text:
    552 A.2d 303
    Evan E. LLOYD, Esq. and Leslie D. Michel, Esq., Appellants, v. Ralph T. FISHINGER and Rosemary Fishinger, his wife, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1988.
    Filed Jan. 6, 1989.

      John G. Arch, Pittsburgh, for appellants.
    Paul G. Kachulis, Pittsburgh, for appellees.
    Before OLSZEWSKI, KELLY and HESTER, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order of the trial court sustaining appellees’ preliminary objection in the nature of a demurrer. Appellants challenge the constitutionality of 42 Pa.C.S.A. § 7101, which provides that when a person is injured and confined as a patient to a hospital, an attorney cannot, during the first 15 days of confinement, enter into an agreement relating to compensation with the patient in connection with his injuries. For reasons discussed below, we find that the statute is unconstitutional; accordingly, we vacate and remand.

On June 6, 1987, appellee, Ralph T. Fishinger, was seriously injured in a motorcycle accident. Appellant, Evan E. Lloyd, Esquire, visited appellee, Mrs. Rosemary Fishinger, in her home on June 8, 1987, and obtained her signature on a contingent fee agreement. In the four days that followed, Mr. Lloyd approached Mr. Fishinger in the hospital, discussed representing him, and obtained his signature on the contingent fee agreement. As a result of being sedated for surgery earlier that day, Mr. Fishinger had no recollection of signing the agreement. Upon being discharged from the hospital on July 9, 1987, Mr. Fishinger informed Mr. Lloyd that he did not want appellants to represent him. Appellants, however, refused to withdraw and, acting upon the agreement, received a verbal offer from the tortfeasor’s insurance company to settle for $100,000.

Appellants filed this action to recover 37.5% of the $100,-000 for their services pursuant to the contingent fee agreement. Appellees, in a preliminary objection to appellants’ complaint in the nature of a demurrer, contended that such an agreement was forbidden by 42 Pa.C.S.A. § 7101. In its opinion dated April 15, 1988, the trial court sustained appellees’ demurrer based upon 42 Pa.C.S.A. § 7101, which provides in pertinent part:

§ 7101. Settlements and other agreements with hospitalized persons
(a) General rule....
(3) Where a person is injured and confined as a patient to a hospital or sanitarium due to such injuries, no attorney shall, during the first 15 days of confinement of such patient, enter or attempt to enter into an agreement relating to compensation wholly or partly on a contingent basis with such patient in connection with his injuries.
(b) Exception. — Subsection (a) shall not apply if at least five days prior to obtaining the ... contingent fee agreement, the injured person has signified in writing, by a statement acknowledged before a notary public who has no interest adverse to the injured person, his willingness that a ... contingent fee agreement be given or entered into.
Initially, we note our standard of review:
[Tjhis Court’s scope of review is limited where there is a challenge to the sustaining of a preliminary objection in the nature of a demurrer. Mahoney v. Furches, 503 Pa. 60, 468 A.2d 458 (1983). Our inquiry goes only to determining the legal sufficiency of appellant’s complaint and we may only decide whether sufficient facts have been pleaded which would permit recovery if ultimately proven. Gordon v. Lancaster Osteopathic Hosp. Ass’n., 340 Pa.Super. 253, 489 A.2d 1364 (1985). We must be able to state with certainty that “upon the facts averred, the law will not permit recovery by the plaintiff.” Berger v. Ackerman, 293 Pa.Super. 457, 459, 439 A.2d 200, 201 (1981).

Fizz v. Kurtz, Dowd & Nuss, Inc., 860 Pa.Super. 151, 152, 519 A.2d 1037, 1038 (1987).

Appellants contend that the trial court erred in sustaining the demurrer based on 42 Pa.C.S.A. § 7101. Specifically, appellants urge that the statute is unconstitutional “as an infringement on the Supreme Court’s exclusive power to govern the conduct of persons privileged to practice law in Pennsylvania____,” appellant’s brief at 3, and under the case of Insurance Adjustment Bureau v. Insurance Commissioner, 518 Pa. 210, 542 A.2d 1317 (1988). In the alternative, appellants argue that the contingent fee contract entered into with appellees is not void under the statute.

“It is clear that the legislature is precluded from exercising powers entrusted to the judiciary.” Maunus v. State Ethics Commission, 518 Pa. 592, 594, 544 A.2d 1324, 1325 (1988), citing, Kremer v. State Ethics Commission, 503 Pa. 358, 469 A.2d 593 (1983); Commonwealth v. Sutley, 474 Pa. 256, 378 A.2d 780 (1977). Our state constitution mandates that:

The Supreme Court shall have the power to prescribe general rules ... for admission to the bar and to practice law____ All laws shall be suspended to the extent that they are inconsistent with rules prescribed under these provisions.

Pa. Const. Art. 5 § 10(c).

We acknowledge, preliminarily, that our Supreme Court has never fully clarified what constitutes the “practice of law” under Art. 5 § 10. See Pennsylvania Public Utility Commission Bar Association v. Thornburgh, 62 Pa. Commw. 88, 434 A.2d 1327 (1981), aff'd 498 Pa. 589, 450 A.2d 613 (Hutchinson, J., dissenting) (hereinafter “PUC"). Commonwealth Court decisions subsequent to PUC, nonetheless, have opined as follows:

The provision of the Pennsylvania Constitution which records the power of the Supreme Court to prescribe general rules for admission to and regulation of the bar, Article V, Section 10(c), has been held to include “the continuous monitoring of the practice of law.” Cantor v. Supreme Court of Pennsylvania, 353 F.Supp. 1307, 1316, n. 21 (E.D.Pa.1973)[.]
Included in that “regulated” conduct of attorneys which falls well within the ambit of the constitutionally discrete power of the judiciary is the fee charged by lawyers. As early as 1793, the courts of this Commonwealth were addressing such issues. See, Breckenridge v. McFarland, Addison Reporter 49 (1793). More recently, in Schlesinger v. Teitelbaum, 475 F.2d 137, 141 (3rd Cir. 1973), cert. denied 414 U.S. 1111, 94 S.Ct. 839, 38 L.Ed.2d 737 (1973), the Federal Appeals Court noted that “in its supervisory power over the members of its bar, a court has jurisdiction of certain activities of such members, including the charges of contingent fees.” (Emphasis added.) We conclude that Section 604(a) infringes upon the exclusive power of courts of this Commonwealth to govern the activities of attorneys relative to their contingent fee agreements, and is thus unconstitutional.

Heller v. Frankston, 76 Pa.Commw. 294, 303, 464 A.2d 581, 586 (1983). See also Kury v. State Ethics Commission, 62 Pa.Commw. 174, 435 A.2d 940 (1981) (Provision of the Ethics Act, 65 P.S. § 403(e), that no former employee shall represent anyone before the governmental body with which he has been associated for one year after he leaves that body is an impermissible regulation of the conduct of attorneys by the legislature in an area reserved by the Constitution to the Supreme Court.).

Although never specifically addressed by any court in this Commonwealth, we find no appreciable distinction between the intrusion by the legislature in the instant case and those delineated supra. While we acknowledge that the legislature through its police power may legislate except where such legislation has been prohibited, even a statute enacted pursuant to the legislature’s police power must be struck down if it is found to interfere with another branch of government. Heller, supra, 76 Pa.Commw. at 298-300, 464 A.2d at 584.

Regarding 42 Pa.C.S.A. § 7101, it is important to note that our Supreme Court historically has regulated attorneys’ conduct through, first, the Code of Professional Responsibility and, subsequently, the Rules of Professional Conduct and the Rules of Disciplinary Enforcement, which state:

The Supreme Court declares that it has inherent and exclusive power to supervise the conduct of attorneys who are its officers (which power is reasserted in Section 10(c) of Article V of the Constitution of Pennsylvania) ...

Pa.R.D.E. 103. Moreover, it is settled that “... regulating the bar and disciplining lawyers are judicial functions ‘protected against legislative incursion____’” Heller, supra, at 302, 464 A.2d at 585, quoting In re 42 Pa.C.S. § 1703, 482 Pa. 522, 530, 394 A.2d 444, 449 (1978). While we appreciate our legislature’s deep concern and emphasize that we by no means condone the behavior challenged herein, we find, based upon the foregoing, that 42 Pa.C.S.A. § 7101 constitutes an impermissible legislative interference with the responsibilities of the judiciary. We conclude, therefore, that 42 Pa.C.S.A. § 7101 is an unconstitutional infringement on the exclusive power of our Supreme Court to supervise the conduct of attorneys in the Commonwealth.

Accordingly, we hold that the trial court erred in sustaining appellees’ preliminary objections in the nature of a demurrer based upon 42 Pa.C.S.A. § 7101. The order of the trial court is reversed and case remanded for proceedings consistent with the Pennsylvania Rules of Civil Procedure. Jurisdiction is relinquished.

