author: Head, J.,

text:
    Rochester Improvement Company v. Foerstige, Appellant.

      Landlord and tenant — Bent—Affidavit of defense — Principal and surety — Payments.
    Ia an action against sureties of a tenant for rent, an affidavit of defense- is insufficient which, contains only a naked averment that the lessee had paid “a large amount of the rent due under said lease,” and that the plaintiff had applied the sum so paid without the consent either of the lessee or of the defendants to the discharge of unpaid rent owing by the lessee on a former lease between the same parties.
    Argued May 9, 1910.
    Appeal, No. 95, April T., 1910, by defendants,' from order of C. P. Beaver Co., Dec. T., 1908, No. 243, maldng absolute rule for judgment for want of a sufficient affidavit of defense in case of Rochester Improvement Company v. H. C. Foerstige et al.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit against sureties to recover rent alleged to be due on a lease. Before Holt, P. J.
    Rule for judgment for want of a sufficient affidavit of defense.

      July 20, 1910:
    The facts are stated in the opinion of the Superior Court.

      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

      Lawrence M. Sebring, for appellants.

      W. A. McConnel, for appellee.
   Opinion by

Head, J.,

The first question presented by this record is the correctness of the action of the learned court below in making absolute a rule for judgment for want of a sufficient affidavit of defense. The plaintiff brought an action of assumpsit to recover certain rent due and in arrears under a written lease which was made a part of the statement of claim. The three defendants, the appellants, had become sureties for the performance of the covenants of the lease by the lessee. Their obligation was also evidenced by a writing on the lease itself. On the filing of their affidavit of defense a rule for judgment was entered.

We agree with the learned court below that this affidavit presented no legal defense whatever. Had every averment of fact in it been proven to the extent averred, and nothing more had been offered by way of defense, the learned trial judge would have been obliged to have directed a verdict for the plaintiff. The only averment in the affidavit that is even remotely responsive to the legal demand set forth in the statement is that contained in paragraph four. This is but a naked averment that the lessee had paid “a large amount of the rent due under said lease,” and that the plaintiff had applied the sums so paid without the consent either of the lessee or of the defendants to the discharge of unpaid rent owing by the lessee on a former lease between the same parties. Whether or not the defendants were also sureties on that lease the affidavit does not state. If the affiant had any actual knowledge of such payments, a much more specific averment of the amounts paid and the times when paid was demanded. If he had no knowledge and made the averments simply upon information and belief, it was just as manifestly his duty to state the sources of his information. These requirements are elemental and no authorities need be cited to support them. The opinion filed by the learned judge below fully vindicates his action in making the rule for judgment absolute, and we do not deem it necessary to point out in detail the insufficiency of the several matters alleged in the affidavit. The judgment was therefore rightfully entered.

On the day following its entry, the court, of his own motion, entered a further order to the effect that if within ten days thereafter the defendants should file a supplemental affidavit specifying more particularly the amounts paid by the lessee on account of the rent, or setting forth sufficient reasons why they could not be ascertained, the judgment would be opened and the defendants let into a defense. The defendants undertook to avail themselves of the benefits of this order and filed what they designate a supplemental affidavit of defense. It is clear enough that the time for filing affidavits of defense had gone by, and what was really invited by the learned court below was a petition to open the judgment which would disclose such facts as would have been sufficient, if averred in proper time in an affidavit of defense, to have prevented judgment. But, regarding it as a petition for the opening of the judgment, it discloses no new averments of any importance save the one contained in its third paragraph with relation to a piano of the lessee which, it was averred, was worth $300, which had been seized by the plaintiff on account of the rent in arrears, and for which no credit had been given.

If, as we have said, we regard this affidavit as a petition for the opening of the judgment which had been properly entered as the record stood at the time, then manifestly the plaintiff was entitled to file an answer thereto. This was accordingly done. Had the learned trial judge, upon a consideration of the petition and answer, declined to interfere with the judgment, it would have been no easy task to have convicted him of an abuse of the sound discretion vested in him in such cases. But, after a reargument of the whole question after the filing of said answer, the learned court opened the judgment to the extent of $300, leaving to the plaintiff the right to proceed in the ordinary way to collect the remainder thereof. It is from this order, as we understand it, that the appeal was formally taken, although the earlier action of the court in entering the judgment originally is also assigned for error.

Being of the opinion, as we have already indicated, that the judgment was rightfully entered in the first instance, and no good ground having been shown why it should be opened to any greater extent than it actually was, we think the defendants have no just ground of complaint, and the assignments of error are overruled.

Judgment affirmed.


source: Caselaw Access Project

author: Rice, P. J.,

license: Public Domain

text:
    Mitchell v. Schreiner, Appellant.

      Principal and agent — Sale of property — Commissions—Serving two masters.

    The rule of public policy which forbids an agent for the sale of property to become entitled to compensation from both vendor and vendee, may be waived by an express agreement between the parties, but such waiver cannot be inferred either from knowledge by one of the parties of the fact that the rule had been violated or from mere silence or failure to dissent at the time, or from all these combined. Nothing short of clear and satisfactory proof of agreement to waive the rule can be required as sufficient for the purpose. The mere fact that the agent told one of the parties that he was acting for both will not fix a waiver of the rule on the party thus informed in the absence of any agreement on his part to a waiver.
    Argued May 4, 1910.
    Appeal, No. 189, April T., 1910, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1907, No. 322, on verdict for plaintiff in case of Charles G. Mitchell v. John C. Schreiner.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Assumpsit-to recover commissions for-sale of real estate. Before Frazer, P. J.
    The court charged as follows:
    [The defense set up is twofold: first, that Mr. Mitchell was representing both Mr. Schreiner and Mr. Cullen, and if that is the case, Mr. Mitchell cannot recover, for where a broker represents two parties without disclosing the fact to his principals,' he cannot recover commissions from either party.] [3] A broker, as we said to you a moment ago, owes the utmost fidelity to his principal, and the law prohibits him from serving two principals, or serving both the buyer and the seller, for the.reason that he may not give one of his principals the consideration the principal is entitled to, if it is to his advantage to give the other principal better consideration; in other words, his compensation might be greater from one principal than the other principal, and that greater compensation would influence his judgment, and the principal paying the smaller commission would receive less consideration at the hands of the broker; and for that reason, the law says he cannot recover. In referring to the employment of a broker by two persons, our Supreme Court have quoted from the Bible in saying that no man can serve two masters.
    [Mr. Mitchell says that on the afternoon they visited the Jackson street property he told Mr. Schreiner he represented Mr. Cullen and would receive a commission from Mr. Cullen in making the transfer. If that is true, Mr. Schreiner had knowledge that Mr. Mitchell was acting for both parties, and the fact that he was acting for both parties would not, under those circumstances, prevent him from receiving a commission from Mr. Schreiner. Mr. Schreiner, however, denies that. He says no such information was given him and he did not know who the owner of the lots he was purchasing was until Mr. Mitchell came to his house with the agreement and he saw Mr. Cullen’s name in the agreement. And he says then nothing was said to him about Mr. Mitchell acting as the agent for Mr. Cullen, and Mr. Schreiner presumed he was acting as his agent merely. That will be the first question for you, gentlemen, to determine, and in determining that, you will have to consider the evidence of both parties as to whether or not Mr. Mitchell informed Mr. Schreiner he was acting for Mr. Cullen as well as himself. If he did not inform him of that fact, he cannot recover, and the verdict must be for defendant. If he did inform him, he can recover unless — and that brings us to the other defense], [4] which is that at the time Mr. Mitchell visited the house of Mr. Schreiner, and at that time Mr. Schreiner signed the agreement it was with the understanding it was not to be binding upon him until Mrs. Schreiner had seen the property and was satisfied with it, and if she was not satisfied with the property, the agreement was not to be binding and was to be of no effect.
    People have a right to make any kind of a contract or agreement they see fit, and if, when Mr. Mitchell went to the house of Mr. Schreiner and the agreement was discussed — and it appears they were there pretty late, probably from eleven or half-past eleven until two or half-past two in the morning — it was signed by Mr. Schreiner with the understanding, as he says, that Mr. Mitchell was to hold it until Mrs. Schreiner could see the property and determine whether she was satisfied with it, and if she was not satisfied, it was to be of no effect, Mr. Mitchell cannot recover in this case, because there was no sale of the property, as Mr. Schreiner notified him shortly afterwards that Mrs. Schreiner was not satisfied with the property.
    Mrs. Schreiner says she was present that evening when Mr. Mitchell was at their house and heard the conversation, and took part in it, and Mr. Mitchell,' before Mr. Schreiner came in, had told her about the location of the Jackson street property; that it was in a good locality, upon a street that was laid out, although not paved in front of these lots — graded and curbed — and within easy walking distance of the street cars. She says when she went to the east end to look at the lot, she found it quite a little distance from the street cars, and the grade of the street was too steep for her; that she could not walk up that grade from the street cars, and for that reason she declined to sign the deed or agree to the purchase of the property by her husband. Mr. Mitchell denies that. He admits telling her where the property was and telling her its location, but denies there was any understanding to the effect that the contract was not to become binding unless approved by Mrs. Schreiner.
    Those are the two questions in this case. The employment of Mr. Mitchell is admitted, and it is also admitted he was to receive two per cent in the event of a sale or trade of the property being made; and it is admitted that he secured Mr. Cullen as a purchaser of the property. As we said a moment ago, if that were all there was in the case, he would be entitled to recover. [Then you come to the defense, and if either of the defenses is established, Mr. Mitchell cannot recover; that is, if you are satisfied from the evidence that Mr. Mitchell was acting for both, and he admits he was, and did not give Mr. Schreiner notice of that fact, he cannot recover; or if he did give him notice of that fact and the sale was made subject to the approval of Mrs. Schreiner, and Mrs. Schreiner in good faith failed • to approve the sale, he cannot recover.] [5]
    Verdict and judgment for plaintiff for $197.01. Defendant appealed.

