), appeal granted 530 Pa. 665, 610 A.2d 45 (1992); Commonwealth v. Williams, 269 Pa.Super. 544, 410 A.2d 835 (1979). Instantly, appellant’s failure to raise properly the issue of trial counsel’s ineffectiveness in its Rule 1925 statement denied the lower court the opportunity to address the merits of the underlying issues. Further, by failing to challenge trial counsel’s stewardship in the Rule 1925 statement, present counsel denied the lower court the opportunity to conduct a hearing to determine whether trial counsel had a reasonable basis for his actions and whether appellant was actually prejudiced by counsel’s actions. See, Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989) (standard for ineffectiveness claims). Therefore, effective appellate review is substantially hindered, and, accordingly, we decline to address the issues of trial counsel’s ineffectiveness. Gilmore, supra, (failure to raise issue in Rule 1925 statement hindered ability of appellate court to review issue, thus, issue was deemed waived); compare, Williams, supra (failure to raise issue of trial counsel’s ineffectiveness in Rule 1925 statement may be deemed a waiver of the issue by appellate court; however, counsel failure, under the circumstances, did not preclude effective review).

Judgment of sentence affirmed.

      . We note the a transcript of the testimony at this hearing has not been included in the record.

      . We note that trial counsel specifically requested to withdraw so that allegations of ineffectiveness could be raised.


author: WIEAND, Judge.

text:
    629 A.2d 1036
    Deborah HECKER, Appellant, v. Daniel H. O'CONNELL, Sr., Appellee.
    Superior Court of Pennsylvania.
    Argued May 19, 1993.
    Filed Aug. 23, 1993.

      Elizabeth W. Fritsch, Doylestown, for appellant.
    Daniel H. O’Connell, Sr., appellee, pro se.
    Before WIEAND, HOFFMAN and CERCONE, JJ.
   WIEAND, Judge.

Is the Pennsylvania Supreme Court’s decision in Blue v. Blue, 532 Pa. 521, 616 A.2d 628 (1992), to be applied retroactively to a support order which had been entered prior to the date of that decision? The trial court held that Blue was to be given retroactive effect and vacated an order which had directed a father to contribute to the support of a daughter who was attending college. After careful consideration, we reverse.

Deborah L. Hecker (“mother”) and Daniel H. O’Connell (“father”), the parents of two children, were divorced on April 24, 1987. On August 2, 1990, father was ordered to pay one hundred sixty ($160.00) dollars per week for the support of his son, Sean, age seventeen, and to pay seventy (70%) percent of the college expenses of his daughter, Sarah, age twenty-one, who was seeking a fine arts degree at Carnegie Mellon University. This order was affirmed by the Superior Court. See: O’Connell v. O’Connell, 409 Pa.Super. 25, 597 A.2d 643 (1991).

On October 21, 1992, mother filed a “Petition For Special Relief’ in which she requested a hearing because of father’s failure to make payments required by the court’s order. Father, on November 20, 1992, filed a “Counter-Petition For Special Relief’ in which he requested that his obligation to contribute to his daughter’s education be terminated. In support of his petition, father cited Blue v. Blue, supra, which had been decided by the Supreme Court of Pennsylvania on November 13, 1992. In Blue, the Supreme Court overruled well settled Superior Court precedent and held that a parent had no duty to pay college expenses for his or her children. Once a child reached majority (eighteen) or graduated from high school, whichever occurred later, the Court held, the duty of parental support came to an end. See: Blue v. Blue, supra at 529, 616 A.2d at 632-633.

Following a hearing on mother’s and father’s petitions, the trial court agreed with father that Blue had effectively eliminated father’s obligation to contribute to Sarah’s education. An order, therefore, was entered which terminated the prior order. Mother appealed.

“At common law, an overruling decision is normally retroactive.” August v. Stasak, 492 Pa. 550, 554, 424 A.2d 1328, 1330 (1981), citing Buradus v. General Cement Products Co., 356 Pa. 349, 52 A.2d 205 (1947) and Harry C. Erb, Inc. v. Shell Constr. Co., 206 Pa.Super. 388, 213 A.2d 383 (1965). See also: Blackwell v. Commonwealth, State Ethics Comm’n, 527 Pa. 172, 182, 589 A.2d 1094, 1099 (1991). Here, however, the legislature has intervened to direct a different result. By Act 62, approved July 2, 1993, the legislature, in essence, codified the substantive law appearing in Ulmer v. Sommerville, 200 Pa.Super. 640, 190 A.2d 182 (1963) and subsequent Superior Court decisions. See: Preamble to Act 62, supra. The legislature also provided that Act 62 should be applied retroactively to November 12, 1992, one day prior to the Supreme Court’s decision in Blue.

The legislature provided, in part, as follows:

§ 4327. Postsecondary Educational Costs.
(A) General Rule. — Where applicable under this section, a court may order either or both parents who are separated, divorced, unmarried or otherwise subject to an existing support obligation, to provide equitably for educational costs of their child whether an application for this support is made before or after the child has reached 18 years of age. The responsibility to provide for postsecondary educational expenses is a shared responsibility between both parents. The duty of a parent to provide a postsecondary education for a child is not as exacting a requirement as the duty to provide food, clothing and shelter for a child of tender years unable to support himself. This authority shall extend to postsecondary education, including periods of undergraduate or vocational education after the child graduates from high school.