      . The Act provides as follows:
      Attorney’s fees
      (a) When a plaintiff is represented by an attorney in the prosecution of his claim the plaintiffs attorney fees from any award made from the first $100,000 may not exceed 30%, from the second $100,000 attorney fees may not exceed 25%, and attorney fees may not exceed 20% on the balances of any award.
      (b) A plaintiff has the right to elect to pay for the attorney’s services on a mutually satisfactory per diem basis. The election, however, must be exercised in written form at the time of employment.
      40 P.S. § 1301.604.


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    552 A.2d 306
    M. Imogene HARTZFELD, Appellee, v. GREEN GLEN CORPORATION, Treasure Lake Property Owners Association, Inc., Recreation Land Corporation, Their Successors and Assigns. Appeal of TREASURE LAKE PROPERTY OWNERS ASSOCIATION, INC., and Recreation Land Corporation, Their Successors and Assigns, Appellants.
    Superior Court of Pennsylvania.
    Argued Oct. 26, 1988.
    Filed Jan. 5, 1989.

      Michael P. Yeager, Clearfield, and Scott V. Jones, Du Bois, for appellants.
    William C. Kriner, Clearfield, for appellee.
    Before OLSZEWSKI, DEL SOLE and KELLY, JJ.
   DEL SOLE, Judge:

Following certification by the trial court and grant of a Petition for Allowance of an Interlocutory Appeal, Appellants have presented this appeal from an order dismissing their preliminary objections. Appellants ask us to determine whether all the necessary parties have been joined as defendant’s in Appellee’s quiet title action. Since we find that there exists certain indispensable parties who should have been joined as defendants, we reverse the trial court’s order and dismiss Appellee’s complaint without prejudice.

Appellee, who acquired property in the Treasure Lake Subdivision, filed a complaint claiming title by adverse possession to a strip of property located between her deeded premises and the lake. Named as defendants were Appellants, whom Appellee claimed in her complaint were “all previous owners in the chain of title” for the subject property. Appellants responded by filing Preliminary Objections claiming that all lot owners in the Treasure Lake Subdivision own such an interest in this property that they are necessary and indispensable parties. In support of their position Appellants presented three documents to the court which they claimed created for all the lot owners in the Subdivision a property interest in a 150 foot strip of land surrounding the lake, a portion of which is the subject of this action. The trial court found that the three documents and the restrictions contain therein, “cannot be applied to [Appellee’s] property” since she acquired her property prior to the existence of the documents. The court went on to rule that even if the restrictions contained in the documents do apply in this case, they grant the lot owners no more than a privilege to use the disputed area, “but grant no specific individual ownership right ... that would require each of them to be named as parties of this action.”

Since it is important to determine the interest possessed by all lot owners in the subdivision, we will examine the documents and their applicability to the various parties before ruling on the ultimate issue of whether Appellee failed to join all necessary and indispensable parties.

First we conclude the trial court erred in ruling that the three documents are inapplicable. The trial court based its ruling upon the fact that these instruments were executed subsequent to Appellee’s purchase of the deeded property and therefore, she was not subject to the contents of the documents. The trial court’s analysis misses the point. The documents presented by Appellants must be examined to determine what rights, if any, have been granted to other lot owners in the disputed property. Whether or not Appellee is subject to the terms of these documents is irrelevant. At issue is whether these documents grant others rights to the disputed property, which rights Appellee must extinguish before prevailing in her claim of ownership.

Appellee acquired her lot in the Treasure Lake subdivision from Appellant, Recreation Land Corporation’s, predecessor in title, John E. DuBois Jr. and Rene Handley DuBois. Title to the disputed property was not passed by deed and remained with the grantors. A few years later Mr. and Mrs. DuBois entered certain “Stipulations and Conditions” with Clear Run Farms Lake Rene (owned by Mr. and Mrs. DuBois) and “all subsequent purchasers of lots” in the plan. It included the following provision:

All persons who are the owners of lots as set forth in the aforementioned Lot Block Plan, and their invitees, shall have the privilege of using the lands surrounding Lake Rene (now Treasure Lake), for the purpose of boating swimming, fishing, hunting and other recreational activities, including the 150 foot wide strip of land surrounding Lake Rene as owned, and will be retained by the owners

The lot owners’ usage was said to be conditioned upon particular regulations, such as a prohibition against tree or shrub removal, against boat launching and picnicking on the 150 foot strip of land. An annual maintenance charge was also to be assessed to each lot owner. Mr. and Mrs. DuBois reserved the right to amend these rules or add additional rules and make these regulations a condition precedent to the use of the lake and surrounding lands.

Six years later after Mr. and Mrs. DuBois sold their interest in Clear Run Farms Lake Rene to Treasure Lake, Inc., the new owner executed a “Declaration of Restrictions.” In a document filed a few months later Mr. and Mrs. DuBois agreed that the Declaration of Restrictions of Treasure Lake, Inc. are to act as amendments and additions and be incorporated into their original “Stipulations and Conditions.”

In the instrument executed by Treasure Lake, Inc. additional regulations were added regarding such things as the size and design of structures which would be permitted on lots sold in the Subdivision. It prohibited certain general activities on any lots in the Subdivision. It also established “Treasure Lake Property Owners Association, Inc.,” an Appellant herein, and required all those acquiring title to be a member of the Association. No mention of the 150 foot strip of land is specifically found in the Declaration of Restrictions. However, Appellee calls our attention to the following provision:

The ownership of the recreational amenities within the Property which may include but shall not be limited to lakes, dams, marinas, beaches, lake access tracts, golf courses, tennis courts, swimming pools, clubhouses and adjacent clubhouse grounds, and campgrounds shall be in Declarant or its successors or assigns and the use and enjoyment thereof shall be on such terms and conditions as Declarant, its successors or assigns, shall from time to time license; provided, however that any or all of such amenities may be conveyed to the Association, which conveyance shall be accepted by it, provided that same is free and clear of all financial encumbrances.

The declaration also provides that “all of the Restrictions shall run with the land and shall be binding on all parties having or acquiring any right, title or interest in and to the real property or any part or parts thereof subject to such Restrictions.” It further sets forth the following:

The Restrictions and agreements set forth herein are made for the mutual and reciprocal benefit of each and every lot in the Subdivisions and are intended ... to create privity of contract and estate between the grantees of said lots, their heirs, successors and assigns, and shall, as to the owner of each such lot, his heirs, successors or assigns, operate as covenants running with the land for the benefit of each and all other lots in the Subdivision and their respective owners.

Finally the Declaration recites that the restrictions imposed “are amendments and additions to all restriction heretofore imposed on any of the Property or lots sold therefrom by Declarant or its predecessors in title.”

Appellee asserts that these documents do not grant any property rights to the lot owners in the Subdivision. She points to the use of the words “privilege” and “license” in the documents and maintains that the lot owners were merely granted a “privilege” or “license” to use the 150 foot area. Referring to the fact that a license is a mere personal privilege to perform certain acts on the land of another and conveys no interest or estate in the land, Hennebont Co. v. Kroger Co., 221 Pa.Super. 65, 289 A.2d 229 (1972); Thompson v. Com. Dept. of Highways, 214 Pa.Super. 329, 257 A.2d 639 (1969), Appellee reasons that the lot owners had no interest in the property retained by the grantor and therefore are not proper parties to her quiet title action. We cannot adopt Appellee’s position.

It appears clear from the portions of the instruments quoted above that the grantors who retained an interest in the 150 foot strip of land sought to convey some interest in that land to the Subdivision lot owners. The lot owners purchased their lots with the understanding and agreement that they would enjoy use of this property. We do not believe the term license contained within the documents was used to signify that no property rights were being created in favor of the lot owners. The first instrument refers to “all persons who are owners of lots” and therefore appears to bind not only the lot owners who would initially take title subject to these provisions but also their successors in interest. The Declaration of Restrictions clearly indicate that the lot owners’ heirs, successors and assigns will take subject to the restrictions and benefits contained within the instrument; and, as noted, these provisions constituted additions to those written in the first Stipulation executed by Mr. and Mrs. DuBois. In addition, the Declaration clearly states that the provisions contained therein are covenants running with the land.