      Errors assigned were (3-5) above instructions, quoting them.

      July 20, 1910:

      Edward Schreiner, for appellant,
    cited: Rice v. Davis, 136 Pa. 439; Evans v. Rockett, 32 Pa. Superior Ct. 365; Linderman v. McKenna, 20 Pa. Superior Ct. 409; Farnsworth v. Hemmer, 83 Mass. 494.

      George H. Rankin, for appellee,
    cited: Hippie v. Laird, 189 Pa. 472; Burchfield v. Griffith, 10 Pa. Superior Ct. 618.
   Opinion bx

Rice, P. J.,

It is a rule of public policy, subject to such exception as we are about to notice, that an agent for the sale of property cannot at the same time act as agent for the purchaser thereof and become entitled to compensation from both vendor and purchaser or from either: Everhart v. Searle, 71 Pa. 256. Whilst this rule may be waived by an express agreement between the parties, yet it is well settled that such agreement cannot be inferred either from knowledge of the fact that the rule has been violated or from mere silence or failure to dissent at the time, or from all these combined. Nothing short of “clear and satisfactory proof of an agreement” to waive the rule can be regarded as sufficient for this purpose: Rice v. Davis, 136 Pa. 439; Penna. R. R. Co. v. Flanigan, 112 Pa. 558; Finch v. Conrade’s Executor, 154 Pa. 326; Marshall v. Reed, 32 Pa. Superior Ct. 60; Evans v. Rockett, 32 Pa. Superior Ct. 365. Viewing the answers to the plaintiff’s points, quoted in the first and second assignments of error, in the light of these principles, we are constrained to the conclusion that the instructions did’ not go far enough to put clearly before the jury the rule applicable to the case, if they believed the defendant’s testimony. Standing by themselves they were calculated to create the impression that if the plaintiff disclosed to the defendant the fact that he was acting for both parties the rule under consideration would not prevent recovery. The same idea was conveyed more clearly by instructions quoted from the general charge in the fourth assignment. Referring to the testimony of the plaintiff to the effect that he told the defendant that he would receive a commission from Cullen, the other party to the proposed exchange, the learned judge said: “If that is true, Mr. Schreiner had knowledge that Mr. Mitchell was acting for both parties, and the fact that he was acting for' both parties would not, under these circumstances, prevent him from recovering a commission from Mr. Schreiner.” Then after referring to the defendant’s testimony in denial of what the plaintiff had testified to, the learned. judge instructed the jury that the first question for them to determine was whether the plaintiff informed the defendant that he was acting for Cullen as well as himself, and that if the plaintiff did not inform the defendant of that fact he could not recover, but if he did inform him he could recover, unless the other defense, not necessary to be noticed here, was made out. It is thus seen that the plaintiff’s right to recover was made to depend only on the question as to what he informed the defendant, and not upon the question whether the defendant expressly agreed to the double employment and the double compensation. It is apparent that this assignment cannot be overruled without establishing a precedent that would be in irreconcilable conflict with the rule laid down in Rice v. Davis and the cases that follow in its lead. Nor was the error,cured, by the affirmation of the defendant’s first point. The jury would endeavor to obey all the instructions of the court, and in doing so might naturally suppose that they might infer the defendant’s assent from the mere fact of his silence and failure to dissent when, as alleged,, the plaintiff informed him that he was employed by the other party. In concluding the opinion in Rice v. Davis, the court said: “Rules of law, such as that under consideration, intended to be preventive of the possibility of wrong, rather than remedial of actual wrong, should be rigidly enforced, unless it clearly appears that the. parties, for whose protection they were intended, have, with full knowledge of all the circumstances, agreed to waive their rights thereunder.” The jury might have inferred, from the instructions contained in the general charge and the answers to the plaintiff’s first two points that the rule is less rigid than it is declared to be in the cases cited, and as it is impossible to determine with certainty whether they followed those instructions, or the instructions intended to be conveyed by the affirmation of the defendant’s point, the case must go back for retrial.

The judgment is reversed and a venire facias de novo awarded.


author: Henderson, J.,

text:
    Maxton’s Estate.

      Will — Trusts and trustees — Legacy—Construction of will.

    Where a testatrix gives a portion of her estate to a trustee to use the income thereof for the support of a middle aged invalid daughter, with remainder of the principal to the testatrix’s husband, and the husband by his will gives a money legacy to a woman on condition that the legatee should remain with and take care of the invalid daughter,.and the trustee offers to provide board and lodging for the legatee in the same house with the daughter, but refuses to pay her for her services in attending the daughter, the legatee cannot compel him to pay her for such services out of the income of the trust estate.
    Argued April 20, 1910.
    Appeal, No. 107, April T., 1910, by Joseph. E. Barnett, Executor and Trustee, from decree of O. C. Westmoreland Co., May T., 1909, No. 160, dismissing petition to pay over money in Estate of Martin V. Maxton, deceased.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Petition to pay over money.
    Steel, P. J., stated the facts to be as follows:
    The matter now before the court arises out of the will of Martin Y. Maxton, late of Latrobe borough, deceased, wherein he bequeathed, inter alia, as follows:

      3. “I give and bequeath, to Annie Bray the sum of Five Thousand ($5,000) Dollars, to be paid to her by my executor as soon as convenient after my decease.
    “I also give and bequeath to the said Annie Bray the additional sum of Five Thousand ($5,000) Dollars, to be paid to her upon the death of my step-daughter, Nellie Parker, out of the funds set aside by my deceased wife in trust in the hands of Joseph E. Barnett for the use of Nellie Parker, provided the said Annie Bray shall remain with and take care of my said step-daughter until the death of my step-daughter.
    “I direct, however, that if the said Annie Bray shall leave or cease to take care of the said Nellie Parker, my step-daughter, or shall die prior to the said Nellie Parker then the Five Thousand ($5,000) Dollars last above bequeathed shall be paid into and become a part of my residuary estate.”
    It appears that Mary Maxton, mother of Nellie Parker by a former husband, had died March 26, 1901, after having first made her last will and testament dated April 3, 1894. By this will she gave to her husband, Martin V. Maxton, the one-half of her estate, which estate at the time of her death, amounted to about $80,000, and the other half she gave to her daughter, Nellie Parker, during her life, and appointed Joseph E. Barnett trustee, and provided that said trustee should take charge of the amounts bequeathed to Nellie Parker and pay thereout an ample sum for her comfortable maintenance and support during her entire lifetime, and at her death whatever remained she bequeathed to her husband, Martin V. Maxton, his heirs and assigns.
    Martin V. Maxton died March 9, 1904, having first made his last will and testament containing, inter aha, the bequests above stated tó Annie Bray. The balance of his estate he gave to his two sisters.
    Nellie Parker is a woman of middle age, a helpless and incurable invalid mentally and physically.
    During part of Mrs. Maxton’s lifetime and during the period from her death to the death of Martin V. Maxton, Annie Bray, the petitioner in this case, had been a servant employed about the house and assisted in the care of Nellie Parker. For these services she was paid a regular wage.
    Since the death of Martin V. Maxton, Annie Bray has remained in her capacity of housekeeper and attendant of Nellie Parker, and has been paid a salary by the trustee until the early part of this year, at which time the trustee, contending that she had been improperly performing her duties and wasting the estate, dismissed her and later during May of this year gave her notice that hereafter she was to avail herself of said conditional bequests: He would furnish her room and board with the understanding that nothing would be paid her for her services other than the said bequest provided in the said will.
    The court entered the following decree:
    And now, July 20, 1909, it is ordered and decreed that Joseph E. Barnett, trustee, do furnish to Annie Bray suitable boarding and room-and a reasonable wage to be hereafter determined as the proper performance of her duties in the care and attention of Nellie Parker shall require, and that Joseph E. Barnett, trustee, do pay the costs of this proceeding.

      Error assigned was the decree of the court.

      Paul H. Gaither, with him Charles E. Whitten, for appellant.
    Courts may not make a will or supply parts thereof supposed to have been omitted. Even if it be apparent that the testator had made mistakes of omission, it must be assumed that such omission was made purposely, and the will as .the testator left it must stand: Eichelberger’s Est., 135 Pa. 160; Cox v. Rogers, 77 Pa. 160; Zimmerman v. Lebo, 151 Pa. 345; Caughey v. Bridenbaugh, 208 Pa. 414; Cauffman v. Long, 82 Pa. 72; Lindsey v. Lindsey, 45 Ind. 552; Campbell v. McDonald, 10 Watts, 179.