Act 62 of July 2, 1993, § 3.

As noted, the Act is to “apply to all ... support orders ... in effect on, executed or entered since, November 12, 1992.” Id. (emphasis added). Whether statutes are to be applied retroactively is a matter of legislative intent. See: In re 1985 Washington County Annual Fin. Report Surcharge, 529 Pa. 81, 90, 601 A.2d 1223, 1228 (1992); Flick v. Flick, 408 Pa.Super. 110, 117, 596 A.2d 216, 219-220 (1991), allocatur denied, 529 Pa. 657, 604 A.2d 249 (1992). Here, it is clear that the legislature intended the statute to take effect retroactively to prevent the invalidation of college support orders entered prior to the decision in Blue. In view of the legislature’s express intent to apply Act 62 retroactively to nullify Blue, we must vacate the order terminating appellee’s duty to contribute to the college education of his daughter.

Reversed and remanded to the trial court for reconsideration in light of Act 62. Jurisdiction is not retained meanwhile.


author: DEL SOLE, Judge.

text:
    629 A.2d 1037
    Joseph J. MARTOS, Appellant, v. Augustine CONCILIO, Esq., Appellee.
    Superior Court of Pennsylvania.
    Argued July 1, 1993.
    Filed Aug. 23, 1993.
    William T. Renz, Doylestown, for appellant.
    Frederic Roller, Philadelphia, for appellee.
    Before DEL SOLE, BECK and HESTER, JJ.
   DEL SOLE, Judge.

This is an appeal from the order of the Court of Common Pleas of Lehigh County granting the preliminary objections of the defendant, Augustine Concilio, Esquire, and dismissing the complaint of plaintiff, Joseph T. Martos. Finding no abuse of discretion or error of law by the trial court. We affirm.

In April, 1987, Martos retained the services of Concilio to represent him in a domestic action. In August, 1987, Martos and his former wife reached a preliminary agreement on a property settlement, which they modified in February, 1988 by executing a new settlement agreement. The new agreement was made part of a stipulation between Martos and his former wife, and it resolved the issues of personal property distribution and physical custody of the couple’s children. The issues of alimony, debt repayment and other financial obligations were to be decided by the trial court, since the parties could not reach an agreement. The parties agreed to abide by judicial determination on these issues.

On March 2, 1988, the stipulation to which Martos and his former wife agreed became a court order and the trial court appointed a master to conduct hearings, draw conclusions and make recommendations regarding the issues left for judicial determination.

On January 31, 1991, the trial court issued an order adopting the master’s recommendations. In response to exceptions filed by both Martos and his former wife, the trial court amended the order and partially modified the master’s recommendations. Following this disposition, the financial consequences to Martos totalled in excess of $250,000.00.

Displeased with the results under the settlement agreement, as amended in February, 1988, Martos instituted an action sounding in legal malpractice and breach of contract against Concilio. Martos alleged that he suffered damages as a result of Concilio’s alleged failure to adequately represent him in negotiations of the settlement agreement. Specifically, Martos claimed that Concilio was incompetent in advising that the previously executed agreement be opened by stipulation, thus permitting renegotiation of items which were previously foreclosed. Martos also claimed that Concilio was negligent in his calculation of damages and in his representation at various court appearances.

Concilip filed preliminary objections in the nature of a demurrer. The trial court entered an order granting the preliminary objections and finding the complaint legally insufficient, without allegations of fraud. Martos now appeals from this order.

Martos asserts that the trial court erred in granting preliminary objections which raised factual issues outside the pleadings and impermissibly constituted a “speaking demurrer” which introduced matters not in the record. He also claims that the trial court erred in holding that fraud in the inducement is an element of legal malpractice or breach of contract, when the malpractice averred in the complaint was also alleged to be independent and unrelated to the settlement agreement. We find no merit to either of these claims.

First we will address Martos’ claim that he had alleged the requisite elements to establish a prima facie cause of action for legal malpractice, and was not required to plead fraud in the inducement. Martos cites the recent decision by this court in Collas v. Garnick, 425 Pa.Super. 8, 624 A.2d 117 (1993), as controlling. In Collas, the plaintiffs were involved in an automobile accident and, under the advice of their attorney,' settled the matter with the driver of the other automobile by signing a general release. Prior to the execution of the release, the plaintiffs specifically asked about other possible lawsuits and were assured by their attorney that the release would have no effect on any subsequent actions against other potential tortfeasors. Thereafter, the plaintiffs attempted to sue the manufacturer of the vehicle’s seatbelts; however, their claim was barred by the general release and the action was dismissed. We held that counsel’s advice concerning the effect of the release was negligent, and that because the plaintiffs were not alleging an inadequacy in the settlement but were instead complaining that counsel negligently gave them bad advice concerning a written agreement, the plaintiffs were not required to allege fraud in the inducement. The prior action in which they signed the release had been completely settled; the action which they planned to bring against the seatbelt manufacturer was a separate and distinct action. It was in regard to this separate action that counsel failed to exercise the requisite degree of skill to which his clients were entitled. Therefore, we held that the requirement that the plaintiff plead fraud in the inducement when challenging counsel’s representation regarding settlement, which was pronounced in Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnick, 526 Pa. 541, 587 A.2d 1346, reh. denied, 528 Pa. 345, 598 A.2d 27, cert. denied, — U.S.-, 112 S.Ct. 196, 116 L.Ed.2d 156 (1991), was inapplicable. Thus, Collas differs from the instant case, which involves only a single settlement with no other actions contemplated. No other potential lawsuits are implicated apart from Martos’ divorce settlement, which was a continuous process and had no possible effect on any subsequent action. Therefore, the reasoning in Collas is inapplicable to the instant matter.

