text:
    598 A.2d 1017
    COMMONWEALTH of Pennsylvania v. Kenneth H. WHEATON, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 1, 1991.
    Filed Nov. 4, 1991.

      Kenneth H. Wheaton, pro se.
    James E. Carlson, Dist. Atty., Wellsboro, for the Com., appellee.
    Before MONTEMURO, KELLY and HOFFMAN, JJ.
   KELLY, Judge:

In this Opinion, we are called upon to determine whether appellant’s conduct constituted harassment when he, with the reasonable belief that his water services were going to be terminated, threatened legal action against excavators working on a water line adjacent to his property as well as against two of the three trustees of the Water Association. We find that the Commonwealth failed to prove beyond a reasonable doubt that (1) appellant acted with the intent to harass, annoy or alarm and (2) appellant’s conduct served no legitimate purpose. See 18 Pa.C.S.A. § 2709(3). Hence, we vacate the judgment of sentence and discharge appellant.

The facts and procedural history may be summarized as follows. Appellant, Kenneth H. Wheaton, is a homeowner who receives his water supply from the Potter Brook Water Association [“Water Association”], an unincorporated association. Appellant and the Water Association were disputing over an unpaid bill of $50.00. Appellant did not pay the bill because he believed that it was not for repairs but for the installation of a water tank, which appellant strongly opposed.

On April 20, 1989, appellant approached Mr. David Cady, Sr., who was locating a water line on the property adjacent to appellant’s property. Appellant threatened to have Mr. Cady arrested if he touched appellant’s water line. Appellant spoke with Mr. Cady for ten to fifteen minutes and then left. Mr. Cady continued to work and completed his job. On April 22, 1989, Mr. Michael Ackley was excavating the water line at the same spot. Appellant approached Mr. Ackley and informed him that he would be sued if he touched appellant’s line. Appellant continued talking for five minutes and then returned home. Twenty minutes later, Mr. Ackley left to avoid any possible conflict.

Appellant also contacted two Water Association trustees with respect to his water service. On or about April 20, 1989, appellant went to Mr. Clifford Tubbs’ barber shop and told Mr. Tubbs that he would be sued if the Water Association shut off appellant’s water. Mr. Tubbs was one of the three trustees of the Water Association, and his barber shop served as a meeting place for the Water Association. Appellant remained at the barber shop for three minutes. There were customers in the barber shop who overheard appellant’s statements. Mr. Tubbs claimed one of these customers has never returned. On two occasions, appellant also visited the home of Mr. John Bingman, another trustee. Both times appellant was invited into Mr. Bingman’s home. Appellant stated that he hoped Mr. Bingman was prepared for what may happen. Although appellant was not more specific, Mr. Bingman knew that appellant was discussing the termination of his water service. This disturbed both Mr. and Mrs. Bingman.

Appellant was initially found guilty of harassment by the district court. On de novo appeal to the Court of Common Pleas of Tioga County, appellant was again found guilty after a hearing before the Honorable Robert M. Kemp, P.J. Appellant’s post-trial motions were denied without a hearing on January 8, 1991, and appellant filed an appeal pro se to this Court.

I. SHOULD THE TRIAL JUDGE HAVE HELD A HEARING ON APPELLANT’S REQUEST FOR RECUSAL AND ON HIS POST-TRIAL MOTIONS AND SHOULD THE LOWER COURT HAVE GRANTED APPELLANT’S POST-TRIAL MOTIONS?
II. SHOULD THE TRIAL JUDGE HAVE IMPOSED A GREATER SENTENCE THAN THE DISTRICT JUSTICE AND SHOULD CONDITIONS OF PROBATION BE GIVEN?

Appellant’s Brief at 7.

Appellant contends that the Commonwealth has failed to adduce sufficient evidence that he committed the offense of harassment. Appellant asserts that the Commonwealth failed to prove beyond a reasonable doubt that (1) appellant possessed the necessary intent to harass, annoy or alarm and (2) appellant’s conduct served no legitimate purpose. For the reason which follows, we agree.

Initially, we note that in reviewing claims to the sufficiency of the evidence to support a conviction, this Court must view all the evidence in the light most favorable to the Commonwealth. Commonwealth v. Pearsall, 368 Pa.Super. 327, 329, 534 A.2d 106, 107 (1987). The Commonwealth is entitled to all favorable inferences which may be drawn from the evidence. Id.

The offense of harassment is defined by 18 Pa.C.S.A. § 2709 which provides that:

A person commits a summary offense when, with intent to harass, annoy or alarm another person:
(1) he strikes, shoves, kicks or otherwise subjects him to physical contact, or attempts or threatens to do the same; or
(2) he follows a person in or about a public place or places; or
(3) he engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.

18 Pa.C.S.A. § 2709. Specifically, section 2709(3) requires that one (1) with intent to harass, annoy or alarm another person (2) engages in a course of conduct or repeatedly commits acts (3) which alarm or seriously annoy such other person and (4) which serves no legitimate purpose. While the term “legitimate purpose” has not been clearly defined, the comments to the Model Penal Code state that “[t]he import of the phrase, however, is broadly to exclude from this subsection any conduct that directly furthers some legitimate desire or objective of the actor. This element of the residual offense should limit its application to unarguably reprehensible instances of intentional imposition on another.” Model Penal Code, section 250.4, comment 5, p. 368 (1980 edition).

In a prior case, this Court held that filing a series of formal complaints and making phone calls during business hours with government agencies did not constitute harassment. Commonwealth v. Bender, 248 Pa.Super. 504, 375 A.2d 354 (1977). In Bender, appellant filed numerous complaints against two police officers because he believed they had mishandled his gun permit application. The Court held that given the “attendant circumstances and the ostensibly lawful and constitutionally protected nature of appellant’s acts, the trier of fact could only speculate that appellant intended to harass the two police officers and that his conduct served no legitimate purpose. Commonwealth v. Bender, supra, 375 A.2d at 359 (footnotes added).

Instantly, appellant believed, not completely without merit, that the Water Association was terminating his water service. Unlike the government agencies in Bender, the Water Association has no permanent office. Its governance consists of three trustees. In addressing his concerns, appellant visited two trustees and informed them that they would be sued if appellant’s water was turned off. Additionally, appellant threatened to sue Mr. Cady and Mr. Ackley who were exposing and excavating a water line near appellant’s home. All of these people had some control over whether or not appellant’s water service would be terminated. Certainly, appellant’s interest and efforts in maintaining the basic services to his home are a legitimate purpose.

Additionally, the Commonwealth had the burden to prove appellant had the intent to harass, annoy or alarm. Anything less than a showing of intent is insufficient. Commonwealth v. Showalter, 275 Pa.Super. 1, 4, 418 A.2d 580, 582 (1980). As in Bender, we should be cautious in making our finding that a criminal intent can be inferred from making complaints.

The evidence supports the assertion that appellant’s intention was to prevent the Water Association from turning off his water. Appellant threatened legal action against two men who were digging up the water line near appellant’s home. Appellant threatened to have Mr. Cady arrested if he touched appellant’s water line. N.T. 10/24/89 at 19. Appellant later approached Mr. Ackley and “want[ed] to know if [he] had good insurance because if [he] touched appellant’s line, that [appellant] was going to sue [him].” Id. at 22. He also threatened to sue two of the three trustees of the Water Association. Appellant told Mr. Tubbs that “if you proceed to listen to this man, you are all going to be sued,” Id. at 24, and told Mr. Bingman, “I hope you’re prepared for what may happen.” Id. at 30. Appellant’s comments were made to retain his water service without having the specific intent to harass. Although appellant may have been negligent or irresponsible with respect to the effect of his conduct, this is insufficient. We add that while we find appellant’s behavior does not constitute harassment, we do not condone his outbursts.

Therefore, reviewing the evidence in the light most favorable to the Commonwealth, we find the evidence was insufficient to convict appellant for harassment. Accordingly, we vacate the judgment of sentence and discharge appellant.

      . Appellant’s first issue generally opposed the trial court’s denial of post-trial motions. One of appellant’s post-trial motions specifically challenged the sufficiency of the evidence. We note that while appellant’s statement of questions involved does not adhere in strict compliance with Pa.R.A.P. 2116(a), the sufficiency question has been raised in and answered by the trial court and adequately addressed in appellant's brief. In light of appellant’s pro se representation, this Court declines to impose the penalties listed for non-compliance in Pa.R.A.P. 2101 and will reach the merits.

      . A review of the record reveals that the complaint also stated appellant violated 18 Pa.C.S.A. § 2709(1). Because the Commonwealth produced no evidence of physical force, attempted or threatened, this section is inapplicable as a basis for the harassment conviction.