      July 20, 1910:

      Albert H. Wanner, with him Marker & Hollingsworth and James Francis Burke, for appellee.
   Opinion by

Henderson, J.,

The petition of Annie Bray which was the beginning of this proceeding asked “that a citation be awarded on the said Joseph E. Barnett, Trustee, Executor of the will of said Martin Maxton, deceased, and Trustee of the Estate of said Nellie Parker, as bequeathed to her under the will of the said Mary Maxton, deceased to appear in court, and show cause why petitioner should not receive from him, Joseph E. Barnett, Trustee as aforesaid, a stated periodical sum as a reasonable compensation to her for the personal services and the duties necessarily required of her in remaining with and taking care of the said Nellie Parker during her lifetime.” The application, as will be observed from the foregoing quotation, is directed against the appellant in two capacities: first, as executor of the will of Martin Maxton, and second, as trustee of the estate of Nellie Parker; and the case seems to have been commenced on the theory that there was a liability of the respondent both as executor and trustee. The decree of the court is directed against the appellant as trustee but does not set forth whether he is to respond as executor of the will of Martin Maxton or as trustee of Nellie Parker under the will of Mary Maxton. The discussion of the case, however, by the learned judge of the orphans’ court makes it clear that the liability established arises under the will of Martin Maxton and we should assume, therefore, that the reference in the decree to “Joseph E. Barnett, Trustee” applies to the appellant’s capacity as executor of Martin Maxton although he is not created a trustee by that will and only has the relation to it which any executor would have for the purpose of administration. The counsel for the appellee, however, contends that “this proceeding is not an attempt to mulct Martin Maxton’s estate of other moneys in addition to the legacies bequeathed, but to compel the Trustee of Nellie Parker’s trust estate to pay for services performed in and necessary to the comfortable maintenance and support of an invalid ward.” This position is entirely distinct from that taken by the court and the counsel for the appellant and it will aid to clearness to inquire what relation the petitioner has to either of the estates referred to. Mary Maxton was the wife of Martin Maxton and died in 1901, leaving to survive her a husband and a daughter, Nellie Parker. This daughter was in middle life and an invalid, mentally and physically. Mrs. Maxton possessed an estate of about $80,000, one-half of which she willed to her husband on certain conditions not important in this discussion. The balance of her estate she disposed of as follows: “I give, devise and bequeath to my daughter, Nellie Parker, the remaining one undivided half of my estate, real, personal and mixed, during her life and appoint said Joseph E. Barnett, Trustee, to take charge of her said estate and pay thereout an ample sum for her comfortable maintenance and support during her entire lifetime. At her death whatever shall remain, I give, devise and bequeath to my said husband, Martin Maxton, his heirs and assigns, subject to the provisions and conditions hereinbefore recited. Further, it is my desire that my husband, Martin Maxton and my daughter, Nellie Parker, live and remain in my home and keep house together.” Martin Maxton died in 1904. His will contained the following provisions relevant to this case: “Third: I give and bequeath to Annie Bray the sum of Five Thousand ($5,000.00) Dollars to be paid to her upon the death of my step daughter, Nellie Parker, out of the fund set aside by my deceased wife, in trust in the hands of Joseph E. Barnett, for the use of Nellie Parker, provided the said Annie Bray shall remain with and take care of my step daughter until the death of my said stepdaughter. I direct however that if the said Annie Bray shall leave or cease to take care of the said Nellie Parker, then the Five Thousand ($5,000.00) Dollars last above bequeathed, shall be paid into and become a part of my residuary estate.” The first legacy of $5,000 under this will was paid to Annie Bray who continued to five with Nellie Parker and take care of her under an arrangement with her trustee until February, 1909, when the trustee being dissatisfied with the manner in which Annie Bray was discharging her duties as caretaker discharged her and directed her to withdraw from the Parker home. About three months later Mr.'Barnett was informed, that Annie Bray claimed she had accepted the conditional legacy of $5,000 provided for in the will of Martin Maxton; whereupon, as executor, he sent a communication to her asking whether she- wished to avail herself of that bequest and informing her that as executor of Martin Maxton’s will he would furnish her a room and board with Nellie Parker . so that she could take care of the said Nellie during her lifetime as a consideration for the bequest of $5,000 but with the understanding that she was not to receive anything for her services other than the legacy provided for in the will. This letter was followed a month later by the application to the orphans’ court for the proceeding which we have before us. It will be noticed that the bequest to Nellie Parker and the trust for her comfortable maintenance and support were- provided for by Mary Maxton. What would seem to be an ample estate was set apart and placed in the hands of the trustee with authority to use as much of it as was necessary for the purpose indicated. The administration of the trust was committed to Joseph E. Barnett and on him rested the duty of seeing that the cestui que trust received the benefit of the testamentary provision made by her mother. Annie Bray is not named in the will nor is there any reference to her. It cannot be contended, therefore, that the will of Mary Maxton gives the petitioner any claim against her estate or any demand against the estate of Nellie Parker in the hands of the trustee. Nor is the possible remainder of the estate bequeathed in trust for Nellie Parker available to the estate of Martin Maxton nor subject to the order of the orphans’ court until it can be ascertained after the death of the cestui que trust whether there is any remainder. It all may be consumed in her lifetime in providing for her maintenance, in which event nothing will go to the Martin Maxton estate. It is further to be observed that the petition of the appellee is in her own behalf and for her own benefit. She sets forth that to comply with the direction of the trustee and withdraw from the home of Nellie Parker “would prejudice and jeopardize her right to the legacy bequeathed to her as aforesaid by Martin Maxton deceased, upon condition that she remain with and take care of the said Nellie Parker.” From this embarrassment in her situation she was relieved by the trustee through his notice to her that she could remain in the house with Nellie Parker but without liability of him as trustee for compensation. And she now complains that the trustee has neglected and refused to pay to her the monthly salary which he had theretofore paid to. her or to pay to her any other sum whatsoever as compensation for her services. The petition is in substance a prayer that the petitioner be permitted by decree of the court to remain in charge of Nellie Parker and that the trustee be required, to pay to her such stated compensation as the court may deem reasonable, and the decree of the court goes to this extent. There is no allegation that the appellant’s charge has not been suitably cared for; that there has been any neglect or inattention on the part of the trustee or that he is in any way incapacitated from administering the trust committed to him by the testator. The effect of the decree is, however, to take the charge of Nellie Parker out of the hands of the trustee not in the interest of the ward but at the instance and in behalf of a stranger to the will of Mary Maxton and the estate of her and Nellie Parker. We are unable to find satisfactory reasons for such a conclusion. It was in the power of Mrs. Maxton to make the provision for her helpless child which she did make and to provide for the administration of the trust in the manner in which she did provide. If there is any default on the part of the trustee a proceeding in behalf of the cestui que trust would remedy the wrong, but nothing of that kind was in contemplation. This is a proceeding to secure to the petitioner a contingent bequest provided for in the will of another person, but Martin Maxton had no power by wül or otherwise to interfere with or control the administration of the trust committed to Mr. Barnett. Nothing in the will of Mary Maxton requires the trustee to employ Annie Bray, and if in the exercise of discretion and judgment he deems it inadvisable that she continue longer in the service in which she has been employed there is no warrant in Mrs. Maxton’s will for action by the orphans’ court to interfere with the exercise of such discretion. But it is said, and this we understand to be the view of the learned judge of the orphans’ court, that there is an implied direction in the will of Martin Maxton that Annie Bray receive compensation for taking care of Nellie Parker and that this will is the authority for the decree entered. The case is thus put in the opinion of the court: “The whole question now before the court is, as to the intention of the testator when he made the bequests to Annie Bray. . . . There is no provision for the boarding and maintenance of Annie Bray while she performs these services, but we take it that the testator knowing the conditions on which she had been with him heretofore would intend that Annie Bray should be boarded while she performed these duties. . . . The testator also knew that she had been paid a reasonable wage while she had performed the same services heretofore, and this we think is the key to the question involved. He had given the first Five Thousand ($5,000.00) Dollars as a reward for services done. Can we not fairly infer that- the second bequest would not be made so burdensome as to prevent the legatee from accepting its provisions?” The objection to this line of reasoning is that the will of Martin Maxton is clear and specific. He disposes of all of his estate. Five thousand dollars of it he gives absolutely to Annie Bray. This amount she has already received. Five thousand dollars more he gives to her subject to the conditions stated in his will. He knew that his wife had made provision for the care and maintenance of Nellie Parker. His own will shows that he had his wife’s will in mind when he made the contingent bequest to the appellee. There was no occasion, therefore, for any provision by him looking to the care of his stepdaughter. As an inducement, however, to Annie Bray to stay with Nellie Parker he gives the additional sum of $5,000, this of course to be in addition to anything which might be received from the estate of Nellie Parker in the hands of the trustee. In construing a will regard must be had to the language of the instrument. It may be viewed in all of its parts in the light of the conditions and circumstances which brought it into being, but it is that which is in the will which is to be construed. If the instrument under consideration contained terms which reasonably construed, or viewed in the light of the extrinsic facts which would explain them, amounted to a direction to the executor to pay the cost of supplying a caretaker for Nellie Parker it would be the duty of the court to so say. But we do not find in the will of Martin Maxton any language indicating that he intended to make such provision. He provided for a legacy which might be a large reward for any attention which the legatee should give the stepdaughter or it might have less value contingent on the duration of the stepdaughter’s life, but the legatee could calculate the chances and determine whether she would accept the legacy or not. That the testator could impose the condition which he did- no one can doubt. He may have taken into consideration the fact that Nellie Parker had reached middle life; that she was very infirm in body and mind -and not likely to live long in which case the reward would be more than ample, or he may have taken into consideration the fact that he had already given' $5,000 outright, which sum with what she would get in any event if she continued to care for her charge would give her fair compensation. Whatever the motive of the testator may have been, however, he has expressed his intention in unmistakable terms and has fixed the amount to be paid out of his estate on account of Nellie Parker. To provide for new liabilities is to create a new will and'this we cannot do. Whether the testator should have made some provision under which it would have been possible for Annie Bray to receive both the legacy and compensation is an inquiry which we are not called upon to answer. The testator had a right to dispose of his property as he saw fit. He is not bound to be more generous than he has expressed an intention to be and we find no indication in the will of a direction to the executor to pay anything to the appellee except the legacies specifically designated. We are unable to view the case in any light which will support the decree entered.

It is therefore reversed at the cost of the appellee.


author: Morrison, J.,

text:
    Morrison, Appellant, v. Curry.