Instead, the reasoning of Muhammad pertains to the action brought by Martos against his attorney. In Muhammad, the Pennsylvania Supreme Court stated:

This case must be resolved in light of our longstanding public policy which encourages settlements. Simply stated, we will not permit a suit to be filed by a dissatisfied plaintiff against his attorney following a settlement to which that plaintiff agreed, unless that plaintiff can show he was fraudulently induced to settle the original action. An action should not lie against an attorney for malpractice based on negligence and/or contract principles when that client has agreed to a settlement. Rather, only cases of fraud should be actionable.

Muhammad at 546, 587 A.2d at 1348.

Here, the record reveals that Martos explicitly agreed to the modifications of the stipulation which merged the original settlement agreement. Martos further agreed to allow the trial court to decide certain aspects of marital distribution. He cannot now be permitted to assuage his dissatisfaction with the consequences of his decision to settle by seeking redress against his attorney, absent a specific allegation of fraudulent inducement. Indeed, as we stated in Miller v. Berschler, 423 Pa.Super. 405, 621 A.2d 595 (1993):

Post-Muhammad, a party dissatisfied with the settlement agreement can only seek redress if it can establish that it was fraudulently induced into agreeing to settle, and it is incumbent on the client to plead with specificity fraud in the inducement.

Miller at 406-07, 621 A.2d at 595 (quoting Muhammad at 552-553, 587 A.2d at 1351) (emphasis added).

Therefore, because Martos failed to plead with specificity fraud in the inducement, the trial court did not err in finding Martos’ complaint legally insufficient and in dismissing it. Because the complaint was legally insufficient on its face, the other issue raised by Martos concerning which facts were considered by the trial court in its decision to grant Concilio’s preliminary objections is rendered moot. Regardless of whether the trial court erred in its consideration of factual matters, the fact that Martos’ complaint failed to include the specific allegations of fraud precludes our granting the relief sought by Martos on appeal. Accordingly, we affirm the order of the trial court.

Order affirmed.


author: ROWLEY, President Judge.

text:
    629 A.2d 1040
    ESTATE OF Sam R. KELLER, Deceased. Appeal of Philip PETRULLI.
    Superior Court of Pennsylvania.
    Argued April 28, 1993.
    Filed Aug. 25, 1993.

      Joseph D. Talarico, Pittsburgh, for appellant.
    W. Arch Irvin, Jr., Pittsburgh, for appellee.
    Before ROWLEY, President Judge, and TAMILIA and BROSKY, JJ.
   ROWLEY, President Judge.

At issue in this appeal is a challenge to the last will and testament of Sam R. Keller, which was admitted to probate on April 1, 1991. Paragraph 7 of the will provides for a specific bequest of $20,000.00 to appellant Philip Petrulli. Paragraph 13 of the will provides that a beneficiary who challenges the will shall forfeit his bequest. Nevertheless, after receiving the sum of $20,000.00 from the decedent’s estate, appellant filed a petition for citation in which he challenged the testamentary capacity of the decedent and alleged that the decedent had breached an oral agreement to devise one-third of his estate to appellant in return for services to be performed.

In response, the trial court issued a citation to the executrix to show cause why the “Decree of Probate” should not be set aside and the issue of the decedent’s testamentary capacity be submitted to a jury. Following argument, the trial court entered the following order:

AND NOW, to-wit, this 31st day of August, 1992, it appearing to the Court that the Petition to Dismiss Citation Sur Appeal From Probate and for Order to Refund Legacy is controlled by In Re: Hickman’s Estate, 308 Pa. 230, 162 A. 168 (1932) and Miller’s Estate, 166 Pa. 97, 31 A. 58 (1895), it is hereby ADJUDGED, ORDERED and DECREED that: 1. Philip J. Petrulli shall refund to the Estate of Sam R. Keller the sum of Twenty Thousand ($20,000) Dollars; or in the alternative, he may place that same amount into an escrow account where it shall be held jointly by Attorneys Joseph D. Talarico [counsel for appellant] and W. Arch Irvin, Jr. [counsel for the Keller estate] and may not be withdrawn until further order of court.
2. In the event that funds are not returned within thirty (30) days under the terms set forth in paragraph 1., Philip J. Petrulli’s request in count 4 of his Petition that the court set aside the Last Will and Testament of Sam R. Keller based upon testimentary [sic] capacity shall be stricken.

In this timely appeal from the order of August 31, 1992, appellant raises a single issue: Did the trial court err in ordering him to forfeit his specific legacy in order to pursue his claim of lack of testamentary capacity? We conclude that appellant misperceives the effect and, consequently, the finality of the trial court’s order. In the trial court’s own words, “the court’s order of August 31, 1992 ... set[s] forth specific provisions for disposition of a direct bequest during the pendency period of the litigation” (Trial Court Opinion at 1; emphasis added). The order gives appellant not one, but two choices: 1) to return the legacy of $20,000.00 to the estate, or 2) to place that sum in an escrow account, to be held jointly by his counsel and counsel for the estate. Although the trial court states in its opinion of November 20, 1992, that “the principle enunciated in Hickman — ‘a legatee may contest a will only after returning his legacy* — is here controlling” (Trial Court Opinion at 3), the court goes on to say that appellant “must return $20,000 to the estate (or, in the alternative, place it in an escrow account), or admit the validity of Keller’s Will. Miller’s Estate, 159 Pa. [575] at 574 [28 A. 443]” (Trial Court Opinion at 4; emphasis added).