Many covenants which run with the land are considered to be restrictive covenants. Indeed many of these appear in the Stipulation and Declaration of Restrictions which prohibit or limit certain uses of each lot owner's land. However, “not all covenants running with the land are necessarily restrictive covenants.” Birchwood Lakes Community Ass’n v. Comis, 296 Pa.Super. 77, 84, 442 A.2d 304, 307 (1982). In the Birchwood Lakes case property owners within a residential recreational community bought an action to interpret language contained in their deeds regarding assessments. The deed provides, in part, that certain lots:

shall be subject to an annual lien or charge of $10.00 and the Grantee, his her or their heirs, successors, executors, administrators and assigns agree to pay to the Grantor its successors and assigns the sum of Ten ($10.00) Dollars ... for beach privileges whether the same are exercised or not. The title to all land designated as beach is expressly retained by the Grantor.

In interpreting this language in light of a latter clause indicating that an annual assessment for beach privileges was to be no less than $30.00, the court first ruled that these clauses constituted covenants running with the land. “The covenants here at issue were clearly intended to bind the successors in interest of all grantees and therefore were intended to follow the title or in other words run with the land.” Id., 296 Pa.Superior Ct. at 84, 442 A.2d at 307. See also: Indian Mountain Lake Civic Ass’n v. Coyle, 283 Pa.Super. 545, 424 A.2d 943 (1981) (where an annual due and assessment to property owners, their executors or assigns were covenants running with the land.)

In contrast with a personal covenant, a covenant which is to run with the land ordinarily must affect the land and be intended to pass with it. Caplan v. City of Pittsburgh, 375 Pa. 268, 269, 100 A.2d 380, 383 (1953). “Since the test for determining whether the promise runs with the land is whether it was so intended by its creators, an indication that the grantees' heirs or assigns are considered bound by its terms is generally decisive of the question.'' Leh v. Burke, 231 Pa.Super. 98, 331 A.2d 755, 760 (1974), (citation and footnote omitted). Here such an intent is evident from the documents.

Because we have determined that the lot owners who took title subject to the provisions of the Stipulations and Declaration of Restrictions do possess an interest in the land which Appellee claims title to by adverse possession, we must next consider whether that interest is of such a nature so as to require these lot owners to be named as parties to this action.

Rule 2227(a) of the Rules of Civil Procedure provides: “Persons having only a joint interest in the subject matter of an action must be joined on the same side as plaintiffs or defendants.” Pa.R.C.P. 2227, 42 Pa.C.S.A. This rule is applicable where substantive law provides that an interest is joint and so connected with the claims of the litigants that no relief can be granted without impairing the rights of the litigants. Mitchell v. Purdential Property & Cas. Ins., 346 Pa.Super. 327, 499 A.2d 632, 636 (1985). The inquiry into whether a party is indispensable to the plaintiff’s action must be viewed from the perspective of protecting the rights of the absent parties and not from the perspective of whether the joinder of a party to the action would make the matter more difficult to litigate. E-Z Parks, Inc. v. Philadelphia Parking Authority, 103 Pa.Commw. 627, 521 A.2d 71, 75 (1987).

In the context of a declaratory judgment action, where the court cannot act unless “all interested persons are joined as parties,” the necessity to join landowners and club members was considered in Moraine Valley Farms v. Connoquenessing Woodlands Club, Inc., 296 Pa.Super. 277, 281, 442 A.2d 767, 769 (1982). In Moraine, the plaintiffs, lot owners in a resort plan, sought to have declared invalid the by-laws of a club which was created to provide recreational facilities for the lot owners. The deed which conveyed property and a clubhouse to the Club reserved to original owners, their successor and assigns and all future lot owners the right to use the club facilities. The court ruled that all those owning property to which the alleged right to membership inured, and all persons holding regular and transferable memberships might be adversely affected by the declaration so that a decree could not be formulated without these parties present. The court in Moraine went on to comment that the plaintiff had not asserted that they were acting as representatives of a class. It found that “absent certification of the Club and/or the Appellants as a class representing the interests of property owners and Club members not parties to this action, we conclude that the Chancellor did not abuse his discretion in declining to hear the matter in a declaratory judgment proceeding.” Id., 296 Pa.Superior Ct. at 281, 442 A.2d at 770.

Although the instant case does not arise from a declaratory judgment proceeding, we find some guidance in the Moraine case. Here, it is clear from the recorded documents that the original grantors and their successors in title intended for the current and future lot owners of the Treasure Lake Subdivision to enjoy certain rights in the 150 foot strip of land surrounding the lake. Appellee, who wishes to claim title to a portion of this land, must join these lot owners for they are indispensable parties. When acquiring title to their respective lots these lot owners secured rights in addition to the raw land itself. In making their purchase they had the right to rely upon the recorded representations of those rights. A potential decision in Appellee’s favor would certainly adversely affect those rights.

Although we note that there are approximately 5000 residential building lots in the Treasure Lake Subdivision, and that all lot owners are required, according to the Declaration of Restrictions to be members of Treasure Lake Property Owners Association, Inc, an Appellant herein, Appellee has not sought to join the Owners Association as a representative of a class. See Pa.R.C.P. 1701 et seq., 42 Pa.C.S.A. Appellee’s Complaint only asserts that the Association along with the other defendants were “previous owners in the chain of title.” Absent such certification or joinder of all interested and necessary parties this action cannot go forward.

Order of the trial court reversed. Appellee’s complaint dismissed without prejudice. Jurisdiction relinquished.


author: OLSZEWSKI, Judge:

text:
    552 A.2d 310
    Kathleen WUNDER, Appellee, v. Charles D. FAZIO, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 15, 1988.
    Filed Jan. 12, 1989.

      Bernard V. DiGiacomo, Conshochocken, for appellant.
    Diane M. Zabowski, Collegeville, for appellee.
    Before OLSZEWSKI, BECK and JOHNSON, JJ.
   OLSZEWSKI, Judge:

Appellant, Charles D. Fazio, appeals from an order dismissing his petition to vacate a support order. Appellant urges that the trial court erred in dismissing the petition to vacate because the support order requires a $40 a week payment for a child over the age of eighteen years who has no learning disability and who attends business school. We affirm.

The subject of the support order, Renee Kaas, was born out of wedlock on November 4, 1967, to appellant and appellee, Kathleen Wunder. Ms. Kaas graduated from high school in June, 1987, and is enrolled in The Lansdale School of Business. She is a full-time student in an eighteen-month associate degree program that she expects to complete in January, 1989. The tuition for the program is $7,193. Ms. Kaas earned $5,300 in 1987 and received $2,625 in loans.

Ms. Wunder and her husband, who support eight children, earned $34,000 in 1987. In the same year, appellant earned $50,000 and supported his wife and two children.

In March, 1985, appellant’s support payment for Ms. Kaas was modified to $40 per week. On July 31, 1987, appellant petitioned the court to vacate the support order. Exceptions were filed to a master’s order recommending dismissal of the petition. On June 24, 1988, the trial court entered an order upholding the denial of the petition to vacate. This appeal followed.

Appellant contends that the trial court erred “in refusing to vacate a support order requiring payment for a person over the age of 18 years, who has graduated from high school, has no learning disability and is attending business school[.] ” Appellant’s brief at 3. When reviewing child support cases, we will not disturb the trial court’s order unless there is insufficient evidence to sustain it or the court abused its discretion in fashioning the award. Kopp v. Turley, 359 Pa.Super. 106, 109-110, 518 A.2d 588, 590 (1986), quoting Fee v. Fee, 344 Pa.Super. 276, 279, 496 A.2d 793, 795 (1985).

Our standard for evaluating support for an adult child who wishes to pursue post-high school education is as follows:

In Lederer v. Lederer, 291 Pa.Super. 22, 435 A.2d 199 (1981), the court wrote:
It is settled law in Pennsylvania that in absence of an agreement to educate “a father has no duty to aid in providing a college education for his child, no matter how deserving, willing or able a child may be, unless the father has sufficient estate earning capacity or income to enable him to do so without undue hardship to himself.” Emrick v. Emrick, 445 Pa. 428, 430-31, 284 A.2d 682 (1971); Hutchinson v. Hutchinson, 263 Pa.Super. 299, 300, 397 A.2d 1218, 1219 (1979). However, a support order may be entered against a parent for a child’s college education, even in the absence of an agreement to support the child past the age of eighteen, as long as this obligation would not result in undue hardship to the parent. Brake v. Brake, 271 Pa.Super. 314, 413 A.2d 422 (1979).
Id., 291 Pa.Superior Ct. at 24-25, 435 A.2d at 200-01. The child in question must also possess the aptitude and the desire to successfully complete the course of studies he has chosen to pursue. Kopp [v. Turley, 359 Pa.Super. 106, 110, 518 A.2d 588, 590 (1986)].
... [T]his responsibility is not based upon the child’s inability to support himself. However, we recognize that many children contribute to the cost of their own education. Therefore, trial courts may consider an adult child’s current earnings when determining the parent’s support obligation for post-high school education expenses.

DeWalt v. DeWalt, 365 Pa.Super. 280, 287, 529 A.2d 508, 512 (1987).