      Partnership — Case for jury — Evidence.
    1. In an action against an executor where the case turns on whether the testator was or was not a partner with his brother at a time when a certain loan was made to the alleged partnership, and the evidence on the subject is conflicting, the case is for the jury. In such a case the burden is upon the plaintiff to show that the claim was a partnership debt when it was created, or that it was subsequently assumed by the incoming partner.
    2. If one person, for the purpose of entering into partnership with another borrows money, and uses it in the partnership business, the debt does not thereby become that of the firm, unless expressly assumed.

      Evidence — Witness—Competency of witness — Party dead — Act of June 11,1891, P. L. 287.

    3. Where the plaintiff, an executor, calls witnesses to prove certain conversations that they had had with the defendant, and certain admissions he had made to them in the lifetime of plaintiff’s testator, the defendant is competent under the Act of June 11, 1891, P. L. 287, to contradict such testimony.
    Argued May 2, 1910.
    Appeal, No. 6, April T., 1910, by plaintiff) from judgment of C. P. Jefferson Co., April Term, 1908, No. 295, on verdict, for defendant in case of G. A. Morrison, Executor of James McGee, deceased, v. C. A. Curry, Executor of Gurnie Curry.
    July 20, 1910:
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit to recover moneys which it was alleged plaintiff’s testator had been compelled to pay as a surety of defendant’s testator. Before Reed, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (2-7) various portions of the charge, and (8, 9) ruling as to the testimony of Gurnie Curry, quoted in the opinion of the Superior Court.

      A. J. Truitt, for appellant.

      W. W. Winslow, with him J. E. Calderwood, for appellee.
   Opinion by

Morrison, J.,

Counsel for appellant states in his history of the case that about April 1, 1904, Blair Curry and his brother, Gurnie Curry, bought out William A. McGee’s hotel business, known as the Benson Hotel, at Anita Mines, Jefferson county, Pennsylvania. They paid him $5,000 consideration therefor — Blair paying about $100 and Gurnie some $636 thereof — and secured the balance from other sources — $3,500 being borrowed by Blair from a bank on a judgment note on which James McGee and others were his sureties. The $3,500 note having been discounted by the bank for the firm on April 20, 1904, some weeks after Gurnie became a dormant partner therein and the proceeds as aforesaid entering into the firm’s business.

An examination of the testimony shows that; this is not a fair statement of the transaction in so far as it assumes that Gurnie Curry was a dormant partner in the purchase of the hotel with his brother, Blair. The fact that Gurnie Curry was a dormant partner for a portion of the time that the hotel was run in the name of Blair Curry is conceded, but there is positive testimony that Gurnie Curry did not become interested as such partner for some time after the purchase by Blair and after the giving of the note above referred to, and there is also testimony that Gurnie had no knowledge of the note nor of what was done with the proceeds thereof. The court below in the charge explicitly states that on or about April 1, 1904, Blair Curry 'bought the hotel. The court further states that James McGee, one of the signers of said note with Blair Curry, having died, his estate was compelled to pay one-third of the judgment which was secured on said note or its renewal. The amount so paid was $1,160.87, and this suit was brought for the recovery of that sum.

The learned court further said to the jury: “The plaintiff bases his right to recover in this action on the allegation that Gurnie Curry and Blair Curry jointly borrowed this money, although it was borrowed by Blair Curry and his individual note given for it. In other words, the plaintiff alleges that Blair Curry and his brother, Gurnie Curry, were partners in the purchase of this hotel; that they Bought it together, and subsequently ran it as partners, being jointly interested, each having an undivided one-half interest in the business. That this fact was unknown to the Punxsutawney National Bank, as well as to the sureties who went on Blair Curry’s note at the time this money was borrowed out of the bank and the note given; that they supposed Blair Curry was the only person interested in the transaction. But the plaintiff here alleges that Gurnie Curry was a silent or dormant partner with his brother, and that the purchase of the hotel was made by them as partners and that they were jointly interested at the time, and that the money was borrowed for the purpose of purchasing this property on their joint account, and that while Gurnie Curry was not known in it he was— as we have already stated — a silent or dormant partner in the transaction; and the bank, not having any knowledge of that fact at the time, would have a right subsequently, upon discovery of the fact that there were others interested in the loan, to recover from parties interested in it at the time it was made.

“We say to you, gentlemen, as a matter of law that a silent or dormant partner is one who is unknown in the partnership; but he is liable for the firm contracts that are made during the time he is actually a partner, although that fact may not be known to the persons who deal with the ostensible partner who is known. And therefore, if Blair Curry and Gurnie Curry were jointly interested in the purchase of this hotel; if they were actually associated together as partners in the purchase of that hotel at the time it was purchased and at the time this money was borrowed out of the bank; they both would be equally liable for the payment of that money to the bank or to anyone representing the interests of the bank in the note.”

The court further instructed the jury as follows: “But the question is, When did Gurnie Curry become a partner? When did he become interested with Blair Curry in that hotel? The plaintiff alleges that Gurnie Curry was interested in the inception of the transaction, from the beginning or at the start of it; that Blair Curry was representing not only himself, but also Gurnie Curry in the purchase of this hotel and in the borrowing of this money. And if that is true, and if there was nothing else in the case, we instruct you as a matter of law here that the plaintiff would be entitled to recover.” The court then calls attention to the evidence denying that Gurnie Curry was associated with his brother Blair in the purchase of the hotel or that he had any interest in that transaction at the time of the purchase and that his interest in it arose subsequently. The question was then carefully submitted to the jury as to what the facts were in this respect and the jury was correctly instructed as to the liability of Gurnie Curry dependent upon the facts to be found by the jury from the disputed evidence. The court further instructed the jury that if Gurnie Curry was not originally liable, there was nothing in the case to render him liable upon the grounds of ratification. But that if Gurnie was not interested at the inception of the transaction and not liable on the note, he could render himself liable by assuming or agreeing to pay it and this question was left to the jury as to whether or not he did so assume liability for the payment of the note.

In our opinion, the case was well tried by the court and every ground upon which Gurnie Curry or his estate could be held liable was correctly submitted to the jury. The court told the jury that if Gurnie was a dormant partner from the inception of the transaction, there could be a recovery against his estate in this suit. And further, if his interest or dormant partnership occurred after Blair purchased the property and gave the note in question, and Gurnie Curry becoming interested in the transaction assumed liability for the payment of the note, then the plaintiff might recover in this suit. In our opinion, under all' of the cases, to sustain his case the appellant must satisfy the jury that the claim was a partnership debt when it was created, or that it was subsequently assumed by the incoming partner. No one contends in this case that if Gurnie Curry was a dormant partner from the beginning, that his estate could escape liability in this suit, nor is it contended if he was informed of the transaction and became a dormant partner later and assumed liability for the debt that his estate would not be liable: Hill v. Voorhies, 22 Pa. 68; Graeff v. Hitchman, 5 Watts, 454.

The difficulty with the plaintiff’s case is that his evidence did not convince the jury of the necessary facts upon which a verdict could be found in his favor under the law governing the case.

In Donnally v. Ryan, 41 Pa. 306, it was held as stated in the syllabus: "If one person, for the purpose of entering into partnership with another, borrow money, giving his individual note therefor, and it is used by the copartner in buying goods for the firm, the debt does not thereby become that of the firm unless expressly assumed.” See Siegel v. Chidsey, 28 Pa. 279; Brooke v. Evans, 5 Watts, 196.

The eighth assignment complains of the court for reading the incompetent testimony of Gurnie Curry to the jury from the auditor’s report in the estate of James McGee, deceased, to wit: “I, Gurnie Curry never had anything to do with a $3,500 note given by my brother to the Punxsutawney National Bank. I was never a party to it nor was it given on my credit. I did not come to Anita until a week after my brother bought the place.” Gurnie Curry’s testimony before the auditor was given after G. A. Morrison, the plaintiff, and A. J. Truitt, Esq., his attorney, had testified to certain conversations they had had with Gurnie Curry, and certain admissions he had made which tended to prove the existence of a partnership between himself and Blair Curry at the time the note was signed, in the lifetime of James McGee; and Gurnie Curry was called to contradict this and other testimony that had been offered as to events occurring during the lifetime of said McGee. This seems competent under the Act of June 11, 1891, P. L. 287.

The learned court below in his opinion refusing a new trial, in speaking of this testimony, says: “My recollection is that when the defendant offered this testimony, counsel for the plaintiff stated that he had objected to it before the auditor as incompetent. But no specific objection was made, or ruling obtained, on this introduction in evidence on the present trial, and therefore, no error was committed in reading it to the jury. It is not conceded, however, that this was incompetent testimony.”

We think this case was fairly submitted to the jury and in view of the testimony we are not surprised with the verdict nor with the refusal of the court to grant a new trial.

The assignments of error are all overruled and the judgment is affirmed.


author: HESTER, Judge:

text:
    633 A.2d 203
    COMMONWEALTH of Pennsylvania v. Harry G. DOLENO, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 14, 1992.
    Filed Nov. 4, 1993.

      Robert H. Lang, Pittsburgh, for appellant.
    Scott A. Bradley, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before TAMILIA, JOHNSON and HESTER, JJ.
   HESTER, Judge:

Harry G. Doleno appeals from the January 30, 1992 judgment of sentence of the Court of Common Pleas of Allegheny County. After his hearing, appellant was found guilty and fined $12,460.00 plus costs. For the reasons set forth, we are constrained to vacate the judgment of sentence and discharge appellant.

The procedural history of this case may be summarized as follows. On November 8, 1989, Bethel Park Police Officer Robert D. Gary, Jr. cited appellant for driving a vehicle over the restricted weight or size limit in violation of The Pennsylvania Motor Vehicle Code, 75 Pa.C.S. § 4902(a). A violation of this section constitutes a summary offense. On January 29, 1990, a District Justice found appellant guilty and levied the noted fine in accord with that subsection.