We note, as did this Court in In re Estate of Simpson, 407 Pa.Super. 1, 595 A.2d 94 (1991), alloc. denied, 529 Pa. 622, 600 A.2d 538 (1991), that the existence of a forfeiture clause does not, without more, require that the penalty of forfeiture be imposed against a legatee who challenges the will. Rather, the relevant question is whether the challenger had “probablis causa litigandi” (i.e., probable cause of litigation), a question to be answered by the court distributing the estate. Id. at 11, 595 A.2d at 99. “If it is not clear, or if it is doubtful whether there was probable cause, the will of the testator should be regarded as supreme, and his direction to forfeit carried out.” Id. [quoting In re Friend’s Estate, 209 Pa. 442, 448, 58 A. 853, 855-56 (1904) ]. As we read the order of August 31,1992, the trial court has not yet directed appellant to forfeit his legacy.

Moreover, with regard to appellant’s quantum meruit claim, the court makes the following observation:

[W]e consider the issue of Petrulli’s entitlement to recover for services rendered to Keller appropriate for the court’s consideration. But since Petrulli could, if unsuccessful in his quantum meruit petition, be forced under the forfeiture clause of Keller’s Will to surrender his bequest, the court’s order simply guarantees the preservation of the estate’s assets while affording Petrulli the opportunity to try his case.

Trial Court Opinion at 4 (emphasis added).

Given these statements by the trial court, as well as the wording of the court’s order, we are constrained to conclude that the order is not final and appealable, as it does not end the litigation, dispose of the entire case, or effectively put appellant out of court with respect to his entitlement to the $20,000 legacy. See Mothered v. Burkhart, 400 Pa.Super. 408, 414, 583 A.2d 1180, 1184 (1990) (en banc). Nor do we consider the order in question to be appealable under the collateral order doctrine: Hankin v. Hankin, 338 Pa.Super. 442, 455, 487 A.2d 1363, 1370 (1985) [quoting Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978) ]. Because appellant has been given the option of placing the amount of his legacy in an escrow account pending the conclusion of the litigation, his claimed right to retain the legacy will not be irreparably lost “if review is postponed until final judgment in the case.” At a minimum, therefore, the third requirement for an appealable collateral order has not been satisfied.

[T]he Pennsylvania courts have held that an ancillary order is appealable if “(1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost.”

“Because the question of appealability implicates the jurisdiction of [this] Court, a non-waivable matter,” Motheral v. Burkhart, 400 Pa.Super. at 414, 583 A.2d at 1184, we are permitted, and in fact required, to determine the appealability of the order appealed from. In the present case, we conclude, for the reasons set forth above, that the trial court’s order of August 31, 1992, is neither a final order nor an appealable collateral order. We are therefore required to quash this appeal.

Appeal quashed.

      . The trial court addressed the merit of appellant’s claim in the interest of judicial economy, but noted that appellant had in fact waived the claim by failing to file exceptions to the order of August 31, 1992. Given our disposition, we are not required to decide whether appellant has preserved the claim for our review.


text:
    629 A.2d 1042
    Dennis K. WERKMAN and Jacqueline Werkman, Husband and Wife, Appellees, v. ERIE INSURANCE EXCHANGE, Appellant.
    Superior Court of Pennsylvania.
    Argued April 14, 1993.
    Decided Aug. 12, 1993.

      Leonard R. Reeves, Latrobe, for appellant.
    Paul F. Laughlin, Pittsburgh, for appellees.
    Before WIEAND, POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

This is an appeal from the order entered by the Court of Common Pleas of Westmoreland County on April 14, 1992. The question presented on appeal is whether two individuals involved in an automobile accident with an uninsured motorist can “stack” uninsured motorist benefits under one insurance policy covering three vehicles, given that 1) the individuals were class one insureds and 2) the policy covers two personal vehicles and one commercial vehicle. We hold that they can stack uninsured motorist coverage and, accordingly, affirm the order of the trial court.

The facts are undisputed. On July 22, 1989, appellees’ motorcycle was struck by an automobile operated by an uninsured motorist. Appellees sustained severe injuries as a result of the accident. At the time of the accident, appellees resided with appellee-husband’s father, Charles Werkman (hereinafter “father”). Father was the insurance policy holder of an automobile insurance policy called Pioneer Commercial Auto Policy written by the Erie Insurance Exchange. The policy provided coverage for two personal vehicles and one commercial vehicle. The commercial vehicle was a dump truck that was used by father for the maintenance of his home and trailer park. Vehicles such as father’s dump truck are designated by Erie Insurance as commercial vehicles when the vehicles are over a certain weight or are used in business applications. Father used the dump truck for both business and personal purposes. However, the dump truck, because of its weight, was designated as a commercial vehicle. The two personal automobiles were also covered under the commercial policy. Father paid three separate premiums for uninsured motorist coverage provided by a single policy covering three vehicles.