      . A trial court has tried to define the extent of "legitimate communication" for the harassment by communication statute, 18 Pa.C.S.A. § 5504. Commonwealth v. Bare, 1 D. & C.4th 480 (1988). They defined "legitimate communication” as “communication that is justified in the sense that its purpose conforms to recognized and accepted standards of good conduct and decency and in that sense is otherwise lawful.” Id. at 483. However, even this “plainly excludes many calls that are intended to annoy the victim and have precisely that effect."
        Id. quoting Model Penal Code, section 250.4, comment 2, p. 362 (1980 edition).

      . The Model Penal Code § 250.4, HARASSMENT provides:
      A person commits a petty misdemeanor if, with purpose to harass another, he:
      (1) makes a telephone call without purpose of legitimate communication; or
      (2) insults, taunts or challenges another in a manner likely to provoke violent or disorderly response; or
      (3) makes repeated communications anonymously or at extremely inconvenient hours, or in offensively coarse language; or
      (4) subjects another to an offensive touching; or
      (5) engages in any other course of alarming conduct serving no legitimate purpose of the actor.

      . Appellant believed that the officers had invented a theft charge because they didn’t like his attitude.

      . Appellant’s action is ostensibly protected by both the United States and Pennsylvania Constitutions which guarantee citizens the right to petition the government for redress of grievances and to speak freely. See Commonwealth v. Bender, supra, 375 A.2d at 359.

      . The following are examples of conduct held to constitute harassment under 18 Pa.C.S.A. § 2709(3): Commonwealth v. Tedesco, 379 Pa.Super. 567, 550 A.2d 796 (1988) (repeated incidents of racial and ethnic slurs directed at victim); Commonwealth v. Evans, 299 Pa.Super. 529, 445 A.2d 1255 (1982) (following victim and addressing obscene notes, letters, and words over an intercom to victim); Commonwealth v. Duncan, 239 Pa.Super. 539, 363 A.2d 803 (1976) (plurality) (waking a co-ed napping in a dormitory lounge with continued entreaties for cunnilingus). The comments to the Model Penal Code cite as examples: “burning a cross on the lawn of a black family, ... leaving animal carcasses on a neighbor’s stoop, or ... shining a spotlight into a parked car in order to embarrass or frighten the occupants thereof.” Model Penal Code, section 250.4, comment 5, p. 368 (1980 edition).

      . Appellant's water supply could be terminated if the Water Association installed a shut off valve on the water line which was in the ground of the property, adjacent to appellant’s property, on which Mr. Cady and Mr. Ackley were working. N.T. 10/24/89 at 23 and 24. Testimony revealed that the Water Association planned to install such a valve as well as repair a water leak when it employed Mr. Cady and Mr. Ackley to excavate the Kolesar property. Id. at 21, 23 and 24.

      . Appellant should attempt to voice his complaints with the Water Association in a more amicable, and hopefully more effective, manner, such as filing a formal complaint with the Water Association for an explanation of any disputes he may have concerning his bill.

      . Due to our disposition, appellant’s remaining issues will not be addressed.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    598 A.2d 1021
    Mark CHIAVERINI v. SEWICKLEY VALLEY HOSPITAL, Appellant. Mark CHIAVERINI, Appellant, v. SEWICKLEY VALLEY HOSPITAL.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1991.
    Filed Nov. 7, 1991.

      Gayle L. Godfrey, Pittsburgh, for Sewickley Valley Hosp.
    Edward B. Friedman, Pittsburgh, for Chiaverini.

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

These cross-appeals are from an order dated February 27, 1991, granting plaintiffs motion for a new trial following an inconsistent jury verdict. In the appeal docketed at No. 585 Pittsburgh 1991, Sewickley Valley Hospital (“SVH”), the defendant in this medical malpractice action, contends that (1) the trial court abused its discretion by granting a new trial; and (2) the new trial, if upheld, should be limited to the issue of liability. In the cross-appeal, docketed at No. 623 Pittsburgh 1991, the cross-appellant (“plaintiff”) contends that the new trial was properly granted, and advances six assignments of error relating to the trial court’s evidentiary rulings. For the following reasons, we affirm the order granting a new trial on both the issues of liability and damages.

Plaintiff brought a medical malpractice action against SVH, alleging that hospital staff negligently catheterized plaintiff. A jury trial was conducted on September 12-21, 1990, in the Court of Common Pleas of Allegheny County. After the jury was charged and had deliberated, they returned the following answers to interrogatories:

1. Do you find that the Defendant was negligent?
Answer: Yes.
2. Was the Defendant’s negligence a substantial factor in bringing about the Plaintiff’s harm?
Answer: No.
3. State the amount of damages, if any, sustained by the Plaintiff as a result of the occurrence.
Answer: $50,000.

N.T., September 21, 1990, at 1201-02. After denying plaintiff’s request to recharge the jury, the trial court molded the verdict to reflect zero damages. Plaintiff filed timely post-trial motions, in which he alleged numerous assignments of error. On February 27, 1991, the court granted plaintiffs motion for a new trial generally, based only on the first assignment of error, that the court erred in molding the verdict. This timely appeal and cross-appeal followed.

On appeal, SVH contends that the trial court was correct in molding the verdict, and thus, erroneously reversed itself by granting plaintiffs motion for a new trial. Specifically, SVH argues that the interrogatory answers merely reflect a finding that the plaintiff sustained damages, but that SVH’s negligence was not a substantial factor in causing those damages. Thus, appellant argues that the verdict was not inconsistent so as to necessitate a new trial. We disagree.

It is well-settled that the decision whether to grant a new trial is within the sound discretion of the trial court, and that court’s decision will be overturned on review only if we determine that the court committed a clear abuse of discretion or error of law. Spang & Co. v. U.S. Steel Corp., 519 Pa. 14, 24, 545 A.2d 861, 865 (1988) (citation omitted); Thompson v. City of Philadelphia, 507 Pa. 592, 599-600, 493 A.2d 669, 673 (1985). Although there is a presumption of consistency with respect to a jury’s findings, Giovanetti v. Johns-Manville Corp., 372 Pa.Super. 431, 440, 539 A.2d 871, 875 (1988) (citation omitted), “the verdict to be molded must manifest a clear intent on the part of the jury. Where the intention of the jury is far from obvious, the verdict should be returned to the jury for further deliberations or a new trial should be granted.” Krock v. Chroust, 330 Pa.Super. 108, 116, 478 A.2d 1376, 1380-81 (1984) (citation omitted). See also Palmer v. Foss Motors, Inc., 458 Pa. 535, 542, 327 A.2d 80, 83-84 (1974) (although strict form not required in verdicts, jury’s intention must be free of ambiguity and clearly understood); Rusidoff v. Debolt Transfer, Inc., 251 Pa.Super. 208, 212, 380 A.2d 451, 453 (1977) (if verdict shows confusion and lack of understanding of issues, new trial may be granted) (citing Keeler v. Bair, 407 Pa. 335, 180 A.2d 914 (1962)).

In the instant case, SVH argues that because “[q]uestion three has no bearing on the liability aspect of the case ... the jury’s finding set forth in Interrogatory answer number two makes the damage answer in number three mere surplusage.” Appellant’s Brief at 11. However, our Supreme Court rejected a similar argument in Ferrick Excavating v. Senger Trucking, 506 Pa. 181, 484 A.2d 744 (1984). In Ferrick, the jury found that (1) the defendant was negligent; (2) the defendant’s negligence was the proximate cause of the plaintiff’s damages; (3) the plaintiff was contributorily negligent; (4) the plaintiff’s contributory negligence was not the proximate cause to plaintiff’s injuries; and (5) eighty-percent of negligence was attributable to the defendant, and twenty-percent to the plaintiff. The Ferrick court refused to hold that because all questions of negligence and causation were answered, answers four and five were irrelevant. Rather, the court stated, “[questions 4 and 5 do exist, and unless they are to be regarded as mere surplusage, they set up an irreconcilable inconsistency between the finding in 4 that Ferrick’s negligence was not a proximate cause of the injury and the finding in 5 that Ferrick’s proximate negligence was 20%.” Ferrick, supra, 506 Pa. at 187, 484 A.2d at 747. The court observed that a reading of all five answers together resulted in the defendant having to pay both one-hundred-percent and eighty-percent of the damages. The court concluded that although normally, such an inconsistency would require a new trial, remittitur was properly granted in that case. Id.

Similarly, in the instant case, an attempt to reconcile the three jury findings results in SVH being liable, simultaneously, for no damages, due to the finding that its negligence was not a substantial factor, and for $50,000, because the jury so found in question three. In other words, the three answers cannot be reconciled to permit a molding of the verdict. Rather, we must follow Ferrick in holding that answer three is not mere surplusage simply because answers one and two address questions of negligence and causation.

Moreover, the three answers indicate that the jury did not understand the jury charge. The court instructed the jury, “[i]f you find the defendant is not negligent or that his negligence was not a substantial factor in bringing about harm to the plaintiff, your verdict must be for the defendant.” N.T., September 21, 1990, at 1200. The court also specifically charged the jury as to the elements of negligence, proximate cause and damages. See September 21, 1990, at 1174-75, 1186-90. If the jury understood the charge, it is unlikely that they would have answered the three questions as they did.