We note that appellant attempts to draw a distinction between support for college and support for trade school. We have declared, however, that a parent’s obligation to provide education expenses is not dependent on what type of post-high school training the child pursues. Kopp, supra. “Rather, the determination is to be made on the basis of whether the child possesses the aptitude and the desire to successfully complete the course of studies the school provides.” Id., citing Lederer, supra; Commonwealth ex rel. Ulmer v. Sommerville, 200 Pa.Super. 640, 190 A.2d 182 (1963).

Instantly, the trial court determined as follows:

The Lansdale School of Business (LSB) is accredited by the Association of Independent Colleges and Schools. The testimony of Eugene Kivett, the director of education at the school, revealed only minor functional differences between it and a Community College.
Fazio claims Renee’s high school grades show she is not willing and able to complete college. The facts are to the contrary; she commenced her present course within two months of high school graduation and demonstrated sufficient aptitude to be accepted by the school. Moreover, she has maintained better than passing grades in the two terms so far graded.
Fazio has sufficient income and estate so no undue burden has been placed on him. In Deiley [v. Deiley, 281 Pa.Super. 288, 422 A.2d 172 (1980)], a father’s gross income of $31,000 a year was adequate to require support by him of an 18 year old college student. Fazio earns $50,000 a year and has only his wife [and two children] to support so an order of $40/week is no burden.
Other relevant factors in determining the amount of support are earning capacity of the nonpaying parent and whether the nonpaying parent is currently being supported by a spouse. Lascheid v. Hoover, 278 Pa.Super. 261, 264, 420 A.2d [530, 532] (1980). The earning capacity of Renee’s mother is minimal and there are eight children to support. Her husband’s earnings are less than half of Fazio’s.

Opinion at 3-4.

Based on the foregoing, we do not believe that the trial court abused its discretion in ordering appellant to pay $40 per week for Ms. Kaas’ education expenses. The record reflects that Ms. Kaas is eager and diligent regarding her studies. Further, she contributes significantly to her education. Finally, appellant’s minimal support obligation certainly does not result in undue hardship to him or those whom he supports.

The order of the trial court is affirmed.


author: DEL SOLE, Judge : MONTGOMERY, Judge

text:
    552 A.2d 668
    William C. MARTIN, III and Louise Martin, His Wife, v. Robert R. RECKER, Individually and d/b/a Recker Transfer Company, Appellant. William C. MARTIN, III and Louise Martin, His Wife, v. Linda RONSTADT, Peter Asher Management, Inc., a Corporation, Jess S. Morgan & Co., Inc., a Corporation, DiCeasare/Engler/Stanley Theater Company, a Corporation Clark Transfer Company, Inc. a Corporation Showco, Inc., Mercy Hospital of Pittsburgh, a Nonprofit Corporation. Appeal of SHOWCO, INC. William C. MARTIN, III and Louise Martin, His Wife, Appellants, v. Robert R. RECKER, Individually and D/B/A Recker Transfer Company. William C. MARTIN, III, and Louise Martin, His Wife, Appellants, v. Linda RONSTADT, Peter Asher Management, Inc., a Corporation Jess S. Morgan & Co., Inc., a Corporation, DiCeasare/Engler/Stanley Theater Company a Corporation, Clark Transfer Company, Inc., a Corporation, Showco, Inc., Mercy Hospital of Pittsburgh, a Nonprofit Corporation.
    Superior Court of Pennsylvania.
    Argued June 3, 1987.
    Filed Dec. 13, 1988.

      John M. Silverstri, Pittsburgh, for appellant in No. 1009 and appellee in No. 1049.
    David J. Obermeier, Pittsburgh, for appellant in No. 1019 and appellee in No. 1059.
    Jon L. Friedman, Pittsburgh, for appellants in Nos. 1049 and 1059, and appellees in Nos. 1009 and 1019.
    Before DEL SOLE, POPOVICH and MONTGOMERY, JJ.
   DEL SOLE, Judge :

Presented for our review are cross-appeals arising from a personal injury action. Among other issues, we are asked to consider the propriety of the trial court’s charge as it relates to the doctrines of assumption of the risk and vicarious employer liability. We will also address the applicability of the jurisdictional immunity found under the Workmen’s Compensation Act.

The underlying action was commenced following an accident in which plaintiff, William C. Martin, sustained injuries while loading equipment onto a tractor trailer. The incident occurred on the evening of November 18, 1982 in the parking lot adjacent to the Stanley Theater following a concert by Linda Ronstadt. Mr. Martin and his wife brought suit against numerous parties. In an effort to understand the relationship of these parties and their potential responsibility for the injuries suffered by the plaintiffs, a complete summary of the facts is necessary.

In 1982 singer Linda Ronstadt was on tour bringing her show to various cities. In regard to her performance at the Stanley Theater in Pittsburgh, Pennsylvania, a contract was entered into between DiCeasare-Engler Productions and Linda Ronstadt by her personal manager Peter Asher. This contract set forth the performer’s various needs for the show, which DiCeasare-Engler as the promoter, would provide. Attached to the contract was a rider containing specific requirements for the sound and light systems. In addition to other items, it identified the number of track loaders and stagehands which would be needed. The details of the rider were authored by Showco, Inc. (Showco), the company responsible for the lighting and sound systems for the Ronstadt tour. The equipment needed to facilitate the lighting and sound was hauled from city to city by Clark Transfer, which had entered into an agreement with Ms. Ronstadt to perform this service.

Prior to the date set for the concert in Pittsburgh, DiCeasare-Engler set out to arrange for stagehands and loaders to be present for the loading and unloading of the trucks which were carrying the equipment for the show. Mr. Robert Recker of Recker Transfer Company (Recker) was contacted by an employee of DiCeasare-Engler and arrangements were made to have a number of men available to handle the loading and unloading tasks. These individuals unloaded the concert equipment without incident on the morning of the show. Some time later that evening the men hired by Recker Transfer Company arrived at the Stanley Theater to begin reloading the equipment onto the tractor trailers.

William Martin was an employee of Recker and was one of the men assigned to work the night of November 18, 1982 as a “loader.” Also present that evening was an employee of Showco who instructed the loaders where to place the equipment in the trailers. The tractor trailers used to haul the concert equipment came with a ramp which was typically set in place by a loader. On the evening of the concert the loaders walked up this ramp and loaded the trailer with Showco’s lighting and sound equipment. In packing the trailer that evening space was lost and the trailer became filled with boxes which were arranged in columns. To facilitate the packing of the last remaining column the ramp was pulled out in such a manner that the lip of the ramp rested on the doorjamb of the trailer. Two or three more boxes were then placed inside the trailer until only one space remained empty at the top right side of the rear of the trailer. There was some dispute between Mr. Recker and an employee of Showco as to whether the box involved in the accident would fit into the remaining space. Mr. Recker left the area and the Showco employee instructed the loaders to place the box into the empty area. The box weighing approximately 200 pounds was then rolled up the ramp where Mr. Martin was standing with his left foot on the doorjamb of the trailer and his right foot on the ramp. As Mr. Martin and another loader proceeded to lift the box and shove it into its space, the ramp left the base of the truck and Mr. Martin fell. He landed on his feet but was later knocked to the ground when his head was struck by the center of the box. Thereafter, Mr. Martin was taken to The Mercy Hospital of Pittsburgh where he was examined and released.

Subsequent to the accident, two separate lawsuits were filed by Mr. Martin and his wife. The first named as the defendant Robert Recker, individually and d/b/a Recker Transfer Company. The second suit was brought against Linda Ronstadt, Peter Asher Management, Inc., Jess S. Morgan and Co., Inc. (Ms. Ronstadt’s business manager), DiCeasare/Engler/Stanley Theater Company, Clark Transfer Company, Showco, Inc., and The Mercy Hospital of Pittsburgh. The two actions were consolidated for trial. A jury trial was held after which a verdict was entered in favor of the plaintiffs, Mr. and Mrs. Martin, and against Recker and Showco. The jury found plaintiff to be 30% negligent, Showco 45% negligent and Recker 25% negligent. The jury verdict was molded by the court after which post-trial motions were filed and denied. Appeals filed by Mr. and Mrs. Martin, Showco and Recker have been consolidated for purposes of this appeal.

We begin our review with an examination of the trial court’s instructions and conclude that the charge given to the jury on causation was adequate. The trial court’s decision to refuse Showco’s requested jury instruction on the doctrine of assumption of the risk cannot be cited as error in the instant case.