Appellees claimed uninsured motorist coverage related to all three vehicles insured on the Pioneer Commercial Auto Policy under principles of stacking. Erie Insurance conceded the applicability of stacking of the personal vehicles, but denied that the commercial vehicle could be considered for purposes of stacking.

Appellees brought a declaratory judgment action, seeking a ruling for the allowance of stacking of coverage for the commercial vehicle. The trial court ruled that according to Pennsylvania case law, appellees were not permitted to stack uninsured motorist coverage of a commercial vehicle covered under a combined personal/commercial automobile policy. Appellees filed a post-trial motion, wherein appellees sought reconsideration of the decision of the trial court. The trial court determined that it made an error in its original ruling in favor of appellant. The court stated that the error had been made because the court “analyzed the situation from the point of view of characterizing the policy, rather than reading the policy and determining its contractual import.” Trial Court Opinion, April 14, 1992, p. 1.

Before reviewing the language of the insurance contract, we address appellant’s contention that Pennsylvania law prohibits the stacking of uninsured motorist coverage of a commercial vehicle.

This court stated in Boyle v. State Farm Mut. Auto Ins. Co., 310 Pa.Super. 10, 21, 456 A.2d 156, 162 (1983), that the “purpose of the uninsured motorist law has been frequently and consistently interpreted by our courts as providing protection to innocent victims of uninsured drivers,” and that Pennsylvania statutes were “designed to give monetary protection to that ever changing and tragically large group of persons who while lawfully using the highways themselves suffer grave injuries through the negligent use of those highways by others.” Harleysville Mutual Casualty Co. v. Blumling, 429 Pa. 389, 395, 241 A.2d 112, 115 (1968). In cases in which the loss exceeds the limits of the uninsured/underinsured motorist benefits under one policy, the insured may recover from or stack other available policies up to their individual limits or to the amount of the actual loss. Id. Stacking allows the insured to get the full benefit of premiums he or she paid. Jeffrey v. Erie Ins. Exchange, 423 Pa.Super. 483, 621 A.2d 635, 645 (1993).

The Pennsylvania Supreme Court addressed the subject of uninsured motorist coverage involving commercial fleet policies in Utica Mutual Ins. Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984). In that case, the executrix of decedent’s estate filed an action claiming entitlement to uninsured motorist benefits under a commercial fleet policy and a personal automobile insurance policy. In Utica, our Supreme Court divided insureds into three classes:

(a) The named insured and any designated insured and, while residents of the same household, the spouse and relatives of either,
(b) any other person while occupying an insured highway vehicle; and
(c) any person with respect to damages he is entitled to recover because of bodily injury to which this insurance applies sustained by an insured under (a) or (b) above.

Id. at 338, 473 A.2d at 1012. Our Supreme Court ruled, in Utica, that the decedent was a “class two” insured because he was merely a passenger of the vehicle insured under the commercial fleet policy. In ruling that the estate was not allowed to stack the coverage under the fleet policy, the court reasoned that since the decedent had asserted nothing more than “class two” coverage, his entitlement arose from his temporary status as an occupant, rather than from his being a specifically intended beneficiary of the insurance policy. In its decision, the Pennsylvania Supreme Court specifically left for another day the “question of whether a ‘class one’ insured may stack coverages under a fleet policy.” Id. 473 A.2d at 1010-1011, n. 4.

This court was faced with that issue in Miller v. Royal Ins. Co., 354 Pa.Super. 20, 510 A.2d 1257 (1986), aff'd per curiam, 517 Pa. 306, 535 A.2d 1049 (1988), wherein the court ruled that although the injured party was a class one insured, the classification was irrelevant in light of its determination that coverage under a fleet policy may not be stacked. The reasoning of the court in Miller, was followed in Thompson v. Royal Ins., 361 Pa.Super. 78, 521 A.2d 936 (1988), appeal denied, 520 Pa. 590, 551 A.2d 216 (1988), and this court refused to allow stacking under a commercial fleet policy.

Finally, in a case similar to the present case, this court ruled that stacking of commercial vehicles under a commercial fleet policy was not permitted but concluded that stacking would be, permitted for the five private passenger autos covered by the same business auto policy. Lastooka v. Aetna Ins. Co., 380 Pa.Super. 408, 552 A.2d 254, allocatur granted, 522 Pa. 613, 563 A.2d 498 (1989). The fleet policy involved in Lastooka, covered a total of 28 vehicles, five of which were personal vehicles.

Appellant contends that Lastooka controls the outcome of the present case. Asserting that there is no difference between a fleet policy and a commercial policy, appellant argues that stacking of the insured’s commercial vehicle should be prohibited while stacking of personal vehicles would be permitted. We disagree.

The reasoning behind disallowing stacking of fleet policies is that such policies potentially cover a multitude of vehicles. Miller 510 A.2d at 1259. “[T]o allow stacking would be to make premium costs prohibitively expensive and would not be within reasonable expectations of the insurer and the employer-policyholder____” Miller v. Royal Insurance Company, 510 A.2d at 1259, quoting Yeager v. Auto-Owners Insurance Co., 335 N.W.2d 733, 739 (Minn.1983).