Hence, we are unpersuaded by SVH’s assertion that the jury’s findings as to negligence and proximate cause should control to the exclusion of their finding with respect to damages. Rather, the award of damages is at odds with the finding of no causation between defendant’s negligence and plaintiffs injury. “If the trial judge must assume facts which cannot be discerned from the verdict, then the verdict should not be molded.” Krock, supra, 330 Pa.Super. at 116, 478 A.2d at 1381 (citation omitted). Here, as the trial court aptly observed, “one is reduced to speculation as to why, in disregard of the charge, the jury awarded damages.” Opinion, Ross, J., at 7. Thus, the trial court did not abuse its discretion by granting a new trial.

SVH next contends that if a new trial is conducted, it should be limited to the issue of liability. Specifically, SVH argues that the new trial should leave undisturbed the jury’s determination as to damages. We cannot agree.

The trial court’s decision whether to limit a new" trial to a particular issue or grant a new trial as to all issues will not be reversed absent an abuse of discretion. Cf. Rhodes v. Hollender, 260 Pa.Super. 290, 293, 393 A.2d 1268, 1269-70 (1978) (trial court abused its discretion by limiting new trial to damage issue). Moreover, “the power to grant a limited new trial should be cautiously exercised.” Troncatti v, Smereczniak, 428 Pa. 7, 9, 235 A.2d 345, 346 (1967) (citation omitted).

The parties have not cited, and our research has failed to uncover, any case in which a court has determined whether a new trial should be limited to the liability issue. However, in examining whether the trial court properly limited a new trial to the issue of damages, our Supreme Court set forth the following standard:

new trials may be limited to specific issues only when this procedure will be fair to both parties____ [A] lower court may grant a new trial, limited to the issue of damages, only where (1) the question of liability is not intertwined with the question of damages, and (2) the issue of liability is either (a) not contested or (b) has been fairly determined so that no substantial complaint can be made with respect thereto.

Gagliano v. Ditzler, 437 Pa. 230, 232-33, 263 A.2d 319, 320 (1970) (emphasis in original) (citations omitted). Thus, it is conceivable that a new trial could be limited to the issue of liability. By analogy, however, a new trial could only be limited to the issue of liability if the issues of liability and damages were separable, and if the issue of damages was either uncontested or had been fairly determined.

In the instant case, an irreconcilable verdict was the basis on which a new trial was granted. Because the liability finding directly conflicted with the damage determination, we cannot, as SVH urges, conclude that “the issue of damages has been fairly determined and is readily separable from the issue of liability.” Appellant’s Brief at 19. On the contrary, it is particularly because we do not know which determination, the liability finding or the damage finding, is the one to which we should give effect, that the verdict necessitates a new trial on both issues. Accordingly, the trial court did not abuse its discretion in granting a new trial on both issues.

For the foregoing reasons, the order of the trial court granting a complete new trial is affirmed.

Order affirmed.

      . An order awarding a new trial is an appealable order. Palmer v. Foss Motors, Inc., 458 Pa. 535, 538, 327 A.2d 80, 82 (1974).

      . We note that both cases on which SVH relies are distinguishable. In Goldmas v. Acme Markets, Inc., 393 Pa.Super. 245, 574 A.2d 100 (1990), this court held that it was not an abuse of discretion for the trial court to deny a motion for a new trial because the presumption of consistency of the jury verdict applied. In Goldmas, it was clearly discernible from the jury’s consistent answers as to the plaintiff's contributory negligence that the jury did not intend to attribute any negligence to the plaintiff, despite its attributing only 75% causal negligence to the defendant. Because there was no doubt that the jury found the defendant negligent and the plaintiff not contributorily negligent, the Goldmas court was able to hold that the percentage answer was mere surplusage. In contrast, in the instant case, it was not possible to determine whether the jury intended to find SVH liable. Thus, question three cannot be held to be mere surplusage.
      Likewise, in Goertel v. Muth, 331 Pa.Super. 179, 480 A.2d 303 (1984), this court held that a new trial was not warranted because the jury’s intent was clear from the verdict slip. In Goertel, the court instructed the jury that under the Comparative Negligence Act, if the jury found the plaintiff more negligent than the defendant, then the plaintiff could not recover. Thus, although the interrogatory answer attributing ten-percent negligence to the defendant appeared to conflict with the answer finding that defendant's negligence was not a substantial factor, the court concluded that because of the comparative negligence instruction, it was clear that the jury intended to give the verdict to the defendant. By contrast, in the instant case, it is not clear to whom the jury intended to give the verdict.

      . Because we affirm the order granting a new trial, it is not necessary for us to consider plaintiffs other contentions as to the allegedly erroneous evidentiary rulings in the now-nullified trial.


author: DEL SOLE, Judge:

text:
    598 A.2d 1024
    MEADOW RUN AND MOUNTAIN LAKE PARK ASSOCIATION, Appellee, v. Elmer BERKEL and Helen Berkel, Appellants.
    Superior Court of Pennsylvania.
    Argued Aug. 29, 1991.
    Filed Nov. 7, 1991.

      Robert J. Kunec, Wilkes-Barre, for appellants.
    Arthur L. Piccone, Wilkes-Barre, for appellee.
    Before DEL SOLE, TAMILIA and HOFFMAN, JJ.
   DEL SOLE, Judge:

This is an appeal from a judgment entered after Appellant’s motion for post trial relief was denied. Appellant contends that the trial court erred in finding that Appellee, Meadow Run and Mountain Lake Park Association, has the authority to assess the Appellants for the maintenance of the development’s roads, dams and other common facilities. For the reasons set forth, we affirm.

The relevant facts are as follows. Appellants are lot owners in the development known as Meadow Run and Mountain Lake Park. Appellee is an association of the lot owners in this development. In 1982, Appellee acquired ownership of the lakes, dams, roads, and other common areas in the development. From 1982 to 1984, Appellee relied upon the voluntary contributions of the lot owners for the maintenance expenses of the common areas. However on June 17, 1984, Appellee passed a resolution assessing each lot owner $300.00 for the repair of dams and roads owned by Appellee and used by all lot owners in the development. Although Appellants had, prior to 1984, voluntarily paid dues to Appellee, they ceased their payments upon Appellee’s institution of the $300.00 annual assessment.

Appellant’s sole issue for review is whether the trial court erred in finding that Appellee has the authority to impose assessments for repairs, maintenance and improvement of the development’s common areas, absent a specific covenant in the owner’s deeds which permits such dues. We begin by noting that this is a case of first impression in the appellate courts of the Commonwealth of Pennsylvania. However, a number of states have specifically addressed this issue and we find the rationale and result of these cases applicable in the instant case.

Residential communities such as Meadow Run and Mountain Lake Park, are “analogous to mini-governments” and as such are dependent on the collection of assessments to maintain and provide essential and recreational facilities. Holiday Pocono Civic Association, Inc. v. Benick, 7 D. & C.3d 378 (1978). When ownership of property within a residential community allows the owners to utilize roads and other common areas of the development, there is an impled agreement to accept the proportionate costs for maintaining and repairing these facilities. Sea Gate Association v. Fleischer, 211 N.Y.S.2d 767 (1960).

The right of the Association to exercise the control of the easements and to maintain them in condition so that they can be mutually used and enjoyed by all property owners has long been settled by the courts. Inherent in its right of management is the right to maintain. Maintenance costs money. Those who are entitled to enjoy the easements are the ones who must pay the costs of maintenance ...

Id. at 778-779.

Appellant contends that Appellee is without authority to require payment of any assessment because there is no specifically expressed deed covenant authorizing such assessment. However this argument was rejected in an analogous case, Island Improvement Association of Upper Greenwood Lake v. Ford, 155 N.J.Super. 571, 383 A.2d 133 (1978). In Ford, title to the roads in a privately developed residential area was in a private association. The association was the grantor of the deeds to the individual purchasers. An express easement to use the roads was given to each property owner, and none of the deeds to the individual owners imposed a duty upon the owners to pay for the maintenance of the roads. Id. The Ford court held that these individual owners of the residential property who were granted use of the roads in the development were obligated to contribute to the repair and maintenance of the roads, despite the fact that none of the deeds to any of the owners imposed a contractual obligation on the owners for such maintenance or repair.

While it is true that in the instant case the deed does not explicitly spell out the exact obligation of the lot owners with regard to payment of dues for maintenance and repairs, the deed is not wholly silent as to the matter either. This is not a case where the property owners had no notice that an association of owners would be formed or that the association might formulate rules applicable to the owners. The following deed covenant is applicable to all property owners and reads as follows:

In the event of the formation or incorporation of an association of the lot owners on above mentioned plot of Mountain and Meadow Run Lakes, the occupants of the above described premises shall be bound by such rules and regulations concerning the use of Mountain and Meadow Run Lakes as to boating, bathing, ice skating and fishing, as may be duly formulated and adopted by such association or incorporation.