On February 9, 1990, appellant filed an appeal from the summary conviction to the Allegheny County Court of Common Pleas and a trial date was set for March 19, 1990. Neither appellant nor his counsel appeared for the trial which, nonetheless, was held in absentia. Appellant was found guilty and fined $12,460.00 plus costs. Appellant filed exceptions with the trial court. In a June 29, 1990 hearing, appellant’s attorney accepted full responsibility for his and appellant’s absence, claiming that his own error in transcribing the trial date resulted in the ex parte trial. After appellant’s motion for arrest of judgment was denied, he filed a notice of appeal with this court. We reversed the judgment of the Court of Common Pleas and remanded the case for a new trial.

At trial, Officer Gary testified that he saw appellant driving a J & J Doleno Refuse truck on Clifton Road, a restricted roadway. The officer testified that in accordance with Penn-Dot specifications, vehicles using the roadway are not to exceed a maximum weight of ten tons unless the driver is making a local delivery on the roadway. However, the officer stated specifically that he did not remember why the roadway had a restricted weight.

After stopping appellant, the officer asked him if he was making a local pick-up. When appellant replied that he was not, the officer took appellant’s vehicle to a nearby flat weigh scale located at South Hills Movers which was certified by the Department of Agriculture and Bethel Park Police. The vehicle was weighed by a certified weightmaster, and registered 68,740 ■ pounds, or 40,740 pounds over the restricted weight. The officer, who could not produce a certificate of accuracy for the scale, testified that as he had brought it with him to the ex parte hearing, it should be a matter of court record.

In his defense, appellant, who had been a driver for the refuse company since 1977, testified that on November 8,1989, he had made at least nineteen local stops before he was stopped by Officer Gary. Appellant testified that he was on his way to his next pick-up at the time the officer stopped him, and “[he] didn’t know which way to go or how to do it because there’s a lot of roads posted in that part of Bethel Park.” Notes of Testimony (“N.T.”), 1/30/92, at 14. Appellant claimed that driving his vehicle on the restricted roadway was necessary in order to reach his next customer. In rebuttal, Officer Gary detailed the path by which appellant would have needed to travel in order to avoid the restricted roadway. The officer testified that appellant “used Clifton Road as a cut through.” N.T., 1/30/92, at 19.

Appellant also testified that later that day, when he had completed the remainder of his stops, he went to the landfill and weighed in at an amount lighter than the moving company’s scales had registered. Appellant testified that he could not produce the receipt because, “It was so long ago, [he] lost the paper to prove it____” N.T., 1/30/92, at 17.

Based on this testimony, the trial court found appellant guilty of driving his vehicle in violation of 75 Pa.C.S. § 4902(a) (emphasis added):

(a) Restrictions based on condition of highway or bridge. — The Commonwealth and local authorities with respect to highways and bridges under their jurisdictions may prohibit the operation of vehicles and may impose restrictions as to the weight or size of vehicles operated upon a highway or bridge whenever they determine that the highway or bridge may be damaged or destroyed unless use by vehicles is prohibited or the permissible size or weight of vehicles 'is reduced. School buses, emergency vehicles and vehicles making local deliveries or pickups may be exempted from restrictions on the use of highways imposed under this subsection.

75 Pa.C.S. § 4902(b) outlines the other reason why roadways and bridges may be weight restricted.

(b) Restrictions based on traffic conditions. — The
Commonwealth and local authorities with respect to highways and bridges under their jurisdictions may prohibit the operation of vehicles and may impose restrictions as to the weight or size of vehicles operated upon a highway or bridge whenever they determine that hazardous traffic conditions or other safety factors require such a prohibition or restriction. School buses, emergency vehicles and vehicles making local deliveries or pickups may be exempted from restrictions on the use of highways imposed under this subsection.

The fines provided for the subsections are as follows:

(g) Penalty.—
(1) Any person operating a vehicle or combination upon a highway or bridge in violation of a prohibition or restriction imposed under subsection (a) is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of $75, except that any person convicted of operating a vehicle with a gross weight on excess of a posted weight shall, upon conviction, be sentenced to pay a fine of $150 plus $150 for each 500 pounds, or part thereof, in excess of 3,000 pounds over the maximum allowable weight.
(2) Any person operating a vehicle or combination in violation of a prohibition or restriction imposed under subsection (b) is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of not less than $25 and not more than $100.

Following this judgment against him, appellant filed a motion in arrest of judgment averring that the Commonwealth had failed to establish a prima facie case against appellant because it failed to produce evidence that the scale used to weigh his vehicle was accurate; failed to produce the reason why the roadway was restricted as to weight; and failed to negate appellant’s contention that he was involved in a local delivery when cited. In the alternative, appellant argues that the prosecution against him is barred under 42 Pa.C.S. § 5553(e) as the trial was held over two years after the commission of the offense. The trial court denied appellant’s motions, and this appeal followed.

On appeal, appellant argues that the Commonwealth failed to present sufficient credible evidence to sustain his summary conviction. Specifically, he claims that the Commonwealth failed to establish that the weigh scale was accurate. Furthermore, he argues that because the Commonwealth did not disprove his contention that he was in the process of making a local pick-up at the time he was cited, he is exempt under the terms of the statute. Lastly, appellant argues that since the Commonwealth failed to provide the reason for the weight restriction on the roadway, the case against him fails.. In reviewing a challenge to the sufficiency of the evidence, we determine

whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.

Commonwealth v. Akers, 392 Pa.Super. 170, 181, 572 A.2d 746, 751 (1990), quoting Commonwealth v. Jackson, 506 Pa. 469, 472-3, 485 A.2d 1102, 1103 (1984).

First, we will address appellant’s contention with regard to the accuracy of the scale on which his vehicle was weighed. Appellant argues, “The section in question seems clearly to indicate that the Commonwealth must establish inter alia, the exact weight of Defendant’s vehicle.” Appellant’s brief at 11. However, appellant provides us with no legal support for his assertion. Our review of the statute and the case law which interprets it reveals that the production of a certificate of accuracy is not a requisite element to sustain a conviction under the statute. In a prosecution for operating an overweight vehicle, the Commonwealth has met its burden' of proof when the citing officer testifies that appellant and the vehicle were taken to a stationary scale, weighed by a certified weightmaster while the officer was present, and that the vehicle was overweight. See Commonwealth v. Mann, 20 D. & C.3d 53, 1981. As the legislation infers no presumption, the issue of the scale’s accuracy becomes a question of fact for the court to decide. However, even if we agreed with appellant as to the importance of the certificate of accuracy, as it had been admitted into evidence before the same judge during the first hearing, the certificate is a matter of court record.

Appellant next proposes that the Commonwealth’s case against him is insufficient because the Commonwealth did not prove that he was not in the process of making a local delivery when cited. As appellant fails to argue this premise in his brief, the issue is waived. Commonwealth v. Miller, 390 Pa.Super. 129, 568 A.2d 228 (1990). Nevertheless, we will briefly outline why appellant’s contention fails. First, appellant’s argument is improperly labeled as one of sufficiency. Instead, this claim goes to the weight of the evidence because it depends upon a resolution of the conflicting testimony of competing witnesses. In essence, appellant claims that the Commonwealth had the duty to disprove his testimony that he was making a local delivery when he was cited. Appellant never testified that the stop was on Clifton Road, only that he was driving on Clifton Road to make his next local stop. In rebuttal, the Commonwealth offered the testimony of an officer who had worked the streets of Bethel Park for thirteen years. Based on appellant’s testimony, the officer outlined a route by which appellant could have driven his vehicle from one pick-up to the next, without using Clifton Road. It is evident from the trial court opinion that the court credited the testimony of the officer over appellant’s testimony. As the trial court is free to believe all, part, or none of the evidence, we will not overturn its finding. Commonwealth v. Yetsik, 402 Pa.Super. 615, 587 A.2d 788 (1991).

Finally, appellant claims that since the Commonwealth failed to provide the reason for the roadway’s weight restriction, the Commonwealth’s case against him fails. Appellant maintains that 75 Pa.C.S. § 4902(a) imposes heavy penalties for violations of posted weight restrictions which are imposed due to the condition of a roadway or bridge, whereas 75 Pa.C.S. § 4902(b) mandates a fine for a violation of weight restrictions which are imposed due to traffic conditions. The distinction is important because the fine imposed for violating subsection (a) requires the offender whose vehicle’s gross weight exceeds the posted weight to pay a fine of $150.00 for each 500 pounds in excess of 3,000 pounds over the maximum allowable weight, and subsection (b) imposes a fee not to exceed $100.00. Appellant relies upon Commonwealth v. Geise, 314 Pa.Super 24, 460 A.2d 354 (1983), for support.

In Geise, we held that the Commonwealth must prove whether the violation was of subsection (a) or (b) as a necessary element of its prima facie case. We ruled that proof could consist of a document from the district engineer stating that the reason for the restriction was due to deterioration, or an officer’s testimony with regard to that document. In this case, Officer Gary testified that “Clifton Road ... is posted as per specifications by PennDOT as restricted roadway, not to exceed 10 tons unless there is a local delivery on that particular roadway.” N.T., 1/30/92, at 4. When asked why the roadway was posted, the officer replied, “I can’t recall exactly what the engineers have written down for that particular roadway. I can only assume.” N.T., 1/30/92, at 8. When asked if the road was properly posted, the officer replied, “Yes.” N.T., 1/30/92, at 8.