Initially it is appropriate to note that the defense of assumption of the risk has been abolished by statute in certain types of cases. 77 P.S. § 41 provides in relevant part:

In any action brought to recover damages for personal injury to an employe in the course of his employment, or for death resulting from such injury, it shall not be a defense—

(b) That the employe had assumed the risk of the injury The facts indicate that Martin was employed by Recker. As an employer Recker had the statutory duty to obtain insurance to insure the payment of workmen’s compensation benefits for those so entitled. Recker neglected to obtain compensation insurance, thus Martin was able to institute a suit for damages at law. Section 501 of the Workmen’s Compensation Act provides that whenever “any employer fails to secure the payment of compensation under this act ... the injured employe or his dependents may proceed either under this act or in a suit for damages at law as provided by article II.” 77 P.S. § 501. The reference in § 501 to article II of the Act applies to the above quoted § 41 which abolished the defense of assumption of the risk. Accordingly, Recker as the employer of Martin was not entitled to a charge that Martin assumed the risk of working on the ramp that evening.

To determine whether the provisions of the Workmen’s Compensation Act including those abolishing the defense of assumption of the risk apply to the defendant Showco, it must be resolved whether Showco was an employer of Martin. On the one hand Showco seeks to have the jury charged that Martin assumed the risk of his working conditions, however as seen above such a charge would be inappropriate if Martin were an employee of Showco. On the other hand Showco also argues in this appeal that the trial court erred when it failed to grant Showco leave to amend its New Matter to plead the workmen’s compensation defense on the basis that Showco and Martin enjoyed an employer-employee relationship. Showco’s attempt to argue in the alternative is not new to this area of the law. Nearly 60 years ago Mr. Justice Kephart wrote about a similar perplexing situation:

This appeal by McDonald presents an oft recurring difficulty. On the one hand we have persons before us, such as Levinson, endeavoring to escape the effect of the Compensation Act so that they will not be compelled to pay compensation or carry insurance, and, on the other hand, as here, when faced with liability at common law, they strive vigorously to come under the sheltering protection of the act. Appellee is now endeavoring to the latter as a statutory employer.

McDonald v. Levinson Steel Co., 302 Pa. 287, 291-292, 153 A. 424 (1930).

In an attempt to resolve the status of the relationship between Showco and Martin we must remain mindful that the question of whether the facts constitute an employment relationship for workmen’s compensation purposes is a question of law. English v. Lehigh County Authority, 286 Pa.Super. 312, 428 A.2d 1343, 1348 (1981). For Showco to claim immunity under the Act it must be found to be either an “employer” of Martin as that term is defined in Section 21 of the Workmen’s Compensation Act or what has been described as a “statutory employer” under Section 52 of the Act.

Showco’s position in the instant action could not be said to be that of a statutory employer. Section 52 of the Act provides:

An employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employe or contractor, for the performance upon such premises of a part of the employer’s regular business entrusted to such employe or contractor, shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employe.

77 P.S. § 52

As noted in previous court decisions this provision typically applies to the construction industry. It speaks to a situation where a general contractor subcontracts work to others, and the injured employee of the subcontractor seeks to bring an action in trespass against the general contractor. Id., 286 Pa.Superior Ct. at 319, 428 A.2d at 1347, citing, McDonald v. Levinson Steel, supra. Although this Section is inapplicable to the instant factual situation, Showco may nevertheless seek to be an “employer” under the Act who has borrowed another’s employee.

The Act defines the term “employer” as:

The term ‘employer’ as used in this act, is declared to by synonymous with master, and to include natural persons, partnerships, joint-stock companies, corporations for profit, corporations not for profit, municipal corporation, the Commonwealth, and all governmental agencies created by it.

77 P.S. § 21

The term “employee” is defined in Section 22 of the Act. It provides in relevant part:

The term ‘employe’ as used in this act is declared to be synonymous with servant, and includes—
All natural persons who perform services for another for a valuable consideration exclusive of persons whose employment is casual in character and not in the regular course of business of the employer ...

77 P.S. § 22 (emphasis added).

Further, an employer may be deemed to be a “borrowing employer” for workmen’s compensation purposes if the employee becomes subject to the direction and control of the party to whom he or she is lent. Ashman v. Sharon Steel Corp., 302 Pa.Super. 305, 448 A.2d 1054 (1982). A borrowing employer must control or have the right to control the borrowed employee not only with regard to the work to be done but also with regard to the manner in which it is performed. English v. Lehigh County Authority, supra.

Without reaching the question of Showco’s control over Martin, we conclude that Martin could not be found to be Showco’s employee since his services were casual and not in the regular course of Showco’s business. See: Dews v. Shmukler, 199 Pa.Super. 417, 185 A.2d 607 (1962); Davis v. City of Philadelphia, 153 Pa.Super. 645, 35 A.2d 77 (1944). Showco is a lighting and sound company. It contracted with Linda Ronstadt to provide “sound reproduction and lighting and other related services, materials and facilities” for the Ronstadt tour. Incidental to this service Showco employees directed Recker’s workers where to place the lighting and sound equipment in the trailers to insure their fit. before transportation to the next concert location. Showco was not in the business of loading and unloading trucks. The transportation of the equipment was handled by Clark Transfer in accordance with its contract with Linda Ronstadt. The loading of the equipment was not the responsibility of Showco. As per its contract agreement with Ms. Ronstadt, Diceasare-Engler arranged to have Recker’s employees engage in the loading and unloading tasks.

The term casual denotes a fortuitous happening, an irregular occurrence which is occasional, incidental, temporary, haphazard, unplanned and with no fixed duration of time. Dobrich v. Pittsburgh Terminal Coal Corporation, 145 Pa.Super. 87, 91, 20 A.2d 898 (1941). The exclusion from coverage of persons whose work is casual and “not in the regular course of the business of the employer” is intended to distinguish the primary income-producing activity of an employer from other operations which, while perhaps necessary, are clearly incidental to the main function of the business enterprise. Industrial Valley Bank & Trust Co. v. Workmen’s Compensation Appeal Bd., 16 Pa.Cmwlth. 420, 332 A.2d 882, 884 (1975). The facts of this case clearly show that Martin’s services for Showco were casual in character and not in the regular course of Show-co’s business. Accordingly, Martin was not an employee of Showco and Showco was not permitted to come under the immunity of the Act. [See discussion infra] Since Showco was not Martin’s employer, the abolition of the doctrine of assumption of the risk found in the Act at 77 P.S. § 41 is inapplicable. This finding, however, does not lead us to conclude that the trial court erred in refusing Showco’s requested jury instruction on assumption of the risk.

This court has recently held that the doctrine of assumption of the risk is still a viable defense in certain factual situations notwithstanding the enactment of the Comparative Negligence Act, 42 Pa.C.S. § 7102. Malinder v. Jenkins Elevator & Machine Co., 371 Pa.Super. 414, 538 A.2d 509 (1988). In Malinder the plaintiff was struck in the head by a freight elevator at his place of employment. The accident occurred when Malinder placed his head in an opening near the landing door in order to call to the elevator operator. Suit was brought by Malinder and his wife against Utica Insurance Company, which as the insurer of Malinder’s employer was required to inspect the elevator twice a year, and Allied Enterprises, the company retained by Utica to conduct the inspections. A jury trial was held at the conclusion of which the jury was instructed on comparative negligence. A requested charge on the defense of assumption of the risk was refused. A verdict was returned against both defendants, however, the award was proportionately reduced as a result of the jury’s determination that Malinder was 80% contributorily negligent. On appeal before an en banc panel of this court, the judgment was reversed and the case remanded for entry of a judgment n.o.v. in favor of Utica and against the Malinders.

The Superior Court reached its decision by comparing the facts in Malinder with the facts and holding found in Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983). Therein, the Supreme Court was presented with a plaintiff who slipped and fell on ice in a parking lot. The court found that the location of the ice was both obvious and known to the plaintiff who nevertheless chose to encounter its slippery condition. The court remarked that the defendants, owners of the parking lot and chiropractic clinic which plaintiff was visiting, could have reasonably expected that the ice would have been avoided and accordingly, they owed no duty to warn of the ice on the parking lot. It was °held that the doctrine of contributory negligence had no place in the case since there was no negligence on part of the defendants; they owed plaintiff no duty of care. In conclusion the court ruled that the doctrine of assumption of the risk operated as a matter of law to preclude plaintiff from recovering.

The Malinder court found the facts in Carrender to be “indistinguishable” and held that as in Carrender the doctrine of assumption of the risk must apply as a matter of law. 371 Pa.Superior Ct. at 424, 538 A.2d at 514. The court in Malinder noted “that in both cases, not only were the dangers unchanging, obvious, and known by the plaintiffs, but the plaintiffs’ decisions to nevertheless accept the risk of the potential dangers were unreasonable and unnecessary.” At 371 Pa.Superior Ct. 425, 538 A.2d 514. This observation was made based upon Malinder’s testimony that he did not believe it was dangerous for him to place his head in the opening but that he knew he would be struck if the elevator was coming.