This deed, while making no mention of an assessment, does put Appellants on notice that should an association of lot owners be formed in the future, they would be bound by any rules the association adopted concerning usage of development facilities. Implied in the existence of rules and regulations concerning usage of the facilities is the necessity for rules and regulations concerning maintenance of these facilities. Sea Gate, at 778-779. The Ford court held this to be true when a deed addressed only the right to use the development’s facilities. Here, each property owner’s deed notified them that not only did they have the right to use the facilities, but that they would be bound by any rules regarding this right. The Ford rationale is therefore applicable in this case.

The position we adopt today is also in keeping with general Pennsylvania property law concerning easements.

As a general rule, where an easement is used and enjoyed for the benefit of a dominant estate, it is the owner of the dominant estate who is under obligation to keep the easement in good repair ...

Mscisz v. Russell, 338 Pa.Super. 38, 40, 487 A.2d 839, 840 (1984), citing Reed v. Allegheny County, 330 Pa. 300, 303, 199 A. 187, 189 (1938). Appellants, as the beneficial users of the common areas of the development, are responsible for the cost of maintenance of such facilities. Therefore, we hold that absent an express agreement prohibiting assessments, when an association of property owners in a private development is referred to in the chain of title and has the authority to regulate each property owner’s use of common facilities, inherent in that authority is the ability to impose reasonable assessments on the property owners to fund the maintenance of those facilities. We therefore affirm the trial court.

Judgment affirmed.


author: BECK, Judge:

text:
    598 A.2d 1027
    Marilyn BATTUELLO and Paul Battuello, Individually and as Co-Administrators of the Estate of Brett Battuello, Deceased, Appellants, v. CAMELBACK SKI CORPORATION, d/b/a Camelback in the Poconos.
    Superior Court of Pennsylvania.
    Argued May 22, 1991.
    Filed Nov. 7, 1991.

      James D. Golkow, Philadelphia, for appellants.
    Hugh M. Emory, Paoli, for appellee.
    Before WIEAND, BECK and HUDOCK, JJ.
   BECK, Judge:

This is an appeal from an order granting preliminary objections alleging improper venue and transferring this action from Philadelphia County to Monroe County. We affirm.

Venue in an action against a corporation is governed by Pennsylvania Rule of Civil Procedure 2179, which states:

(a) Except as otherwise provided by an Act of Assembly or by subdivision (b) of this rule, a personal action against a corporation or similar entity may be brought in and only in
(1) the county where its registered office or principal place of business is located;
(2) a county where it regularly conducts business;
(3) the county where the cause of action arose; or
(4) a county where a transaction or occurrence took place out of which the cause of action arose.

The venue dispute in this case revolves around the proper construction of subsection (a)(2) of this rule and arises from the following scenario.

In 1988, Brett Battuello, son of appellants, Marilyn and Paul Battuello, was killed while skiing at a ski area in Monroe County that is owned and operated by appellee, Camelback Ski Corporation. The Battuellos sued Camel-back, both individually and as co-administrators of their son’s estate, in the Court of Common Pleas for Philadelphia County. Camelback filed preliminary objections alleging that venue was not properly in Philadelphia County in that none of the criterion set forth in Rule 2179 are met in this case. Camelback asserted that it is a Pennsylvania corporation which operates a ski area located in Tannersville, Monroe. County, which does not have an office or any employees in Philadelphia, and which does not regularly conduct business in Philadelphia. Appellants argued that venue was proper, relying exclusively on subsection (a)(2) of Rule 2179. They contended that Camelback regularly conducts business in Philadelphia and cited the following in support of this contention:

1. Philadelphia residents ski at Camelback.
2. Eastern Ski Tours, a travel tour company based in Philadelphia, regularly sends its customers to Camel-back to ski.
3. Camelback sends promotional brochures to Eastern and provides Eastern with quotes of Camelback prices.
4. Camelback sends promotional brochures to Philadelphia residents who request them.
5. Camelback belongs to an organization called the Pocono Mountains Vacation Bureau which promotes the Poconos, including Camelback, as a vacation resort area and engages in such promotional activity in Philadelphia as well as other areas.
6. At various times in the period from 1982 to 1984, Camelback advertised in a Philadelphia ski publication and in the Philadelphia Inquirer.
7. Camelback has an “800” number available for use in Philadelphia.

The trial court rejected appellants’ arguments, finding that mere advertisement in Philadelphia by Camelback and its tenuous relationship with Eastern were insufficient grounds for finding that Camelback regularly conducted business in Philadelphia. Therefore, the trial court granted Camelback’s preliminary objections and transferred the action to Monroe County.

On review of a trial court decision regarding venue, we will reverse only for an abuse of discretion. Purcell v. Bryn Mawr Hospital, 525 Pa. 237, 579 A.2d 1282 (1990). The determination depends on the individual facts of each case and will not be disturbed if the trial court’s decision is a reasonable one in view of those facts. Monaco v. Montgomery Cab Co., 417 Pa. 135, 208 A.2d 252 (1965).

We find no error in the trial court’s assessment of the evidence pertinent to venue in this case or in its decision to transfer the action to Monroe County. In determining whether venue in an action against a corporation is proper on the ground that the corporate defendant regularly conducts business in the county in which it has been sued, we must focus on the nature of the acts the corporate defendant allegedly performs in that county. The business contacts of the corporate defendant with that county must be assessed both as to their quantity and their quality. As the Supreme Court has recently described the proper analysis:

“A single act is not enough,” while “each case must depend on its own facts.” “Quality of act” means “those directly, furthering or essential to, corporate objects; they do not include incidental acts.” Quantity means those acts which are “so continuous and sufficient to be general or habitual.” In combined form ... the acts of the corporation must be distinguished: those in “aid of a main purpose” are collateral and incidental, while “those necessary to its existence” are “direct.”

Purcell, 525 Pa. at 244, 579 A.2d at 1285 (citations omitted) (quoting Shambe v. Delaware and Hudson Railroad Company, 288 Pa. 240, 135 A. 755 (1927)). In further refinement of these principles, the Supreme Court has stated that the mere solicitation of business within a certain county does not render venue there appropriate. Id. at 247, 579 A.2d at 1287.

Applying these principles to this case, the proper disposition is clear. First, in examining the “quality” of Camelback’s acts in Philadelphia County, we see that they consist almost exclusively of advertisement, aimed at the solicitation of business. Of the eight alleged business contacts by Camelback in Philadelphia that appellants rely on, six of them are pure advertisement and promotional activity. These are not enough to sustain venue in Philadelphia under the clear mandate of Purcell. Even aside from the inadequate quality of these acts, we note that Camelback’s solicitation of business in Philadelphia is sporadic. They have not directly advertised in the media there in years and their distribution of brochures there is sporadic. Thus, the quantity of these acts is equally insufficient.

As to the two other grounds for venue asserted by appellants, i.e., the fact that a Philadelphia tour company regularly sends its customers to Camelback and the fact that Philadelphia residents ski at Camelback, we equally find that these assertions are insufficient to support venue in Philadelphia. Although certain Philadelphia residents are season pass holders at Camelback, the evidence of record reveals that these passes are not issued in Philadelphia, but rather at Camelback itself, and the number of Philadelphia season pass holders is extremely small in relation to the total number of season passes sold.

As to Camelback’s relationship with Eastern Tours, we must agree with the trial court’s characterization of that relationship as “tenuous.” First, we note that the relationship is not in any sense a formal one. Camelback and Eastern have not been parties to a written contractual arrangement since 1983. Moreover, since Camelback does not operate a hotel or provide any type of lodging, Eastern does not actually “book” travellers with Camelback. Rather, Eastern independently arranges ski tours to the Poconos and makes reservations for its customers to stay at any one of a number of hotels in the Poconos. Eastern also suggests to these travellers that Camelback is one ski area, among others, that they might wish to patronize. Some of these customers will ski at Camelback, purchasing their ski passes at Camelback (in Monroe County) when they arrive there, and others will not. The trial court determined, with adequate support in the record, that only five percent of Eastern’s customers are from Philadelphia and some of these may not end up skiing at Camelback. The record also reveals that less than one percent of Camelback’s business consists of skiers sent by Eastern.

Under these facts, it is clear that Camelback’s dealings with Eastern do not even approach the regular conduct of business in Philadelphia that Rule 2179 requires. The quality of Camelback’s actions in sending brochures to Eastern and quoting them prices can by no stretch of the imagination be considered anything more than solicitation. The actual sale of passes and provision of services to those persons participating in Eastern tours occurs at Camelback itself, not in Philadelphia. Moreover, the percentage of business generated for Camelback by Eastern is far too small to qualify as “general or habitual”. Thus, the quantity requirement is similarly not met.