In Yeager, the Minnesota Supreme Court in a decision to allow stacking of uninsured motorist coverage of three commercial vehicles ruled that a policy covering three commercial vehicles should not be treated as a fleet policy:

We, decline, however to address a question that is not before us. We do not have here a large, commercial fleet policy. Assuming arguendo there is validity to the arguments about prohibitive costs and reasonable expectations, these arguments have no force here.

Id., 335 N.W.2d at 739.

As in Yeager, we are not faced here with a large, commercial fleet policy. The policy issued to father provided coverage for two personal vehicles and one commercial vehicle. A fleet policy is issued by appellant only when the policy holder is insuring five or more commercial vehicles. Appellant insured father’s only commercial vehicle.

“It is a matter of common knowledge that many individuals have from three to seven vehicles, or more, on one policy for family use. The policy is not considered to be a fleet policy.” Yeager, 335 N.W.2d at 739. In Lastooka, supra, stacking of coverage for five personal vehicles was permitted. Presently, appellees sought to stack coverage for only one commercial vehicle.

In the context of coverage of personal use vehicles, the number of class one insureds and the number of vehicles covered are finite and readily discernible. Lastooka, 552 A.2d at 257. The right to stack coverage of personal use vehicles is well settled, and it should be foreseen that such coverage will apply to those vehicles. Rosato v. Harleysville Mut. Ins., 328 Pa.Super. 278, 476 A.2d 1328 (1984), Utica Mutual Ins. Co. v. Contrisciane, supra. Therefore, stacking coverage for personal use vehicles would not be beyond the reasonable expectations of the insurer.

Appellant should have been aware that this would not be a fleet policy and that stacking was within the reasonable expectations of both parties. According to Lastooka, supra, the nature of the policy and that which it insures will control the stacking issue. This court stated in Miller, supra, that the insured is free to contract for protection against uninsured motorists with its insurer. We must, therefore, look at the insurance policy to determine the uninsured motorist coverage for which the insured and the insurer contracted.

Where the language of an insurance contract is clear and unambiguous, a court is required to give effect to that language. Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 469 A.2d 563 (1983). A court may not “rewrite” an insurance contract, or construe clear and unambiguous language to mean other than what it says. Guardian Life Insurance Co. v. Zerance, 505 Pa. 345, 479 A.2d 949 (1984).

The declaration page of the policy provides that each vehicle was covered with uninsured and underinsured motorists coverage, indicated as “unin/undr MOT BI LIM # 300M/ ACC”, and the letter M equals a thousand dollars. Additionally, the declaration page refers to policy endorsements and exceptions to declaration items by form designation that would be applicable. Form ABPU02 06/87, regarding uninsured/underinsured coverage states the following:

UNINSURED/UNDERINSURED MOTORISTS COVERAGE '
OUR PROMISE — UNINSURED MOTORISTS COVERAGE
We will pay damages that the law entitles you or your legal representative to recover from the driver or owner of an uninsured motor vehicle. Damages must result from an accident arising out of the maintenance or use of the uninsured motor vehicle. Damages must involve bodily injury, meaning physical harm, sickness, disease or resultant death. We will not be bound by a judgment against the uninsured on the issues of liability or the amount of damages unless it is obtained with our written consent. OTHERS WE PROTECT (1) Any relative.
Any relative “means, if a resident of your household, a) Your relative or ward ...”

According to the uninsured/underinsured motorists form referenced in the declaration page of the insurance contract, uninsured motorist coverage extended to the insured’s dump truck. The policy does not exclude uninsured motorist coverage of a commercial vehicle.

In its opinion, the trial court correctly stated the following in regard to the insurance contract:

The coverage provided for in the contract of insurance clearly indicated uninsured coverage for the vehicle in question, and the coverage as set forth in the endorsement provided that the relatives of Charles R. Werkman, here Dennis K. Werkman and Jacqueline Werkman, were covered regarding uninsured coverage.
[T]he three vehicles indicated on the auto declaration page of the policy of insurance in question here each allow for the limits of the uninsured motorists coverage, and therefore, Dennis K. Werkman and Jacqueline Werkman are entitled to the benefits therefrom, as protected or covered persons under the policy.

Trial Court Opinion, April 14, 1992, pp. 5-6.

Appellant was free to include in the insurance contract an express prohibition of stacking of uninsured motorist coverage for commercial vehicles. However, appellant failed to include such language in the insurance policy. In fact, the policy permits first class insureds to stack uninsured motorist coverage of all vehicles covered by the policy. Appellant wrote the insurance contract extended to the insureds and is bound to accept the terms of that contract. Burne v. Franklin Life Insurance Co., 451 Pa. 218, 301 A.2d 799 (1973). We may not “rewrite” the clear language of the insurance contract, and, accordingly, we affirm the order of the trial court.

Order affirmed.

      . Since the insurance contract at issue was not included in the official record, we are not required to address the issue of whether the trial court properly interpreted the language of the insurance contract. However, we note that both parties agree that the pertinent language of the contract was correctly quoted by the trial court. We will, therefore, review the excerpts of the insurance policy included in the trial court's opinion. Cf. McCormick v. Allegheny General Hospital, 364 Pa.Super. 210, 527 A.2d 1028 (1987).


author: OLSZEWSKI, Judge.

text:
    629 A.2d 1387
    In the Interest of D.W. Appeal of D.W.
    Superior Court of Pennsylvania.
    Submitted June 7, 1993.
    Filed Aug. 3, 1993.