The facts of the case before this panel differ from those found in Carrender and Malinder. The dangerous condition of the ramp in this case was not obvious and known to Martin. See: Malinder v. Jenkins Elevator & Machine Co., supra, 371 Pa.Superior Ct. at 514-515 n. 1, distinguishing Ferencz v. Milie, 517 Pa. 141, 535 A.2d 59 (1987). Martin’s testimony reveals that he was unaware of the dangerous condition of the ramp. At trial he was asked by counsel:

Q. You weren’t concerned about the ramp falling off the trailer bed?

To which he responded:

A. It never entered my mind, no.

N.T. 11-21-85 at 21.

On cross examination Martin was questioned:

Q. Did you expect the ramp to be butted that evening down at the Stanley Theater?

He countered:

A. I never gave it no thought. I had no qualms about the ramp being where it was at. I was six months into it [the job], and I was used to it [the ramp] being in and out.

N.T. 11-21-85 at 56.

Since Martin did not perceive that the ramp placement was dangerous, his decision to walk up the ramp that evening was not an acceptance of the risk of its potential danger. Under these circumstances it was appropriate for the court to refuse Showco’s request for a charge of the defense of assumption of the risk.

Showco also objects in this appeal to the court’s failure to instruct the jury on the immunity afforded employers under the Workmen’s Compensation Act Along with this allegation, Showco contends that it should have been permitted the opportunity to amend its answer to include this defense. We find no merit in these challenges presented by Showco.

As previously discussed, as a matter of law Showco was not the employer of Martin as those terms are defined under the Act. Therefore, the immunity afforded employers under the Act was not available to Showco and the trial court’s decision refusing to permit Showco to amend its answer to raise this defense was not error. The Supreme Court’s recent decision in LeFlar v. Gulf Creek Industrial Park No. 2, 511 Pa. 574, 515 A.2d 875 (1986) does not mandate a different conclusion.

In LeFlar it was held that the Workmen’s Compensation Act is not a defense which can be waived if not timely pled since the Act deprives common pleas courts of jurisdiction over common law actions in tort based on the alleged negligence of one’s employer. Id,., 511 Pa. at 581, 515 A.2d at 879. In LeFlar the jury was instructed on the factors which are to be considered in determining whether the plaintiff was an independent contractor or an employee. The Supreme Court noted that:

Because the jury was charged on two alternative theories which could give rise to liability for the Appellant, one involving the decedent's status as an employee, the other as an independent contractor, it cannot be determined from the verdict what jury determination was made as to his status.

Id., 511 Pa. at 583, 515 A.2d at 880 (emphasis added). Because the court was unable to conclude based upon the jury’s verdict whether it found the appellant to be the decedent’s employer, the case was remanded to the trial court for a determination of the decedent’s status.

In the instant case we are not presented with a similar situation. Showco could not be found to be the employer of Martin as a matter of law. Therefore, although an amendment to Showco’s answer to plead the defense of the Act would not have been untimely, it would have been inappropriate in this case.

Further, contrary to the position taken by Showco, the trial court did not charge the jury in a manner which would permit it to conclude that Showco was Martin’s employer. The jury was read the following instructions to which Showco objects:

The plaintiff, William C. Martin, III, claims that Gilbert Recker, Barry Goldstein and Daniel Wilson were the servants of the defendant, SHOWCO, Inc., which is denied by SHOWCO. It is for you, the jury, to determine from the evidence in this case the nature of the relationship, if any, then and there existing between the defendant, SHOWCO, and Gilbert Reeker, Daniel Wilson and Barry Goldstein. If you find that said persons were the servants of the Defendant SHOWCO, and at the time of the occurrence were acting in furtherance of SHOWCO’S interest, activities, affairs or business, then Defendant SHOWCO, Ine. is liable for any negligent acts or omissions of said persons, Gilbert Reeker, Barry Goldstein or Daniel Wilson.
Now, a person may be the servant of two masters not joint employers at one time as to one act provided that the services to one does not involve abandonment of the services to the other. If you find that Gilbert Reeker, Barry Goldstein and Daniel Wilson were subject to the control of both defendants, Robert Reeker, individually and d/b/a Reeker Transfer Company, and SHOWCO, Inc. and that their acts were within the scope of their duties for both defendants and that they were serving the interest of both defendants, then you may find both defendants liable. If, however, you find that Gilbert Reeker, Barry Goldstein and Daniel Wilson were under the sole control of one defendant and were serving the interest and purposes of that defendant only, then only that defendant alone can be held liable.

N.T. 12/10, 20/1985 at 54-57, 59-60.

These instructions do not seek from the jury a determination of whether Martin’s status was that of an employee of Showco. Rather the court was charging the jury as to Showco’s potential responsibility under traditional tort principles. Although Showco was not Martin’s employer so as to bring Showco within the responsibility contemplated by the Workmen’s Compensation Act, Showco did remain open to liability under traditional tort principles. See: Ashman v. Sharon Steel Corp., 302 Pa.Super. 305, 448 A.2d 1054, 1060 (1982). Since we find that the court’s charge was supported by the evidence and because it permitted the jury to determine whether Showco was liable based upon prineipies of negligence, we reject Showco’s characterization of the count’s charge as erroneous.

Further we must deny Showco’s claim that the trial court erred in allowing the Martins’ to cross-examine sound engineer Patrick Farrel. This issue is clearly without merit. The questions posed on cross-examination did not exceed the scope of the direct examination. Therefore, Showco’s claim in this regard must be dismissed.

With regard to the matter of damages, the Martins, complain that the trial court erred in precluding them from introducing evidence of past wage loss and medical expenses. After being presented with a motion in limine the trial court found that the requirements of the No-Fault Motor Vehicle Insurance Act applied to the case and thus evidence of William Martin’s lost wages and medical expenses could not be presented to the jury. The Martin’s contest this ruling on the basis that William Martin was not entitled to No-Fault benefits since he was not a “victim” as that term is defined in the Act. Although it is appropriate to preclude a plaintiff from introducing at trial evidence of medical expenses or lost wages which are compensable under the Act, we agree with the Martins’ contention that the facts herein indicate that these benefits were not available in this case since William Martin was not a “victim” under the Act.

A victim for purposes of recovery under the Act is defined as “an individual who suffers injury arising out of the maintenance or use of a motor vehicle.” 40 P.S. § 1009.103. The statute further defines, in pertinent part, the phrase “maintenance or use” in the following manner:

Maintenance or use of a motor vehicle means maintenance or use of a motor vehicle as a vehicle, including, incident to its maintenance or use as a vehicle, occupying, entering into, or alighting from it. Maintenance or use of a motor vehicle does not include:
(B) Conduct in the course of loading or unloading a motor vehicle unless the conduct occurs while occupying entering into, or alighting from it.

40 P.S. § 1009.103

The fact that William Martin was engaged in the act of loading the vehicle is undisputed. The trial court also found that Mr. Martin was “occupying” the trailer while participating in the loading activity. We disagree. William Martin was not occupying, entering into or alighting from the vehicle when the accident occurred. The testimony elicited at trial revealed that Mr. Martin was standing with one foot on the doorjamb of the rear portion of the trailer and the other foot on the floor of the ramp leading to the trailer. The trailer was packed in such a manner that it was filled with boxes and crates up to the doorjamb. Mr. Martin maintained his position on the ramp while attempting to lift a box into a space near the top right side of the trailer. At that time the ramp slipped and Mr. Martin sustained his injuries.

These facts demonstrate that William Martin cannot be considered a victim for purposes of the No-Fault Act. There was no testimony taken at trial which would lead to the conclusion that Mr. Martin was attempting to enter the trailer when the accident occurred. Similarly William Martin was not occupying the trailer at the time of the accident. “The common meaning of the word ‘occupy’ is ‘to fill up (a place or extent)’ or ‘to hold possession of.’ ” Dull v. Employers Mutual Casualty Co., 278 Pa.Super. 569, 420 A.2d 688, 689 (1980). The trailer was filled with crates and boxes up to the doorjamb. There was simply no room into which Mr. Martin could attempt to enter the trailer, nor could he occupy it. The term “alight” likewise does not describe Mr. Martin’s activity at the crucial time. William Martin was not leaving the trailer or climbing down from it at the time the ramp fell. As stated in Cerrato v. Holy Redeemer Hospital, 342 Pa.Super. 551, 493 A.2d 728, 729 (1985):

... the Act defines the extent of an insured’s coverage in terms of the period during which he is in physical contact with a motor vehicle, that is, his entrance into, occupation of, ánd exit from it____ The legislature has also mandated, however that insurance coverage not extend to a separate act, that of ‘loading or unloading a motor vehicle.’