The order of the trial court is affirmed.

      . The trial court’s order is immediately appealable as of right under Pa.R.A.P. 311(c).

      . Appellants argue at great length that Camelback’s business is somehow peculiarly dependent on the solicitation of business in Philadelphia and, therefore, that we should deem Camelback’s solicitation of business there to be enough to constitute the regular conduct of business. We disagree. There is nothing in this record to show that Camelback’s sporadic solicitation of business in Philadelphia was at all essential to its business. In fact, the great majority of Camelback's skiers come from New Jersey and New York. While solicitation of business in Philadelphia may well be "in aid of a main purpose” of Camelback's business, i.e., obtaining skiing customers, it is not essential and necessary to its business. See Purcell, supra. As the Supreme Court pointed out in Shambe v. Delaware & Hudson Railroad Co., 288 Pa. 240, 248, 135 A. 755, 759 (1927), while solicitation of business may well further the interests of the corporation, it in itself does not constitute “doing business.” It is the latter that is essential to the corporation’s existence, not the former.

      . Occasionally, an Eastern Tours customer will not pay for his Camel-back ski pass at Camelback. In these situations, Eastern will collect the amount due from the customer and forward a check for that amount to Camelback from Philadelphia. We do not find this fact, which appellants stress, at all indicative of a regular course of business by Camelback in Philadelphia.


author: Porter, J.,

text:
    Savings Deposit Bank v. Reynier, Appellant.

      Carriers — Bill of lading — Negotiable bill — Evidence—Paper-books.
    On an appeal where the issue in the court below was as to the negotiability of a bill of lading, the appellate court will assume that it was negotiable, where the appellant fails to print the bill in the paper-book, and one of the witnesses testifies that the consignment was to the consignor’s own name, “notify” another, and that the person to be notified could not obtain title to the consignment until he lifted the draft accompanying the bill of lading.

      Conspiracy — Joint wrong — Parties—Pleading—Evidence—Judgment.
    Where a plaintiff declares against two or more persons averring a joint tort, he must prove a joint tort, and cannot recover upon evidence showing a tort by a single person, or several distinct torts by as many distinct persons.
    Where a joint tort is charged against several persons there cannot be a verdict against a single person.
    When three or more persons are charged as joint tort feasors, the plaintiff must prove a joint tort, that is, that two or more of the defendants have been guilty of the unlawful act charged, but his right to recover is not dependent upon his proving that all of the defendants are guilty; he may recover, if the evidence warrants it, against any two or more of the defendants, even although his proofs fail as to the others and the verdict is in favor of the latter.
    Argued April 16, 1909.
    Appeal, No. 125, April T., 1909, by defendants, from judgment of C. P. No. 4, Allegheny Co., No. 420, Fourth Term, 1907, on verdict for defendants in case of Savings Deposit Bank Company v. J. H. Reynier, Carl W. Wiley, J. J. Sweeney, J. J. Boyce and H. W. Joynes.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Trespass to recover the value of a carload of potatoes and hay.
    Cohen, J., charged as follows:
    As you have heard, this is a suit brought by the Savings Deposit Bank Company against Reynier and others to recover the value of certain potatoes and hay shipped by a man named O. J. Kean to Mr. Joynes, for which Kean received a bill of lading, which, you are advised by the testimony, he transferred to the plaintiff bank.
    Reynier and Wiley brought this attachment, and if you can find from the evidence that they knew or should have known, from circumstances in their possession, that the title to this property was not to have passed until the amount of the purchase money was paid, then the defendants are liable to the plaintiffs for the amount of 1191.79.
    I say to you as a matter of law, that the constable had no power and no authority, after he had attached these goods, to sell them, for the very act of assembly under which these proceedings were had before the alderman, says that the nonresident whose goods are attached here shall have thirty days within which to defend the judgment that has been rendered against him, and that a scire facias (that is, a new proceeding after the original proceeding) shall be issued and that the defendant, besides this remedy, may take an appeal to the court of common pleas. And there was an appeal taken in this case. So that, if the goods were sold in manner and form as indicated by the evidence I say to you they were sold without legal authority; that the requirements of the act of assembly had not yet been sufficiently complied with to justify such, a sale and. that if Mr. Joynes, who took possession of these goods and sold them, knew that Reynier and Wiley had issued this attachment — if he knew, and it is for you from all the evidence to say whether he did — if he knew that before possession passed that the goods had to be paid for; if he had received that notice, he had no legal right to sell those goods.
    As to Alderman Sweeney in this case. The moment the goods had been attached under and by virtue of his writ of attachment issued, he should have taken no further proceedings except by the issuing of a scire facias, as required by the act of assembly. Nevertheless, I am of opinion that what the alderman did he'did within his jurisdiction as an-aider-man, he did within the line of his duties confided to him by the plaintiffs in that suit, and that, therefore, having received no notice such as was required by the act of assembly of 1772 which has been cited to you, that therefore this action cannot be maintained as against Alderman Sweeney, but that you will consider the case as against all the other defendants and return a verdict, if you find that there was an illegal combination; that each one had done an illegal act and that they had done it conjointly for the purpose of committing a fraud against this bank, — if you find such to be the case, gentlemen, you may find a verdict as a matter of law against all the other defendants, naming them, except Alderman Sweeney.
    The constable had no right to sell these goods whatsoever in the way in which he sold them. If the goods were perishable — which fact is for you to determine from all the evidence — even though they were, he should have gone into the court of common pleas with a petition stating the case and asking permission to sell the goods. It was his duty to hold these goods for the period of time designated by the act of assembly. He did not do it. Therefore, gentlemen, if you find the facts to be as indicated by me against the other defendants you will render a verdict against them for the total proceeds of the sale of the potatoes and hay, less the charges, to wit, $191.
    If you-render a judgment against the defendants you must designate them. If you find in favor of the defendants you simply say you find in favor of the defendants.
    The case is with you.

      Upon request of counsel for defendants an exception was noted and bill sealed.
    The jury having asked for further instructions, the court delivered the following additional charge:
    Gentlemen of the jury: One of the defendants, being the alderman, Sweeney, is not liable in this case because, although he did not follow the legal requirements, nevertheless he cannot be held liable unless he received a notice before suit was brought against him under the act of assembly in 1772, therefore that defendant is out of the question.
    The other two defendants, who are the plaintiffs in the attachment proceedings before the alderman, Reynier and Wiley, are liable individually, because it appears from the evidence in this case that there is nothing recorded, as the law requires, showing that they are a corporation. Therefore, they are liable individually, these two men, if they had knowledge that O. J. Kean had no title, and if they had no such knowledge they are liable, inasmuch as the goods attached and sold, for which they received the proceeds, were not legally sold because no scire facias was issued and no time was given to the defendants in the writ to appear before the alderman and offer his defense. Therefore Reynier and Wiley are liable individually because they are not incorporated so far as we are concerned, if they had knowledge that this man in Ohio had no title, that he had already passed his title to the bank.. And further, if they had no such knowledge, I say to you, they are liable inasmuch as the goods attached and sold and for which they received the proceeds were not legally sold because no scire facias was issued. I will repeat this so you will understand it.
    The constable, Boyce, is liable. He had no right to sell these goods, under the provisions of the act of assembly on which this attachment is grounded. He had a right to keep them until the defendant had failed either to take an appeal or to enjoy the benefits given, to him under that act of assembly.
    As to Mr. Joynes: he is liable if he knew that the goods had been transferred from Kean to the bank. Not other' wise, because he did not enjoy the benefits of that sale. He had no right to sell the goods as a commission man and to take a commission for selling them, So that I have described the relation of each particular defendant in this case to the plaintiff; but if you should find further, from any evidence submitted to you, that there was a design or an undertaking or conspiracy between the whole lot of them to do that which the law prohibited, or to do a thing in an unlawful manner by which the plaintiff would have been injured, then, gentlemen, they are all liable, and even Mr. Sweeney, in that case, whom I have told you is not liable for reasons- given, would be liable if the whole gang of them, or rather, if all the defendants had agreed to co-operate together to do an ununlawful act to the injury of this plaintiff.
    Verdict and judgment against J. H. Reynier, Carl W. Wiley and J. J. Boyer for $202. Said defendant appealed.

      Errors assigned were in refusing instructions for defendants.

      W. J. O’Donnell, with him J. E. O’Donnell, for appellants.
    To recover damages in trespass caused by an alleged conspiracy between the defendants, the evidence of collusion need not be conclusive, but it must do more than merely raise a suspicion; it must lead to belief: Bank v. Tinker, 158 Pa. 17; Benford v. Sanner, 40 Pa. 9.
    Where a joint tort has been alleged, a joint tort must be proved in order to sustain the action. The allegation and the proof must agree in cases of tort as in other cases: Goodman v. Coal Township, 206 Pa. 621; Shaughnessy v. Pittsburg, 20 Pa. Superior Ct. 609.
    Where the declaration is for a joint tort and the case goes to the jury as against both defendants, if under such circumstances the evidence fails to show that defendants were joint tort leasors it is error to permit a recovery against one or both. Such a case would show not a mere misjoinder of parties but a misjoinder of causes of action: Dutton v. Borough of Lansdowne, 198 Pa. 563; Wiest v. Electric Traction Co., 200 Pa. 148; Minnich v. Lancaster, etc., Ry. Co., 203 Pa. 632; Sturzebecker v. Inland Traction Co., 211 Pa. 156.