The similarities in both Geise and the present case are evident. In each case, the drivers were found guilty of violating 75 Pa.C.S. § 4902(a). While the Commonwealth attempts to distinguish Geise because that violation involved a bridge and the instant case involves a roadway, we fail to see the import of such a distinction since the statutory language clearly sets forth the same penalties with respect to roadways and bridges. The Commonwealth argues that the officer’s testimony with regard to the proper posting of the road, in conjunction with the fact that he cited appellant under subsection (a), must lead us to conclude that the proper reason for the posting was to protect the roadway against deterioration. Unfortunately, the Commonwealth provides no legal precedent in support of its contention. The officer’s statement that the road was posted properly merely satisfies the statutory requirement that the road must be posted with the maximum allowable weight. The sign itself states no reason for the posting. Moreover, the officer could not testify to the reason for the posting, only that it was “per specifications by Penn-Dot.” N.T., 1/30/92, supra. We are unconvinced by the Commonwealth’s attempt to extrapolate a necessary element of the offense with the use of circular reasoning.

As it is clear that appellant drove an overweight vehicle over a restricted roadway in total disregard for the posted weight limitation, and likewise clear that he failed to convince the trial court that he was exempt from that restriction, he is guilty of a violation under 75 Pa.C.S. § 4902. Unfortunately, due to the Commonwealth’s failure to prove a necessary element of the offense, it is unclear under which specific subsection he is guilty. While we would prefer to affirm the ruling of the trial court, we are unable to uphold the conviction under subsection (a). Therefore, as required by our holding in Geise, we are constrained to reverse and as a consequence, will not address appellant’s contentions with regard to 42 Pa.C.S. § 5553(e).

In accordance with the above, we are constrained to vacate the judgment of sentence and discharge appellant.

      . We note that the caption indicates that the present appeal was taken from the order of court dated March 10, 1992, the date on which the trial court entered the order denying appellant’s post-trial motions. Such orders are non-appealable. Therefore, despite the statement contained in the caption, we treat the present appeal as having been taken from the judgment of sentence entered January 30, 1992.


author: HOFFMAN, Judge.

text:
    633 A.2d 208
    William K. REILLY, Appellant, v. TIERGARTEN INC. T/A Black Horse Tavern, and Winifred M. Fritz As Personal Representative of the Estate of Thomas J. Fritz, and Lima Beverage, Inc. and 87-Beers, Inc. T/A Brookhaven Distributors, (Two Cases).
    Superior Court of Pennsylvania.
    Argued May 20, 1993.
    Filed Nov. 12, 1993.

      Garland D. Cherry, Jr., Media, for appellant. (Submitted)
    Robert P. Hagan, Drexel Hill, for Tiergarten & Fritz, appellees.
    Mark J. Connor, Media, for Lima Beverage, appellee.
    Ernest Iannelli, Philadelphia, for 87-Beers, Inc., appellee.

      Before WIEAND, CIRILLO and HOFFMAN, JJ.
   HOFFMAN, Judge.

This is an appeal from the November 16, 1992 and December 9, 1992 orders granting appellees’, Tiergarten, Inc., t/a Black Horse Tavern, and Winifred Fritz, as personal representative of the estate of Thomas Fritz, Lima Beverage, Inc. and 87-Beers, Inc, t/a Brookhaven Distributors, motions for summary judgment. Appellant, William Reilly, presents the following issues for our review:

1. The lower court erred by ruling as a matter of law that the conduct of the police in shooting the minor plaintiff was unlawful and was a superseding cause.
2. The lower court erred by ruling as a matter of law that the criminal conduct of the minor plaintiff himself was a superseding cause of harm.
3. The lower court erred by ruling as a matter of law that the assaultive conduct of the minor plaintiff and the shooting of him by police were unforeseeable consequences of his intoxication; and by confusing foreseeability of injury with foreseeability of the manner or extent of injury.
4. The lower court erred in concluding that the decision of the U.S. District Court for the Eastern District of Pennsylvania in Carroll v. Stouffer Restaurant Company was controlling.
5. Given the facts as stated, is it essential for the plaintiff to plead and prove as an element of his cause of action that it was foreseeable by defendant liquor licensees that the furnishing of alcohol to him might cause him to become violent and suicidal and might result in his being shot by police?

Appellant’s Brief at 3-6. For the reasons set forth below, we affirm.

In reviewing an order granting summary judgment, an appellate court “must accept as true all well pleaded facts in the non-moving party’s pleadings, giving the non-moving party the benefit of all reasonable inferences to be drawn therefrom.” Askew By Askew v. Zeller, 361 Pa.Super. 35, 37, 521 A.2d 459, 461 (1987) (citation omitted).

Applying this standard of review, the relevant facts are as follows:

During the late afternoon and early evening hours of May 9, 1990, plaintiff William Reilly, a minor, purchased two cases of beer from defendant, Lima Beverage. Thereafter, he and his friends consumed the beer and then purchased another case of beer from defendant, Brookhaven Distributors. The third case of beer was partially consumed by the plaintiff and his friends. Later that evening, plaintiff, accompanied by his friends, was served excessive amounts of alcohol at defendant, Blackhorse Tavern. Following the consumption of alcohol at the Blackhorse Tavern, plaintiff walked a short distance to his home whereupon he got into an argument with his father. Plaintiff threatened to harm himself or his father with a kitchen knife, and did injure himself with the knife. He then pushed his father into the fireplace, injuring his father.
Thereafter, State Police were called and they tried unsuccessfully to persuade plaintiff to surrender his knife. The police finally surrounded plaintiff at gunpoint in an open field near his home. Plaintiff still refused to surrender the knife and repeatedly asked the police to shoot him. Several times during the encounter, plaintiff moved and/or lunged towards police with the knife asking to be shot. During the confusion, one of the police officers fired two gunshots inflicting severe wounds to plaintiffs abdomen and pelvis. Although he survived the shooting, plaintiff suffered serious and permanent injuries.

Trial Court Opinion at 1-2.

Appellees filed motions for summary judgment which were subsequently granted by the trial court. Post verdict motions were filed and denied. This timely appeal followed.

Essentially, appellant asserts that the trial court erred in granting appellees’ motions for summary judgment. We disagree.

In reviewing an order granting a motion for summary-judgment, an appellate court must determine:

whether the plaintiff has alleged facts sufficient to establish a prima facie case. If so, the second step is to determine whether there is any discrepancy as to any facts material to the case. Finally, it must be determined whether, in granting summary judgment, the trial court has usurped improperly the role of the jury by resolving any material issues of fact.

Dudley v. USX Corp., 414 Pa.Super. 160, 168-69, 606 A.2d 916, 920 (1992). An order granting a motion for summary judgment will not be reversed ábsent an error of law or an abuse of discretion. McDonald v. Marriott Corp., 388 Pa.Super. 121, 125, 564 A.2d 1296, 1298 (1989) (citation omitted).

The four elements necessary to establish a cause of action in negligence are: a duty or obligation recognized by law; breach of that duty by the defendant; causal connection between the defendant’s breach of that duty and the resulting injury; and actual loss or damage suffered by the complainant. See Orner v. Mallick, 515 Pa. 132, 135, 527 A.2d 521, 523 (1987).

In the instant case, appellant clearly established that appellees owed him a duty of care. The Pennsylvania Dram Shop Act establishes a duty on the part of bar owners not to serve alcohol to minors. Appellees breached that duty by serving alcohol to appellant when he was a minor. See Herr v. Booten, 398 Pa.Super. 166, 172, 580 A.2d 1115, 1118 (1988) (the serving of alcohol to any person under the age of 21 is negligence per se). See also Matthews v. Konieczny, 515 Pa. 105, 527 A.2d 508 (1987) (commercial licensees may be held liable for injuries caused by the service of alcohol to minors).

However, the breach of a statutory duty does not establish a cause of action in negligence, absent proof of causation and injury. Vernon v. Stash, 367 Pa.Super. 36, 46, 532 A.2d 441, 446 (1987); Simon v. Shirley, 269 Pa.Super. 364, 409 A.2d 1365 (1979) (saloon that violated statute by serving alcohol to minor, who was subsequently involved in a car accident, will not incur civil liability without evidence that minor was served while visibly intoxicated). To satisfy the requirement of causation, the complainant must demonstrate that the breach was both the proximate cause and the actual cause of his injury. McDonald, 388 Pa.Super. at 125, 564 A.2d at 1298.

Proximate cause, is a question of law, to be determined by the judge, and it must be established before the question of actual cause may be put to the jury. Novak v. Jeannette Dist. Mem. Hosp., 410 Pa.Super. 603, 606, 600 A.2d 616, 618 (1991); Askew by Askew, 361 Pa.Super. at 41, 521 A.2d at 463. A determination of legal causation, essentially regards “whether the negligence, if any, was so remote that as a matter of law, [the actor] cannot be held legally responsible for [the] harm which subsequently, occurred.” Novak, 410 Pa.Super. at 606, 600 A.2d at 618 (citation omitted). Therefore, the court must determine whether the injury would have been foreseen by an ordinary person as the natural and probable outcome of the act complained of. Merritt v. City of Chester, 344 Pa.Super. 505, 508, 496 A.2d 1220, 1221 (1985).

In the instant case, appellant’s assaults upon his father and the intervening police, as well as the police’s subsequent wounding of appellant, were not the natural and probable results of appellees’ failure to comply with the Dram Shop Act. Id. (liability is contingent upon the probability or foreseeability of the resulting injury, not merely the possibility that it could occur). As the remoteness of the negligent act to the injury is great, the trial court did not abuse its discretion in concluding that there was no proximate cause. Askew by Askew, 361 Pa.Super. at 42, 521 A.2d at 463.

Appellant has not established a cause of action in negligence. Farnese v. Southeast. Pa. Transp. Auth., 338 Pa.Super. 130, 135, 487 A.2d 887 (1985) (“The trial court has a duty to prevent questions from going to the jury which would require it to reách a verdict based on conjecture, surmise, guess or speculation”). Accordingly, we hold that the trial court did not err in granting appellees’ motions for summary judgment.

Affirmed.