      John W. Packel, Asst. Public Defender, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before OLSZEWSKI, KELLY and JOHNSON, JJ.
   OLSZEWSKI, Judge.

Appellant D.W. appeals from the order adjudicating him delinquent on September 23,1992. The Honorable Joseph P. McCabe, Jr. entered the order after finding D.W. guilty of possession of cocaine with intent to distribute and criminal conspiracy and placed him in the Dixon House Pride and Youth Program for juvenile offenders. Post-verdict motions were filed and denied. The sole issue presented for our review is whether the Honorable Sheldon C. Jelin erred in denying D.W.’s pre-trial motion to suppress physical evidence. We affirm.

On appeal from a motion to suppress, we only review whether the record supports the trial court’s factual findings and whether the trial court’s legal conclusions drawn from the facts are in error. Commonwealth v. Medley, 531 Pa. 279, 612 A.2d 430 (1992); Commonwealth v. Merkt, 411 Pa.Super. 127, 600 A.2d 1297 (1992). Our review of the record reveals that on April 20, 1992, at approximately 2:40 a.m., Officer Bernard Ramsey and his partner, Officer Aaron Green, received a radio call to investigate a black male in a green jacket selling narcotics at 1003 Brown Place in Philadelphia. N.T. 8/27/92 at 4. When they arrived at the scene, the officers observed five black males standing on the step in front of 1003 Brown Place. One of the men handed an object to D.W. and received something in return from a third man [“L.C.”]. N.T. 8/27/92 at 6. As the police officers approached the group, three of the men fled. D.W. and L.C. remained and were ordered to stand against the wall. N.T. 8/27/92, at 6. Officer Green then asked L.C. what was in his pocket and L.C. said it was candy. N.T. 8/27/92, at 28. Officer Green searched L.C. and retrieved a plastic baggie containing vials of a white chalky substance, later determined to be cocaine. N.T. 8/27/92 at 6. L.C. attempted to flee and Officer Green pursued him. At that point, Officer Ramsey instructed D.W. to get on the ground but D.W. refused and a struggle ensued. After restraining him, Officer Ramsey conducted a search and discovered $235.00 in U.S. currency in D.W.’s left front pocket.

On appeal, D.W. argues that the trial court erred in denying his pre-trial motion to suppress the money seized from his person, claiming that the officers did not have probable cause to search him or reasonable suspicion to detain him for investigatory purposes. We disagree.

Probable cause exists where an officer is presented with facts and circumstances which are sufficient to warrant a prudent individual in believing that an offense was committed and that defendant committed it. Commonwealth v. Dennis, 417 Pa.Super. 425, 612 A.2d 1014 (1992). In determining whether probable cause existed in a particular situation, “a court will not look just at one or two individual factors, but will consider the ‘totality of the circumstances’ as they appeared to the arresting officer.” Id. We also focus on the circumstances as seen through the eyes of a trained officer, taking into consideration that probable cause does not involve certainties, but rather “the factual and practical considerations of everyday life on which reasonable and prudent men act.” Id. (quoting Commonwealth v. Simmons, 295 Pa.Super. 72, 440 A.2d 1228 (1982)); see also Interest of J.H., 424 Pa.Super. 224, 622 A.2d 351 (1993). Finally, our Courts have repeatedly emphasized that determinations of probable cause must be based on a common-sense non-technical analysis. Id.

Guided by this standard, our review of the record substantiates the trial court’s conclusion that the police officers had probable cause to arrest D.W. After receiving the radio report and observing the suspicious exchange at the address indicated in the report, the officers had reasonable suspicion, based upon specific and articulable facts, to detain the suspects for further investigation. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors — quantity and quality — are considered in the “totality of the circumstances — the whole picture”, United States v. Cortez [449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) ].... Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable. The [Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ] Court applied its totality of the circumstances approach in this manner, taking into account the facts known to the officer from personal observation, and giving the anonymous tip the weight it deserved in light of its indicia of reliability as established through independent police work. The same approach applies in the reasonable suspicion context, the only difference being the level of suspicion that must be established.

Interest of Barry W., 423 Pa.Super. 549, 561-62, 621 A.2d 669, 676 (1993) (quoting Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990)) (emphasis omitted).

Clearly, the anonymous radio tip alone could not have constituted sufficient information to justify a Terry stop. Barry W., at 562, 621 A.2d at 675 (radio bulletin instructing officers to “investigate male selling drugs” insufficient to establish reasonable suspicion absent description of suspect or corroborating observations by officer); Commonwealth v. Anderson, 481 Pa. 292, 392 A.2d 1298 (1978); compare, Interest of S.J., 425 Pa.Super. 270, 624 A.2d 1068 (1993) (radio bulletin reporting that a black female, wearing red jacket, blue jeans, red sneakers and hair curlers, was selling drugs justified investigatory stop, but not frisk, of suspect matching description at the specified location). Although the radio tip described the suspect as wearing a green jacket, there is no indication that any of the suspects matched this description. Likewise; police observation of a suspicious exchange between two citizens or their location in a high crime area would fail to justify the stop in the absence of a corroborating information. Commonwealth v. Greber, 478 Pa. 63, 385 A.2d 1313 (1978) (absent prior information that a drug deal would occur, police had no basis to detain appellee after observing single exchange of package in high crime area on hunch that exchange of drugs had taken place); Commonwealth v. Agnew, 411 Pa.Super. 63, 600 A.2d 1265 (1991); Commonwealth v. Espada, 364 Pa.Super. 604, 528 A.2d 968 (1987) (mere presence in high crime area provides no basis for Terry stop).