      October 11, 1909:
    There could have been no recovery in this case against Alderman Sweeney for the reason that plaintiff failed to serve the alderman with notice to tender amends as provided by the Act of assembly, March 21, 1772, 1 Sm. L. 364: Magnussen v. Shortt, 200 Pa. 257; Ross v. Hudson, 6 Pa. Superior Ct. 552.

      G. W. Williams, with him N. S. Williams and Albert J. Edwards, for appellee,
    cited: Wiest v. Traction Co., 200 Pa. 148; Hart v. Allegheny County Light Co., 201 Pa. 234; Rowland v. Philadelphia, 202 Pa. 50; Goodman v. Coal Twp., 206 Pa. 621; McElroy v. Harnack, 213 Pa. 444.
   Opinion by

Porter, J.,

This was an action of trespass brought by the plaintiff bank against J. H. Reynier, Carl W. Wiley, J. J. Sweeney, J. J. Boyce and H. M. Joynes. Issue was joined and the case went to trial as to all the defendants named. There was a verdict in favor of the defendants J. J. Sweeney and H. M. Joynes, and in favor of the plaintiff and against the other three defendants named. Judgment having been entered upon that verdict, the three defendants against whom that judgment was entered took this appeal. The first specification of error refers to the refusal of the court to affirm a point requesting binding instructions in favor of the defendants, and the second specification of error relates to the refusal of the court to enter judgment in favor of these appellants non obstante veredicto.

The appellants argue, under the first specification, that there was not sufficient evidence to warrant the submission to the jury of the question of the ownership by the plaintiff of the property which was the subject of the trespass. The evidence disclosed that one O. J. Kean shipped a carload of goods to Pittsburg, consigned to himself “notify H. M. Joynes.” Kean made his own draft for the value of the goods upon H. M. Joynes, and by indorsement made the same payable to the plaintiff bank; he attached to said draft the bill of lading for the goods, which he also by indorsement assigned to the bank, and then sold the bill of lading and draft to the bank, for full value. This draft and bill of lading were offered in evidence, but these appellants have not printed them in their paper-book. We cannot convict the court below of error by arbitrarily assuming that the bill of lading was not negotiable, without having the instrument before us. Joynes, one of the defendants, testified that the car was consigned to O. J. Kean, “notify H. M. Joynes,” and that under the bill of lading the property belonged to the shipper until the draft was lifted; that he (Joynes) would have had to lift the draft before he was entitled to possession of the car. We must, from the manner in which the case is presented to us, assume that the bill of lading was negotiable and that the indorsement of it to the plaintiff bank passed the title in and right of possession to the goods.

The appellants have argued under the second specification of error that it was incumbent upon the court below to enter judgment in their favor, non obstante veredicto, for the reasons: (1) That the plaintiff in its statement alleged a joint illegal conspiracy, and failed to prove a joint conspiracy; and (2) under the law, where the declaration is for a joint tort, and the case goes to the jury against all defendants, there must be a recovery against all defendants and there cannot be a recovery against one or more. The statement of the plaintiff did charge a joint illegal conspiracy against all the defendants, but it charged, also, that all the defendants joined in certain specific unlawful acts, which resulted in depriving the plaintiff of its property. The evidence, if believed, was sufficient to sustain a finding as to these three appellants, that they had all actively participated in the specific unlawful acts charged in the statement, and that those unlawful acts resulted in depriving the plaintiff of its property. Proof of these unlawful acts, so charged in the statement, and that the necessary and natural result thereof was the loss by the plaintiff of its property was sufficient to sustain the action, without proving that the unlawful acts were the result of an agreement previously entered into between the defendants. The jury might reasonably be permitted to infer, from the proof that all the defendants had actually joined in the unlawful acts, that such joint action, which could only have one purpose, was the result of an agreement between the parties. When a plaintiff declares against two or more persons averring a joint tort, he must prove a joint tort, and cannot recover upon evidence showing a tort by a single person, or several distinct torts by as many distinct persons. Where a joint tort is charged against several persons there cannot be a verdict against a single person. When three or more persons are charged as joint tort feasors, the plaintiff must prove a joint tort, that is, that two or more of the defendants have been guilty of the unlawful act charged, but his right to recover is not dependent upon his proving that all of the defendants are guilty; he may recover, if the evidence warrants it, against any two or more of the defendants, even although his proofs fail as to the others and the verdict is in favor of the latter: Wiest v. Traction Company, 200 Pa. 148; Sturzebecker v. Inland Traction Company, 211 Pa. 156; McElroy v. Harnack, 213 Pa. 444. The assignments of error are overruled.

The judgment is affirmed.


author: Henderson, J.,

text:
    Arnold, Appellant, v. Cramer.

      Mines and mining — Coal—Sale of coal in place — Construction of instrument — Abandonment.
    1. The technical words “grant, bargain and sell" or their equivalent are not necessary to pass the title to coal in place if from language of the whole instrument the intention to sell is apparent.
    2. A lease or demise of all the coal in a tract of land with a right to mine and take away the same is a sale of the coal in place.
    3. Whether the instrument be called a lease or deed all of its provisions must be taken into consideration to ascertain the intent of the parties. If from that consideration the intention of the parties is found to have been to make a sale, their contract will be so interpreted. And where this intention is clear the construction of the instrument is not affected by the fact that compensation is stipulated for a fixed price per ton or at a gross sum for the whole price, nor that the compensation is called rent or royalty.
    4. Wdiere the consideration for the agreement is to be determined by the output of the mine the law implies a covenant on the part of the grantee that he will prosecute the work with reasonable diligence, so that the grantor may receive the compensation which was in view when the agreement was made. That the grantor did not protect himself by a requirement for a minimum production from the mine does not change the character of the instrument.
    5. Abandonment as to a perfect title can only be affirmed on a state of facts sufficient to raise an estoppel or where possession has been acquired and held under a claim of title by limitation.
    6. Abandonment is ordinarily a question of intention. There must be an intention to abandon as well as an actual abandonment of property, and where the character of the transaction depends on the intent of the party it is competent for him to testify what his intention was.
    Argued March 1, 1909.
    Appeal, No. 36,. March T., 1909, by plaintiffs, from decree of C. P. Wayne Co., June T., 1906, No. 2, dismissing bill in equity in case of Juliette Arnold et al. v. George W. Cramer et al.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Bill in equity to cancel a coal lease.
    The case was referred to H. Wilson, Esq., referee.
    From the record it appeared that the lease was in the following form:
    “ This Article of Agreement made and concluded this 7th day of June in the year of our Lord 1888, Witnesseth: that William N. Arnold, of South Canaan, Wayne County, Penna., of the one part doth by these presents let unto Walter M. Leek of Clifford Twp. Susq. County Penna. of the other part the following described premises: Namely all of his undivided one-half interest in and to all that parcel or parcels of land situate in the township of Clinton, County of Wayne and State of Penna. bounded by lands of D. and H. C. Co. Hillside C. and I. Co., the Eaton Lot &e., containing one hundred and thirty-three acres and ninety-two perches being the same lot or parcel of land which was conveyed by Mrs. S. I. Roberts and others by deed, to S. and Wm. N. Arnold, and recorded in Deed Book No. 24 page 223. From the 25th day of May A. D. 1888, for the term of Ninety-Nine years next ensuing, and from year to year thereafter. And the said Lessee doth hereby covenant and promise to pay to the said Lessor or his assigns the sum of twelve and one-half cents (12 1-2 cents) per ton on all coal mined and sold from said land of the grades coarser than that known as Buckwheat Coal and the said Lessee furthermore agrees to commence selling said coal within six months from the date hereof, and to mine and prepare all coal at his own proper cost and expense. The said Royalty to be due and payable at the termination of each three months for the amount mined and sold during said three months, allowing ten days grace for fixing amount and results. This lease expires when coal is exhausted. It is considered as a part of this agreement that the said Lessee shall have full control and entire management of all the lands herein described, surface and coal during the continuance of this Lease the full and complete consideration therefor being the above name ‘ royalty ’ of twelve and one-half cents per ton for the coal of grades coarser than Buckwheat coal mined and sold. It is understood and agreed that the Lessor and Lessee shall each pay an equal amount of all taxes assessed or levied on the above described lands. And by these presents the parties hereunto, together with their heirs and assigns are firmly bound. Witness our hands and seals the day and year above written. In presence of “ F. P. Arnold, Wm. N. Arnold (l. s.)