      . The Dram Shop Act states that for persons licensed under Article IV it is unlawful
      to permit ... minors to frequent his licensed premises ... except minors accompanied by parents, guardians, or under proper supervision ... nor shall the licensee knowingly permit any liquor ... to be sold, furnished or given to or be consumed by any minor.
      47 Pa.S. 4-493(14) (1969).


text:
    633 A.2d 211
    Barbara L. HEISEY, Appellant, v. Rodney F. HEISEY.
    Superior Court of Pennsylvania.
    Submitted Aug. 23, 1993.
    Filed Nov. 5, 1993.

      Maria P. Cognetti, Harrisburg, for appellant.
    Edward J. Coyle, Lebanon, for appellee.
    Before OLSZEWSKI, POPOVICH and HESTER, JJ.
   HESTER, Judge:

Barbara L. Heisey appeals from the February 11, 1993 order setting child and spousal support against appellee, Rodney Heisey, at $262 a week. We agree with appellant’s contention that the trial court incorrectly computed appellee’s income for support purposes. We are constrained to reverse and remand for recalculation of support.

The parties were married on September 13, 1975, and separated on February 17,1990, when appellee left the marital home. They had three children: Christopher, born July 9, 1981, Erin, born January 16, 1984, and Joanna, born September 12,1988. Appellee was the sole proprietor of an insurance business, which he incorporated after the parties separated. He receives a salary from the business, and in addition, certain of his personal expenses are paid. Appellant has a bachelor’s degree in psychology; she stopped working outside the home when her children were born.

At the time of the support hearing, appellee’s 1992 corporate income tax return had not been completed and was not available. The trial court accepted appellee’s calculation of income on the divorce income and expense form as his income for 1992. The court averaged that income with appellee’s 1991 salary as shown on the corporate federal income tax return. On the 1991 corporate tax return, appellee’s salary was $800 per week. Appellee claimed that his salary was reduced to $700 a week in 1992. The trial court then added back into the calculation the amount shown on the 1991 corporate tax return as the depreciation deduction for income tax purposes. The court then subtracted from that figure the “loss” shown on the federal income tax return. However, it failed to add in other benefits that appellee receives from his company, including a cash advance and its payment of his automobile expenses, life insurance, and entertainment expenses.

We agree with appellant’s contention that this method of calculating appellee’s income for support purposes violated the applicable law. Pa.R.Civ.P. 1910.16-5 provides that monthly net income shall be calculated for support purposes as follows:

(b) Monthly Net Income. The amount of support to be awarded is based in large part upon the parties’ monthly net income. Monthly net income is determined by subtracting only the following items from monthly gross income:
(1) federal, state, and local income taxes;
(2) F.I.C.A. payments and non-voluntary retirement payments;
(3) union dues;
(4) health insurance premiums for the benefit of the other party or the children.
Monthly gross income is ordinarily based upon at least a six-month average of all of a party’s income. The term “income” is defined by the support law, 23 Pa.C.S. § 4302, and includes income from any source. The statute lists many types of income including:
(1) wages, salaries, fees and commissions;
(2) income from business or dealings in property;
(3) interest, rents, royalties, and dividends;
(4) pensions, and all forms of retirement;
(5) income from an interest in an estate or trust; and
(6) social security benefits, temporary and permanent disability benefits, workmen’s cornu--nsation and unemployment compensation.

(Emphasis added).

We have held that in computing income available for support when the payor owns his own business,

income must reflect actual available financial resources and not the often times fictional financial picture which develops as the result of depreciation deductions taken against ... income as permitted by the federal income tax laws. Otherwise put, “cash flow” ought to be considered and not federally taxed income.

McAuliffe v. McAuliffe, 418 Pa.Super. 39, 43, 613 A.2d 20, 22 (1992) (emphasis added). Furthermore, personal perquisites, such as entertainment and personal automobile expenses, paid by a party’s business must be included in income for purposes of calculating child support. See Coffey v. Coffey, 394 Pa.Super. 194, 575 A.2d 587 (1990).

In the present case, it is clear that the trial court did not apply the above standards. It failed to consider as income the perquisites paid by appellee’s corporation on his behalf, it failed to consider a cash advance appellant received from the corporation, and it deducted a “loss” shown on the corporate federal income tax return that has no relevance in determining actual cash available for support. The loss sustained by appellant’s business, which apparently was financed by loans ■to the corporation by appellant’s mother, do not change the fact that he had his full salary of $700 or $800 per week available to himself and thus, available for support.

Appellee’s actual financial condition must be determined. “All income from whatever source is to be evaluated as well as financial resources and property interests” for purposes of calculating support. Shindel v. Leedom, 350 Pa.Super. 274, 279, 504 A.2d 353, 355 (1986).

When actual, net earnings do not reflect earning capacity, the trial court should investigate a variety of sources to determine a party’s true wealth. DeMasi v. DeMasi, 366 Pa.Super. 19, 34, 530 A.2d 871, 878 (1987). Normally, the court should pierce the corporate veil to determine if a spouse’s ability to pay support is enhanced by advantages owing to ownership or membership in a corporation. See, e.g., Pacella v. Pacella, 342 Pa.Super. 178, 492 A.2d 707 (1985) (where spouse receives numerous no-interest loans from corporation, has numerous personal expenses paid by corporation and co-mingles personal funds with corporate funds, it is appropriate to consider his earning capacity rather than salary in calculating alimony award).

Appellant also claims on appeal that the trial court should not have averaged appellee’s 1991 and 1992 income and that his income should have been calculated based on his earning capacity, as actually demonstrated on the 1990 and 1991 tax returns. She suggests that his explanation for his alleged loss of 1992 receipts, the 1991 withdrawal of an insurance company from underwriting policies in Pennsylvania, was not subjected to the amount of scrutiny required under the law. Banks v. Banks, 330 Pa.Super. 128, 478 A.2d 1387 (1984) (careful scrutiny of a claim of reduced income is required where self-employment is involved). We have concluded that the trial court erred in its calculation of appellee’s income. On remand, appellee’s business tax return for 1992 will be available. Accordingly, appellee will be able to substantiate whether he is suffering a continued loss in business in the ensuing proceedings, and nothing will be left to speculation.

We reject appellant’s contention that appellee should not have been credited in his support arrearages with the amount he previously paid for mortgage on the marital home, where appellant resides. Under Pa.R.Civ.P. 1910.16 — 5(f), the guidelines assume that the spouse occupying the marital residence is to pay the mortgage for it. Therefore, if appellee paid for the mortgage, he should be given credit in calculating his support arrearages.

Order vacated and remanded to the trial court for further proceedings in accordance with this Opinion.

      . We note that the caption incorrectly indicates that the appeal is from a judgment.

      . However, since the business itself lost money, there was no “income” from it imputable to appellee, and without business “income,” there is no reason to add back in non-cash deductions such as depreciation to determine actual business "income.” Appellee's salary and corporate-paid perquisites are the actual cash flow available to him and therefore, for support purposes. His actual income from the business, purely on a cash-flow basis, is zero since the business sustained an actual cash loss.


author: OLSZEWSKI, Judge:

text:
    633 A.2d 213
    Charles SCIPIO, Appellant, v. BARTON GLEN CLUB, INC.
    Superior Court of Pennsylvania.
    Argued Sept. 30, 1993.
    Filed Nov. 15, 1993.

      Holly B. Conway, Stroudsburg, for appellant.
    Janet K. Catina, Stroudsburg, for appellee.
    Before ROWLEY, President Judge, and OLSZEWSKI and BECK, JJ.
   OLSZEWSKI, Judge:

Charles Scipio appeals an order enforcing a restrictive covenant, thwarting his development plans for a ten-acre tract he owns in Pocono Township. The tract is bounded by U.S. Route 80 and the Barton Glen subdivision, such that Scipio’s development plans required him to purchase one of the Barton Glen lots in order to build an access road. Scipio’s development plan called for subdividing his ten-acre tract into four residential lots, and dedicating to public use the access road which he planned to build over the Barton Glen lot, pursuant to Township requirements. All lots in the subdivision, however, are encumbered by restrictive covenants limiting their use to single-family private residential purposes.

Scipio filed a declaratory judgment action to determine whether the restrictive covenants permitted or forbade his road construction plans. After surviving a demurrer, the trial court granted judgment on the pleadings in favor of Barton Glen. The court ruled that Scipio’s plan to build and dedicate a public road on the lot was inconsistent with the single-family private residential use mandated by the restrictive covenant. We affirm.

The material facts of this case are not at issue, making judgment on the pleadings proper. See Pa.R.C.P. 1034. Because this case turns entirely upon the application of the restrictive covenant to the facts at hand, judgment on the pleadings is appropriate. Gallo v. J.C. Penny Casualty Insurance Co., 328 Pa.Super. 267, 476 A.2d 1322 (1984) (judgment on the pleadings may be appropriate in cases which turn on the construction of a written agreement). All the lots in the Barton Glen subdivision are encumbered with a number of restrictive covenants, one of which provides that the lots “and any buildings and improvements now or thereafter erected thereon shall be used only for single family private residential purposes.” The question is whether Scipio’s road development plans fit within this description.

Scipio argues that the road he intends to build and dedicate to the Township would be used to access the four single-family private residences he plans to develop on his ten-acre tract. Thus the use would be “only for” single-family private residential purposes. Scipio also points out that the trial court acknowledged that he might build a driveway on his Barton Glen lot which could access the ten-acre tract, consistent with the covenant; Scipio argues that the difference between a driveway and a public road is only one of degree.