These facts, viewed in the aggregate, however, were sufficient to create a reasonable belief that criminal activity was afoot. Commonwealth v. Dennis, 417 Pa.Super. 425, 612 A.2d 1014 (1992) (neighbors’ complaints coupled with police observation of money transfer for small item); Commonwealth v. Price, 318 Pa.Super. 240, 464 A.2d 1320 (1983) (anonymous tip regarding drug dealing corroborated by police observation at specified location); Commonwealth v. Jones, 506 Pa. 262, 484 A.2d 1383 (1984) (informant’s tip corroborated by police observation of possible drug activity); Commonwealth v. Patterson, 405 Pa.Super. 17, 591 A.2d 1075 (1991) (neighbors’ reports of drug activity coupled with police observation of heavy foot traffic in alley behind alleged “crack house” during early morning hours justified Terry stop).

Moreover, the fact that the suspicious conduct occurred in the early morning hours and in a high crime area provides additional support for our conclusion. See Commonwealth v. Jackson, 359 Pa.Super. 433, 439, 519 A.2d 427, 431 (1986) (“the time and place of an encounter may indicate that a person, conspicuous through their solitary presence at a late hour or desolate location, may be the object of a search”); Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985), cert. denied, 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (sufficient cause to stop arising out of defendant’s location in an alley in early hours of a snowy morning when streets were empty). Consequently, while the radio tip may not have provided a sufficient description of the suspect to warrant further investigation, Officer Ramsey’s testimony that he saw D.W. receive money from another man in exchange for a “packet” at the location described provided ample basis for a Terry stop. N.T. 9/23/92, at 7-8.

During the lawful investigative detention, the officers discovered additional information which confirmed their suspicion that D.W. and the other men were exchanging drugs. First, three of the men fled when the officers approached the group. See Commonwealth v. Phillips, 338 Pa.Super. 274, 487 A.2d 962 (1985) (flight of companions upon approach of suspect by officer supported probable cause finding). Second, Officer Green searched L.C. and retrieved a plastic baggie containing vials of cocaine. The discovery of contraband possessed by L.C. confirmed the officers’ suspicions and established probable cause to arrest D.W. See, Commonwealth v. Brown, 417 Pa.Super. 165, 169, 611 A.2d 1318, 1320 (1992) (“investigative detention may ripen into an arrest based on probable cause when additional information confirming earlier suspicion is uncovered”). The subsequent search of D.W. and discovery of $235.00 in small bills was therefore valid as a search incident to a lawful arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Commonwealth v. Frank, 407 Pa.Super. 500, 595 A.2d 1258 (1991).

We further find that D.W.’s reliance on our recent decision in Interest of Barry W., supra, is misplaced. In Barry W., police officers responded to a radio bulletin to “investigate male selling drugs.” The alleged suspect did not fit a particular description and the anonymous tip was unsupported by other indicia of reliability. At the location designated by the tip, the officer observed two males standing on the street comer, approached them and said “stop police.” Id. at 562, 621 A.2d at 671. The suspects fled and, as the officer chased them, one of the suspects threw an object to the other. We recognized that the suspects’ flight coupled with an anonymous tip, bearing no indicia of reliability and containing no predictions of future behavior, did not justify a forcible Terry stop in the absence of corroborative observations by the police officer. Id. at 567-68, 621 A.2d at 678. Conversely, in this case, the officers observed the suspicious exchange of cash for a small packet, in addition to the anonymous tip and the flight of D.W.’s companions. We therefore conclude, after careful study of the facts in the instant case and a review of the decided cases, that the officers had reasonable suspicion to detain D.W. which developed into probable cause. Accordingly, we affirm.

Order affirmed.

JOHNSON, J., concurs in the result.

      . D.W. mislabels his appeal as taken from the order entered December 1, 1992, denying his post-verdict motions. His appeal is actually from the adjudication of delinquency and commitment. 42 Pa.C.S.A. § 742.

      . We note that Officer Ramsey did not identify the objects exchanged between D.W. and the other man as money and a packet at the suppression hearing. See N.T. 8/27/92, at 6. Nevertheless, we may consider the evidence presented both at the suppression hearing and at trial when reviewing the trial court’s ruling on a motion to suppress. See Commonwealth v. Chacko, 500 Pa. 571, 459 A.2d 311 (1983).

      . We need not determine whether Officer Green’s conduct toward L.C. was proper under the scope of a Terry search since D.W. has no expectation of privacy in the person of another and, therefore, has no standing to challenge the officer’s conduct relating to the discovery of the drugs. See e.g., Commonwealth v. Yacoubian, 339 Pa.Super. 413, 489 A.2d 228 (1985) (Commonwealth was not required, in order to establish probable cause for believing illegal contraband had originated in appellant’s dry cleaning establishment, to prove validity of police stop of vehicle driven by individual who recently purchased illegal contraband at appellant’s establishment); and Commonwealth v. Oglialoro, 525 Pa. 250, 579 A.2d 1288 (1990) (expectation of privacy is present when the individual, by his conduct, exhibits an actual, subjective expectation of privacy and that the subjective expectation is one that society is prepared to recognize as reasonable).