      “ J. D. Leek. Walter M. Leek (l. s.) ”

    Other facts appear by the opinion of the Superior Court.
    The referee found in favor of the plaintiff, but his exceptions were sustained by Purdy, P. J., and a decree was entered dismissing the bill.

      Error assigned was decree dismissing the bill.

      II. W. Mumford, with him David E. Anthony, for appellants.
    The interest vested in Leek was an estate for ninety-nine years, and thereafter from year to year, determinable earlier upon the exhaustion of the coal, and further determinable at the discretion of the lessee after the commencement of selling within six months. 'It was an estate for years, with all the incidents of such an estate.
    An abandonment of the leased premises by the lessee, with a failure to perform his covenants, express or implied, may, at the election of the lessor, be treated as an implied surrender, or a surrender in law, and such surrender may be implied from acts inconsistent with an intention to continue the use and occupancy of the premises.
    October 11, 1909:
    Under the circumstances, no entry or demand by the lessor was necessary to terminate the lessee’s estate. There was nothing which the lessor could demand but payment of the royalties, and as no coal had been mined there was nothing to pay.
    The erection of structures for mining purposes by the defendants is wholly immaterial, since, as owners of an undivided one-half interest in the fee, they had a right to mine the coal, subject to the duty of accounting to their cotenants.

      W. W. Watson, with him F. K. Tracey, for appellees.
    The agreement of lease was a sale of the coal by Arnold to Leek: Kingsley v. Iron & Coal Co., 144 Pa. 613; Plummer v. Coal & Iron Co., 160 Pa. 483; Lazarus’s Est., 145 Pa. 1.
    There was no abandonment of the lease or premises: Bartley v. Phillips, 179 Pa. 175; Philadelphia v. Riddle, 25 Pa. 259; Putnam v. Tyler, 117 Pa. 570; Venture Oil Co. v. Fretts, 152 Pa. 451; Pauli v. Mackey, 3 Watts, 110.
   Opinion by

Henderson, J.,

If we concede that there was jurisdiction in equity to entertain the complainant’s bill we are met by the objection that the contract of June 8, 1888, which the complainants seek to have canceled, transfers a half interest in the coal underlying the land described to Walter M. Leek, the second party. The language used is “Doth by these presents let,” but the technical words “grant, bargain and sell” or their equivalent are not necessary to pass the title to coal in place if from the language of the whole instrument the intention to sell is apparent. Numerous cases hold that an instrument which is in terms a lease or demise of all the coal in a tract of land with a right to mine and take away the same is a sale of the coal.in place: Hope’s Appeal, 29 W. N. C. 365; Montooth v. Gamble, 123 Pa. 240; R. R. Co. v. Sanderson, 109 Pa. 583; Lazarus’s Estate, 145 Pa. 1; Timlin v. Brown, 158 Pa. 606; Coolbaugh v. Lehigh & Wilkes-Barre Coal Co., 213 Pa. 28; Hosack v. Crill, 18 Pa. Superior Ct. 90. Whether the instrument be called a lease or deed all of its provisions must be taken into consideration to ascertain the intent of the parties. If from that consideration the intention of the parties is found to have been to make a sale, their contract will be so interpreted. And where this intention is clear the construction of the instrument is not affected by the fact that compensation is stipulated for a fixed price per ton or at a gross sum for the whole price, nor that the compensation is called rent or royalty. Examination of the agreement referred to satisfies us that the parties intended a sale of the coal. It disposes of all of the first party’s interest for the period of “ninety-nine years next ensuing and from year to year thereafter.” It further provides, “This lease expires when coal is exhausted.” The second party covenanted to pay to the first party or his assigns the sum of twelve and one-half cents per ton on all coal mined and sold from said land, of grades coarser than that known as “buckwheat coal” and agreed to commence selling coal within six months from the date of the agreement. It was stipulated that royalty be due and payable at the termination of each three months for the amount mined and sold during the said three months, allowing ten days’ grace for fixing amount and results. The agreement bound the parties, their heirs and assigns, and was under seal. There was, therefore, a grant of the coal and an agreement to pay therefor at a price fixed, times stated at which payment should be made and an agreement that the title should continue in the second party as long as the coal lasted. It is argued that this agreement is distinguishable from any of those contained in the cases cited in that the contract contains no engagement to take or sell more than the quantity which it might be necessary to mine in order to “commence selling within six months,” and that having commenced selling within that time the second party was at liberty to throw up the enterprise at any time thereafter. But we do not so interpret the contract. It was undoubtedly the intention of the parties that the mine should be worked with reasonable diligence and that the output should bear a relation proportionate to the capacity of the mine and the state of the market. The spirit of the agreement implies this, and that much the grantors could insist upon. Where the consideration for the agreement is to be determined by the output of the mine the law implies a covenant on the part of the grantee that he will prosecute the work with reasonable diligence, so that the grantor may receive the compensation which was in view when the agreement was made: Watson v. O'Hern, 6 Watts, 362; Lyon v. Miller, 24 Pa. 392; Koch’s Appeal, 93 Pa. 434. That the grantor did not protect himself by requirement for a minimum production from the mine does not change the character of the instrument. There is no clause of forfeiture nor any provision for a reversion as to any part of the coal, but the grantor was not without remedy on his contract. Such being the nature of the interest held by the appellees the doctrine of abandonment does pot apply. They held a complete title to the half interest in the coal, and abandonment only takes place in case of imperfect title: Bear Valley Coal Co. v. Dewart, 95 Pa. 72; Putnam v. Tyler, 117 Pa. 570. Abandonment as to a perfect title could only be affirmed on a state of facts sufficient to raise an estoppel or where possession has been acquired and held under a claim of title by limitation. If, however, the case turned on the question of abandonment we find no reason for criticising the conclusion of the learned judge of the court below. Neither the defendants nor those under whom they hold ever acknowledged an abandonment, and their conduct in making and receiving conveyances is inconsistent with an intention to abandon. The destruction of the breaker by fire suspended mining operations, but a large expense was involved in the reconstruction of the plant, and this fact or the state of the market and the expense of operating the mine may have been an excuse for delay. The owner of the half of the mine in which the plaintiffs had no interest was losing any profit which might have been derived by operating the property equally with the plaintiffs and had the same motive for activity in prosecuting the business which they had. We cannot say that the delay is sufficient evidence of abandonment to overcome the terms of an express covenant. The letters written by Crawford and Leek to Arnold in 1899 show a desire to lease or otherwise dispose of the property, but they are not inconsistent with the position taken by the defendants. The property was idle and a large expenditure would be necessary to put it into working order, and all concerned were interested- in realizing in some form on the investment. Whatever Crawford and Leek may have understood their obligation to be under the contract the correspondence does not clearly show that they recognized that their rights were forfeited. Both in July, 1899, the year in which the letters from Leek and Crawford were written, and in February, 1902, the defendants were asserting the existence of the lease as shown by the deed from Leek to Cramer and Cure and by the lease from Crawford to Cramer and Cure. The heirs of Arnold did not attempt to take possession of the premises or exercise any ownership over it during the time the mine was not in operation, and the evidence does not disclose a state of facts from which it can be satisfactorily concluded that there was a surrender of the interest. Abandonment is ordinarily a question of intention. There must be an intention to abandon as well as an actual abandonment of property, and where the character of the transaction depends on the intent of the party it is competent for him to testify what his intention was: Juniata Building & Loan Association v. Hetzel, 103 Pa. 507. This rule was applied in Bartley v. Phillips, 179 Pa. 175, where the lessee of the owner was permitted to prove that in removing certain materials from the land they had no intention to abandon the lease. We are not persuaded that an error was committed in the decree entered in this case. It is, therefore, affirmed.


author: Beaver, J.,

text:
    Rotograph Company v. Cressman, Appellant.

      Appeals — Question raised for first time — Contract—Set-off.
    On an appeal from a judgment in an action for goods sold and delivered, the appellant cannot in the appellate court raise for the first time, the question whether the contract was an entire one or not.

      Contract — Sale—Damages.
    Where the vendor of postal cards contracts to deliver his entire stock of a particular kind of cards, but delivers only part thereof, the vendee in an action against him for the cards delivered, cannot set off a claim for the damages for the profits not made on those not delivered, where there is no proof of the quantity of cards which could have been sold, or the terms upon which they could have been sold, and it appears that even a larger quantity were obtained in the market, and that these sufficed for the demand.
    Argued Dec. 11, 1908.
    Appeal, No. 218, Oct. T., 1908, by defendants, from judgment of C. P. Lehigh Co., April T., 1908, No. 76, on verdict for plaintiff in case of The Rotograph Company v. Hattie Shafer Cressman, executrix of J. Alfred Shafer, now or late trading as Shafer’s Book Store.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for goods sold and delivered. Before Trexler, P. J.
    The facts appear by the opinion of the Superior Court.
    The court gave binding instructions for plaintiff.
    Verdict and judgment for plaintiff for $306.14. Defendants appealed.