The act of placing one foot on the doorjamb at the rear of the trailer is not sufficient contact in view of all the circumstances so as to constitute Mr. Martin’s entrance into, occupation of or exit from the trailer. The facts state otherwise. Mr. Martin was merely undertaking the separate task of loading the trailer at the time of the accident. Accordingly, we find that the trial court incorrectly ruled that the No-Fault Act applied to the instant case and we award the Martins a new trial solely on the issue of damages.

Showco's final issue presented on appeal which questions the trial court’s action in molding the verdict will not be addressed in this Opinion in light of our decision that a new trial on the issue of damages should be awarded. Likewise, the concerns of the defendant, Clark Transfer, that it may be wrongly subject to a new trial, do not require attention since the award of the new trial in this case is limited solely to the issue of damages.

POPOVICH, J., concurs in the result.

MONTGOMERY, J., files a concurring and dissenting opinion.

MONTGOMERY, Judge

concurring and dissenting:

Although I concur in the majority’s disposition of the issues raised by the Defendant-Appellants Showco and Recker, I dissent from that portion of the opinion which resolves the sole issue raised by the Martins in their cross-appeal. In my judgment, it is not necessary for us to reach this issue as the Martins do not wish to press the issue in the event the cross-appellants are denied relief.

In the Martins’ brief, it is written: “In the event a new trial is granted to Defendants, Plaintiffs request that they be granted a new trial and be permitted to introduce evidence of Plaintiffs wage loss and medical expenses.” (Emphasis in original.) Also, in their conclusion at page 82 of their brief, the Martins write:

In the event this matter is remanded for a new trial as prayed for by Appellant, Showeo, Inc., William C. Martin, III, and Louise Martin pray that they be awarded a new trial and that they be permitted to introduce evidence of Mr. Martin’s wage loss and medical expense suffered as a result of the accident giving rise to the within action.

In my view, these statements are sufficiently specific for us not to reach the Martins’ no-fault issue. This is especially true since the award of a new trial has been granted by the majority solely because of the resolution of the issue raised by the Martins. Forcing the Martins to retry their case, when they are perfectly willing to accept the verdict awarded by the jury, will expose them to further unnecessary delay and significant unwarranted pressure to settle their claims with the defendants. Additionally, I find no reason to increase the burden of an already over-burdened trial court docket.

I would, therefore, affirm the judgment entered on the verdict and dismiss the cross-appeal by the Martins.

       This case was reassigned to this writer on June 22, 1988.

      . I note however, even if Showco was found to be Martin’s employer the record does not reflect whether Showco maintained the required workmen’s compensation coverage.

        . Allied Enterprises did not participate in the appeal before the en banc panel.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. §§ 1009.101 et seq., repealed by the act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984.


text:
    552 A.2d 677
    David KLEBANOFF, M.D., Appellee, v. Michael McMONAGLE, Joseph Wall, Howard Walton, Thomas McIlhenny, Pasquale Varallo, John Stanton and Patricia McNamara, Appellants.
    Superior Court of Pennsylvania.
    Argued Sept. 14, 1988.
    Filed Dec. 23, 1988.
    Reargument Denied Feb. 1, 1989.

      Thomas J. Short, Oreland, for appellants.
    David I. Bookspan, Philadelphia, for appellee.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   DEL SOLE, Judge:

This is an appeal of a permanent injunction preventing defendants and others with notice from picketing or demonstrating in the street directly in front of the home of Appellee, Dr. David Klebanoff. Appellants are members of the “pro-life” movement, who had picketed for almost a year in front of Dr. Klebanoff s home where he lives with his wife and young son.

A temporary injunction was issued by the Court of Common Pleas of Montgomery County in April, 1987 and a preliminary injunction by the same court was entered in October, 1987. In March, 1988 the court entered a final decree ordering a permanent injunction finding that limiting the defendants’ conduct was necessary to prevent immediate and irreparable harm, that greater injury would occur by refusing the injunction than granting it, and that the Klebanoffs had no adequate remedy at law.

On appeal, the picketers have challenged the injunction as violative of their rights under the First and Fourteenth Amendments of the U.S. Constitution and under Article 1, Section 7 of the Pennsylvania Constitution. They also argue that this decree is an abuse of the trial court’s discretion because of these constitutional transgressions.

In this case of first impression, we hold that courts of this Commonwealth can enjoin activity which violates an individual’s residential privacy, and that the injunction in this case, which restricts the place where the expressive activity can occur, is a proper time, place and manner restriction. Therefore, the injunction is permissible under both the United States and Pennsylvania Constitutions. We further hold that, given the particular facts of this case, the entry of this decree was not an abuse of the trial court’s discretion.

Although both the Pennsylvania and United States Constitutions protect the right of individuals to disseminate their views on religious, political and ethical matters, “even protected speech is not equally permissible in all places and at all times.” Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 799, 105 S.Ct. 3439, 3447, 87 L.Ed.2d 567 (1985). It is well-settled that, under the First Amendment, expressive activity may be subject to reasonable time, place and manner restrictions. Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 101 S.Ct. 2559, 2564, 69 L.Ed.2d 298 (1981).

The more difficult question is what constitutes a reasonable restriction on the exercise of First Amendment Rights. A number of doctrines have developed in constitutional jurisprudence which are used in scrutinizing the reasonableness of a given restriction and which require balancing First Amendment rights and their elevated position in the hierarchy of protected values with the legitimate interests of government or individual civil rights. A recent decision of the Supreme Court, Frisby v. Schultz, — U.S. —, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988), employed those traditional doctrines in upholding the constitutionality of a city ordinance banning picketing aimed at a private residence in the face of a similar First Amendment challenge by antiabortion activists who were picketing a doctor’s home. This precedent provides strong support for our decision in this case. We will apply the Frisby analysis in scrutinizing the injunction permanently barring Appellants from picketing on the street directly in front of Dr. Klebanoff’s residence.

We start with the long-established doctrine that public streets and sidewalks, “have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Hague v. C.I.O., 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939). The standards by which limitations on speech must be evaluated differ depending on the character of the property at issue, and public streets have been typically referred to as the archetype of a traditional public forum, Perry Education Assn. v. Perry Local Educators’Assn., 460 U.S. 37, 44, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983). The Supreme Court recently emphasized in Frisby that all streets, including residential streets and sidewalks, are public fora, Frisby, 108 S.Ct. at 2500, and the right to use these fora for public assembly and discourse may be limited only for weighty and substantial reasons. Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972). In this quintessential public forum, injunctions which effect the time, place and manner of expression are proper if they are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. Perry Education Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 45, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983).

The injunction here bans all picketing of Dr. Klebanoff s house without reference to the content or subject matter of the protest. The injunction contains no invitation to subjective or discriminatory enforcement, and is therefore, under all settled criteria, content-neutral, Grayned, 408 U.S. at 113, 92 S.Ct. at 2302.

Furthermore, this injunction serves to protect a substantial interest recognized in both Pennsylvania law, Hull v. Curtis Publishing Co., 182 Pa.Super. 86, 95, 125 A.2d 644 (1956), and in the United States Constitution, Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). It protects what has been variously called the individual’s right of privacy, the right to be free from intrusion upon one’s solitude or seclusion, or the right to be left alone. McMullan v. Wohlgemuth, 453 Pa. 147, 308 A.2d 888 (1973) (protection of the privacy of welfare recipients); Harris by Harris v. Easton Pub. Co., 335 Pa.Super. 141, 153, 483 A.2d 1377 (1984), (discusses the adoption in Pennsylvania of the Restatement of Torts, 3rd § 652b, concerning intrusion on seclusion); F.C.C. v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 3040, 57 L.Ed.2d 1073 (1978), (discussing the right to be left alone in the privacy of one’s own home).

The public’s interest in protecting the well-being, tranquility, and privacy of the home is of the highest order, Carey v. Brown, 447 U.S. 455, 471, 100 S.Ct 2286, 2296, 65 L.Ed.2d 263 (1980). The home has been called “the last citadel of the tired, the weary, and the sick,” Gregory v. Chicago, 394 U.S. 111, 125, 89 S.Ct. 946, 954, 22 L.Ed.2d 134 (1969). The home serves to provide, among other things, a refuse from today’s complex society where we are inescapably captive audiences for many purposes. Rowan v. United States Post Office, 397 U.S. 728, 738, 90 S.Ct 1484, 1491, 25 L.Ed.2d 736 (1970). Normally, outside of the home, consonant with the Constitution, we expect individuals to avoid unwanted speech, “simply by averting [their] eyes.” Cohen v. California, 403 U.S. 15, 21, 91 S.Ct. 1780, 1786, 29 L.Ed.2d 284 (1971). But such avoidance within the walls of one’s own house is not required. Therefore, the courts have repeatedly held that individuals are not required to welcome unwanted speech and the State may act to avoid such intrusions into the privacy of the dwelling place, Frisby, 108 S.Ct. at 2502.