We find these arguments unpersuasive. Unlike a driveway, a road dedicated to the Township for public use simply cannot be characterized as private. We encountered similar facts in Gey v. Beck, 390 Pa.Super. 317, 568 A.2d 672 (1990), and held that building a public road would necessarily violate the restrictive covenant on a lot designated exclusively for single-family private residential use. Scipio attempts to distinguish this case because it involved a smaller subdivision with a private cul-de-sac, whereas the Barton Glen subdivision already has public roads. We find that the same concern for peace and privacy which underlay the restrictive covenants in Gey v. Beck applies with equal force in the instant case, and therefore follow its holding.

Scipio finally argues that the restrictive covenant may not be enforced unless it will benefit those seeking to enforce it. See, e.g. Price v. Anderson, 358 Pa. 209, 56 A.2d 215 (1948). We need merely imagine this case from the perspective of the owner of the lot adjacent to Scipio’s in Barton Glen, who no doubt relied on having a private single-family residence next door, rather than a public roadway. Restrictive covenants are designed to protect property owners from such future encroachments. While the law may not favor restrictions on an owner’s full and free enjoyment of his property, the law will enforce a restrictive covenant when clearly applicable. Gey v. Beck, supra, at 323-24, 568 A.2d at 675. Such is the case here.

Order affirmed.


text:
    633 A.2d 215
    EVERETT CASH MUTUAL INSURANCE COMPANY, Appellant, v. Edwin KRAWITZ, Trustee for Elsie Keiper.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1993.
    Filed Nov. 15, 1993.

      Glenn A. Rieketti, Philadelphia, for appellant.
    Edwin Krawitz, Stroudsburg, for appellee.
    Before ROWLEY, President Judge and OLSZEWSKI and BECK, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order by the Honorable Linda Wallach Miller denying appellant’s petition to vacate an appraisal award on an insurance claim. Appellant, the Everett Cash Mutual Insurance Company (Insurer), insured a house owned by appellee Edwin Krawitz (Owner), which burned down on April 8, 1992. Appellant has never denied liability under its fire insurance policy; it is the procedure for determining the amount of compensation which is at issue. We agree with Judge Miller that the insurance appraisal award was arrived at properly, and should not be vacated. We therefore affirm.

Judge Miller incisively set forth the history of this case in the opinion accompanying her order of March 31, 1993. R.R. p. 40. Our review of the record confirms her findings, which we will summarize briefly. Owner and Insurer each retained an adjuster to determine the amount of the loss. When the adjusters (Young Adjustment Company for Owner, Jack Dietrich Associates for Insurer) disputed the amount of the fire loss, they turned to the insurance policy’s appraisal clause to settle their differences. R.R. p. 12, ¶ 13. This clause requires each party to select an appraiser; the appraisers then select an umpire. If the appraisers cannot agree on the amount of the loss, they submit the differences in their respective estimates to the umpire. Any two of these three parties can then sign an agreement which fixes the value of the loss.

Young, Owner’s adjuster, appointed Charles Kessler, a builder, as its appraiser; Dietrich, Insurer’s adjuster, appointed Edward Gieda, a general contractor. Kessler and Gieda agreed to select Alfred MacMoran, of the F.P. Davis and Sons construction management company as umpire. Gieda never signed the official document naming MacMoran as the umpire, ostensibly because of a fee dispute.

At this point, the record shows that Kessler visited the site and worked diligently with the umpire to settle the amount of the loss. Gieda, on the other hand, remained “hung up” on the fee dispute; he missed appointments with Kessler and MacMoran, failed to communicate with them, and never submitted any loss estimates to them. R.R. p. 45. After more than a month of inaction on Gieda’s part, Kessler decided the time had come to settle the claim. Kessler adopted the estimate of a contractor engaged by Young (Owner’s adjuster), met with MacMoran, and on October 6, 1992, the two negotiated an amount for the fire loss. Insurer filed a petition to vacate this award and have the court appoint another umpire, which was denied. This appeal followed.

Insurer presents three questions on appeal, all stemming from its contention that Owner proceeded to settle the claim in violation of the appraisal clause. Because Insurer bases its arguments on its own strict interpretation of the insurance contract, we are mindful that when ambiguous, insurance contracts are to be construed strictly against insurers and in favor of insureds. See Bateman v. Motorists Mutual Insurance Co., 527 Pa. 241, 590 A.2d 281 (1991). Furthermore, courts must focus on the reasonable expectation of the insured in an insurance transaction. Collister v. Nationwide Life Insurance Co., 479 Pa. 579, 388 A.2d 1346 (1978), cert. denied 439 U.S. 1089, 99 S.Ct. 871, 59 L.Ed.2d 55 (1979). Collister specifically advises:

Courts should be concerned with insuring that the insurance purchasing public’s reasonable expectations are fulfilled. Thus, regardless of the ambiguity, or lack thereof, inherent in a given set of insurance documents (whether they be applications, conditional receipts, riders, policies, or whatever), the public has a right to' expect that they will receive something of comparable value in return for the premium paid. Courts should also keep alert to the fact that the expectations of the insured are in large measure created by the insurance industry itself. Through the use of lengthy, complex, and cumbersomely written applications, conditional receipts, riders, and policies, to name just a few, the insurance industry forces the insurance consumer to rely upon the oral representations of the insurance agent.... Courts must examine the dynamics of the insurance transaction to ascertain what are the reasonable expectations of the consumer.

Collister, supra, at 594-595, 388 A.2d at 1353-1354 (emphasis added). See also Dibble v. Security of America Life Insurance, 404 Pa.Super. 205, 590 A.2d 352 (1991). Thus we must consider the entire transaction, and not just a technical, precise and narrow interpretation of one clause of the insurance contract. With this policy in mind, we address Insurer’s claims.

Insurer argues first that the umpire only had jurisdiction to settle “differences” between the appraisers’ valuations; since the appraisers never discussed the claim directly with each other, and neither submitted its own evaluation to the umpire, the umpire had nothing to settle. Insurer admits that its appraiser never submitted anything to anyone, and argues that it was a violation of the contract for Kessler, Owner’s appraiser, to adopt a contractor’s itemization of the loss as his own. Insurer then characterizes the submission of differences in these evaluations as a condition precedent to the exercise of the umpire’s jurisdiction.

Viewing the transaction as a whole, we find this argument meritless. Nothing in the contract supports Insurer’s claim that an appraiser may not adopt a contractor’s estimate as his own. Kessler had done all he could to meet with Gieda to evaluate the loss; only after Gieda proved uncooperative did Kessler bring his own evaluation of the loss to the umpire. The record shows that Gieda, Insurer’s appraiser, did nothing to advance the settlement of this claim, presumably because of a fee dispute with the umpire MacMoran. Insurer essentially asks us to recognize a condition precedent to payment in its insurance policy which only it can fulfill. This would convert Insurer’s duty to pay into an option to pay, or give it the power to delay payment indefinitely, as in the present case. Such an interpretation would utterly destroy any reasonable expectations of the insured, and cannot be accepted by this Court.

Insurer argues that if Owner felt that Insurer was not properly performing its duties under the appraisal clause, then Owner should have brought an action in equity to compel Insurer to specifically perform. Ice City, Inc. v. Insurance Company of North America, 456 Pa. 210, 314 A.2d 236 (1984). While a narrow reading of the Ice City case does support equity as an available remedy, we agree with the court below that the case stands for the broad proposition that appraisal clauses should be honored without resort to litigation. “This Court cannot agree that the insurer may unilaterally free itself from its statutorily-imposed and contractually-required appraisal obligations.” Id. at 220, 314 A.2d at 242.

Here Insurer, through its appraiser Gieda, stymied the entire valuation process. Kessler’s actions in response to this stonewalling were perfectly reasonable. Kessler presumed that since Gieda offered no evaluation, his evaluation of the loss was $0, and the “differences” between the appraisals would therefore be the entire amount of the loss. Kessler then took these differences to MacMoran, the umpire, and pursuant to the appraisal clause the two negotiated a settlement. Insurer brought this settlement upon itself through its own derelict behavior. Furthermore, Insurer nowhere claims that the amount of the settlement is unreasonable or even a little too high; rather, Insurer asks us to vacate the award solely because it does not like the “one-sided” manner of resolution. Viewing the transaction as a whole, we deem any dissatisfaction to be a result of Insurer’s own wrongdoing. Hence, we agree with Judge Miller that equity will not now permit us to vacate this award.

Our resolution of this first argument disposes the other two. Indeed, the remaining two arguments raise no new issues. Insurer argues that because, according to its interpretation, the appraisal clause was not strictly followed, a new umpire should be appointed and a new appraisal conducted. We have addressed the issue of performance of the appraisal clause, and have concluded that Insurer’s position is unreasonable and inequitable. We have upheld the appraisal award, and hence there is no need to appoint a new umpire or conduct a new appraisal.

The order denying the appellant Insurer’s petition to vacate the appraisal award is affirmed.

      . The record contains correspondence between Gieda and MacMoran regarding MacMoran's umpire fee. The insurance policy’s appraisal clause requires the parties to split the umpire fee. Gieda wrote to MacMoran on August 26, 1992, asking (1) if he was to pay $400, or was that the amount to be split; and (2) presuming the $400 was an advance fee, what MacMoran's hourly rates were. R.R. p. 14. MacMoran responded two days later that Gieda was to pay $400 (Kessler, the Owner's appraiser, had already agreed to pay his share), but that would be the entire umpire fee; MacMoran would bill at this flat rate rather than by the hour. R.R. p. 16. This exchange should have ended any fee dispute.

      . Kessler asked Gieda to attend the meeting with MacMoran, but Gieda never returned his call. R.R. pp. 209, 268.

      . We note further that MacMoran was only asking Gieda for a $400 flat fee, which Kessler had already agreed to pay. Meanwhile, the insured had lost a house valued at over $100,000, and months had passed without any reimbursement from the Insurer.