      Errors assigned were (1, 2) the rulings on evidence, quoted in the opinion of the Superior Court, and (3) binding instructions for plaintiff.

      George M. Lutz, for appellant.
    We contend that this was an entire contract and that under the former of these two questions the plaintiff could not recover until he had fully complied with the terms' thereof: Kelley Brick Co. v. Clay Product Supply Co., 32 Pa. Superior Ct. 408; Fisher v. Mershon, 9 Pa. Superior Ct. 238; Martin v. Fridenberg, 169 Pa. 447; Hartman v. Meighan, 171 Pa. 46.
    The Supreme Court of this state has repeatedly held that profits or advantages which are the direct and immediate fruits of the contract entered into between the parties are a part and parcel of the contract itself, entering into and constituting a portion of its very elements; something stipulated for, the right to the enjoyment of which is just as clear and plain as the fulfillment of any other stipulation: Puritan Coke Co. v. Clark, 204 Pa. 556; Wilson v. Wernwag, 217 Pa. 82; Singer Mfg. Co. v. Christian, 211 Pa. 534; Imperial Coal Co. v. Port Royal Coal Co., 138 Pa. 45; Pennypacker v. Jones, 106 Pa. 237; Hoy v. Gronoble, 34 Pa. 9; Adams Express Co. v. Egbert, 36 Pa. 360; Pittsburg Gauge Co. v. Ashton Valve Co., 184 Pa. 36.
    October 11, 1909:

      Frank Jacobs, for appellees.
    It is submitted that the appellant cannot on this appeal raise for the first time the question as to whether the contract was an entire one: Bank v. Thomas, 220 Pa. 360; Martin v. Stong, 35 Pa. Superior Ct. 635; Beaver Borough v. Beaver Valley R. R. Co., 217 Pa. 280.
    The measure of damages is the difference between the contract price and the price at which the defendant obtained the cards to fill the orders intended to have been filled by the goods which it is alleged that plaintiff agreed to deliver: Roberts & Co. v. Andrews & Co., 15 Pa. Superior Ct. 305; Theiss v. Weiss, 166 Pa. 9; Arnold v. Blabon, 147 Pa. 372; Morris v. Supplee, 208 Pa. 253; Kinports v. Breon, 193 Pa. 309.
   Opinion by

Beaver, J.,

The plaintiff recovered in the court below for certain postal cards sold and delivered to the defendant.

The defendant admitted in her affidavit of defense: “That the merchandise alleged in the plaintiff’s statement to have been received was received by the defendant at the request of the said defendant, the Shafer Book Store at Allentown on or about the dates mentioned in the plaintiff’s statement, and that the copies of the items of the books of original entries and the' prices affixed thereto as appears on the copy attached to the plaintiff’s statement are true and correct.”

The defense set forth in the affidavit of defense was a set-off against the amount claimed by the plaintiff’s statement by a loss of profits on certain postal cards sold by the plaintiff to the’ defendant, which were not delivered, and also for a violation of its contract with the defendant not to sell to any other person in Allentown similar view cards, and also to make J. Alfred Shafer, for whom the defendant is executrix, sole agent in the city of Allentown for the purpose of selling its product for a period of one year. The allegations as to this agency and sale to other parties subsequent to the date of the sale to the defendant’s testator were, as the court properly said in its opinion upon a motion for a new trial, after referring to the set-off claimed by the defendant by reason of the nondelivery of a certain portion of the cards ordered, “There were other matters of defense, but as to them, on the trial, the proof failed.”

The offer of sale by the plaintiff to the defendant included some 45,000 picture cards which the plaintiff alleged had been, or were being, manufactured for it in Germany and were to be delivered when they were received. There is no proof, however, that they ever were received by the plaintiff.

The court below rejected the offers of evidence of the defendant of prospective profits in the sale of the cards which they did not receive as a set-off to the price or value of the cjards which they did receive.

The assignments of error are three in number. The first two relate to the rejection of the offers of testimony and the third to the instructions to the jury “to bring in a verdict in favor of the plaintiff in the sum of $306.14.”

In the argument of the appellant, it is claimed that the contract between the plaintiff and defendant was but partially executed and that, inasmuch as it was an entire contract, the plaintiff cannot recover for a portion of the goods embraced in the contract. This position, however, was not taken in the court below. Neither in the affidavit of defense nor in the trial was this question referred to. And even if it had been, there seems to be, in the proposition of the plaintiff, a distinction between the cards on hand and those to be received later “ coming in, ” and, inasmuch as it is not shown in any way that the cards said to be “coming in” were ever received, it seems to us that there may have been a clear distinction between those on hand and those to be subsequently received, which would have negatived the idea of an entire contract. However, inasmuch as this question was not raised in the court below at the trial, we do not consider it necessary to pass upon it. This is so well settled that it is scarcely necessary to cite authorities therefor. One of the very late ones, however, is found in Beaver Borough v. Beaver Valley R. R. Co., 217 Pa. 280, in which it is said, referring to a question earnestly pressed on the argument, but not embraced in any assignment of error, “Since it was not brought to the attention of the court below, the settled rules of practice forbid its consideration here. An exception cannot be urged in the appellate court on different grounds than those taken in the court below.”

The testimony shows that, although there was a demand on the part of the customers of the defendant for the cards agreed to be purchased from the plaintiff which were not furnished, that demand was met by a subsequent purchase by the defendant in the market of a very much larger number of cards than were to be furnished by the plaintiff. Instead of paying a larger sum for the cards purchased in the- market, however, the defendant paid a much lower price, alleging that the cards purchased were not equal in quality to those agreed to be delivered by the plaintiff, but the difference in value is not stated, so that, even if the question of profits upon the prospective sales of the cards not delivered had been put in such positive shape as to be competent evidence, we do not think the testimony taken, as a whole, could have been submitted to the jury, so as to enable them to reach any definite conclusion as to the loss, if any, sustained by the defendant.

The offers of the defendant were very much of the same character, the second being rather more in detail than the first and being as follows: “ I propose to prove by the witness that they had bought these cards from the Rotograph Company, and, if the Rotograph Company had delivered all the cards that they had sold, and lived up to the contract, that the Shafer Book Store could and would have had a profit of $1.05 on each 100 cards so sold at retail and a profit of $2.50 on each 1,000 cards sold at wholesale. That about twenty-five per cent of these cards were sold at wholesale and the balance — seventy-five per cent — were sold at retail.” There was no offer to prove, however, that the demand for sales at wholesale and retail would have continued relatively the same. At the time the offers were made we think they were properly rejected by the court first, because of their indefinite character, and, secondly, because they were not accompanied by the offer to prove that the defendant was unable to buy the cards which the plaintiff failed to deliver in the open market. This failure we think was fatal to the offers, because, as shown later in the testimony, the defendant actually did purchase 140,000 cards from other parties which, so far as the testimony shows, met the demands of the market, and were much greater in number than those which the plaintiff failed to deliver.

As stated in Kinports v. Breon, 193 Pa. 309, the general rule as to the measure of damages in such a case as the present is laid down as follows: “The measure of damages for the failure to deliver personal property sold is generally the difference between the contract price and the market price at the time of the breach: Fessler v. Love, 48 Pa. 407; McHose v. Fulmer, 73 Pa. 365; Arnold v. Blabon, 147 Pa. 372; Theiss v. Weiss, 166 Pa. 9. A different rule may be adopted where it appears from the terms of the contract or from the proof of circumstances that this measure would be inadequate or impossible of application.” See also Roberts & Co. v. Andrews Co., 15 Pa. Superior Ct. 305. “In actions for damages for breach of a contract, while it is not ordinarily necessary to prove the exact amount of loss to an absolute certainty, yet whenever substantial damages are claimed, their amount is the subject of proof and must be shown with reasonable certainty; and evidence, to be sufficient to authorize a recovery,’ must furnish some criterion or data whereby the jury may make rational deductions and calculations to determine the amount without danger of gross injustice or reliance on their own speculations or conjecture of the probable loss sustained:” 13 Cyc. 214.

The rejection of the defendant’s offer did no harm for the reason that, if everything-offered had been received in evidence, we cannot see how the testimony could have influenced the result, because the court would have been obliged to say at the end of the defendant’s testimony that no reliable data had been furnished from which the jury could have estimated the profits to be derived from the sale of the cards which were not furnished by the plaintiff, and, in view of the fact that other cards had been purchased, there was not sufficient evidence to enable the jury to reach a reasonable and well-grounded conclusion as to the difference in value between the cards which the plaintiff failed to deliver and those purchased in the market to take their place.

Considering the whole case as presented, the opinion of the court below, in discharging the motion for a new trial, properly, as we view it, laid down the reasons for a refusal of the motion.

Judgment affirmed.