The trial court found that picketing started on a Sunday afternoon with twenty to thirty people parading up and down the sidewalk within five feet of where Dr. Klebanoff was sitting. They carried signs stating among other things, that “Dr. Death Lives Here.” The picketers shouted comments to Dr. Klebanoff, and at least one attempted to taunt him into a physical confrontation. Neighbors began to gather because of the commotion and Dr. Klebanoff’s son was awakened from his sleep. Mrs. Klebanoff kept their son inside with the Shades drawn, despite the beautiful weather because of the picketing.

Many other Sunday afternoon demonstrations followed this first incident and they involved usually five to seven police officers who were dispatched because of the volatility of the situation. This culminated in December, 1987 when Mrs. Klebanoff, who was home alone preparing for a holiday meal, noticed a strange automobile parked outside her house for 15-20 minutes. She was nervous and afraid and telephoned her neighbors and her husband to come to her aid. Her husband returned to find about forty people, protestors, neighbors and police, congregated outside the house, and a television reporter came to the door. Mrs. Klebanoff became so emotionally distraught that she could not prepare her holiday meal, and the police advised that her guests should arrive an hour later than planned because of the protestors. Mrs. Klebanoff became afraid to remain at home alone on Sundays and felt compelled to leave her house for the sake of her son, and her own emotional stability when no one else was in the house. Dr. Klebanoff was fearful that the demonstration would turn violent, because of threats he had received. In general, as the trial court stated, the protestors, “succeeded in their express aim to create a crisis in Dr. Klebanoffs life.” (T.C. Memo at 8).

The presence of the protesters also affected the life of the Klebanoffs neighbors who experienced, among other things, police escorts and questioning when driving along the street in front of their homes, requests by the police to remove their children from their play areas because of the picketers, protestors reaching into their car windows and calling Dr. Klebanoff a baby killer, and general chaos resulting in restricted activity for themselves and their families.

In sum, the trial court found that the picketing at the home of Dr. Klebanoff on numerous Sunday afternoons intruded upon the privacy of the Klebanoff household to an enormous degree. The devastating effect of the targeted picketing on the quiet enjoyment of their home was documented by their own testimony and the testimony of their friends and neighbors. The U.S. Supreme Court has stated, “The tensions and pressures may be psychological, not physical, but they are not, for that reason, less inimical to family privacy and truly domestic tranquility.” Frisby, 108 S.Ct. at 2503. The picketers avowed purpose, to create a crisis in Dr. Klebanoffs life, (N.T. at 79, June 16, 1987) caused emotional stress not only to Dr. Klebanoff, but to his wife as well. They interfered with family holidays and family routines, waking their son from his daily nap and forcing the parents to keep the child inside in fine weather to avoid the picketers. The family is figuratively, and perhaps literally, trapped within the home, and held captive. “The First Amendment permits the government to prohibit offensive speech as intrusive when the ‘captive’ audience cannot avoid the objectionable speech.” Frisby, 108 S.Ct. at 2503. Even a complete ban on all expressive activity in a traditional public forum is permissible if substantial privacy interests are being invaded in an essentially intolerable manner. Erznoznik v. City of Jacksonville, 422 U.S. 205, 210, 95 S.Ct. 2268, 2273, 45 L.Ed.2d 125 (1975). Such an intolerable invasion of the substantial individual interest in residential privacy exists here. Therefore, the injunction barring all picketing on the public street in front of the Klebanoff residence is permissible under the constitution.

It remains to be determined whether the court’s order is narrowly tailored and whether it leaves open ample alternative fora for the Appellants to communicate and disseminate their message.

An injunction is narrowly tailored to protect a significant public interest when its scope does not exceed that which is necessary to protect the interest involved. The permissible scope of the restriction also depends on where, in the spectrum from conduct to pure speech, the speech in question lies. As this court has stated in Rouse Philadelphia Inc. v. Ad Hoc '78, 274 Pa.Super. 54, 64, 417 A.2d 1248 (1979):

As a person’s activities move away from pure speech and into the area of expressive conduct they require less constitutional protection. As the mode of expression moves from the printed page or from pure speech to the commission of public acts the scope of permissible regulation of such expression increases.

For example, the Supreme Court overturned an injunction enjoining a community organization from distributing leaflets and pamphlets criticizing the real estate operations of a particular realtor as involving an impermissible restraint on First Amendment rights. Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971). In Austin, where pamphletting was involved, the Court would not countenance such a restraint although it was claimed that the pamphlets invaded the realtor’s privacy. The Court would not even evaluate the injunction to determine whether it was a reasonable regulation of protected speech because the injunction in question constituted prior restraint on the distribution of printed materials. Thus, the Supreme Court has been especially hostile to regulating the publication or distribution of printed or written materials because these are seen to be closer to pure speech.

In contrast, the Supreme Court affirmed the constitutionality of a regulation of the National Park Services forbidding overnight camping in Lafayette Park and the Mall although those wishing to protest the plight of the homeless claimed that the overnight sleeping was not simply conduct but symbolic expression and entitled to First Amendment protection. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). The Supreme Court also upheld a municipal ordinance which banned picketing outside school property when school was in session against a challenge by minority students who were picketing to protest alleged racial discrimination, Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). The closer the regulated activity is to conduct rather than to pure speech, the wider the scope of permissible regulation. If the expressive conduct comes into conflict with another legitimate public interest such as peace and order in the public parks and near school buildings, or an individual’s right to privacy, the reasonableness of the regulation limiting First Amendment rights will be scrutinized for its constitutionality.

Unlike Austin, where the distribution of printed material was banned, here the lower court enjoined picketing, which the Supreme Court has typically held to be in the nature of expressive conduct. Moreover, when regulating such expressive conduct, the Court in Grayned held that, “The nature of a place, the pattern of its normal activities, dictate the kinds of regulations of time, place or manner that are reasonable.” Grayned, 408 U.S. at 116, 92 S.Ct. at 2303. Given the character of the neighborhood, with its single-family houses and the pattern of normal activities which occur in this area, the injunction banning picketing in front of the Klebanoff’s is narrowly tailored because it does no more than protect the privacy of the Klebanoff’s family life. It permits them and their neighbors to continue their normal activities with their families and restores to them the normal enjoyment of their homes.

Much broader restrictions on expressive activities have been validated in the past for far less intrusive activities on far less substantial rights than the right to enjoy privacy in one’s own home. For instance, in Members of City Council v. Taxpayers For Vincent, 466 U.S. 789, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984), the Court upheld a municipal ordinance prohibiting the posting of signs on public property in the interest of eliminating visual blight. Again, in Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974), the Court held a city’s prohibition of political advertising on buses constitutional because such advertising interfered with the city’s interest in rapid, convenient and pleasant transit, (although commercial advertising was permitted). In this case, given the Commonwealth’s substantial interest in protecting the use and enjoyment of one’s own home, the injunction does no more than target the exact source of the evil it seeks to remedy. Frisby, 108 S.Ct. at 2502.

Because the First Amendment does not mean that speech may be completely suppressed by a time, place or manner restriction, even if it is narrowly tailored to protect a substantial interest, we must always determine if there are ample alternative means of communication. In fact, our Supreme Court in Hibbs v. Neighborhood Organization to Rejuvenate Tenant Housing, 433 Pa. 578, 252 A.2d 622 (1969), overturned an injunction barring protesters from picketing the home of Charles Hibbs as violative of the picketers’ First Amendment rights because, as the court stated, Hibbs conducted his real estate business in such a secretive manner that no other place was available for the protestors to communicate their views. As Justice Roberts stated in his concurrence, “[T]his is not a true case of residential picketing (since no other place was available where appellants could effectively communicate), the question of to what extent purely residential picketing may be proscribed is not before us.” Id., 433 Pa. at 581, 252 A.2d 622. The lack of an alternative situs for picketing thus made an otherwise narrowly tailored and reasonable injunction barring residential picketing, unreasonable.

Here, unlike Hibbs, Appellants have a myriad of other ways to communicate their views to Dr. Klebanoff and have in fact done so regularly and vociferously. (T.C. Opinion at 15). Dr. Klebanoff practices medicine and performs abortions at the Northeast Women’s Center where Defendants and others in the anti-abortion movement regularly demonstrate. He is also employed by a local medical practice that has five offices in and around the Philadelphia area and demonstrators have picketed outside one of these offices in northeast Philadelphia. (N.T. at 59, June 16, 1987). Appellants also have other methods of communicating other than demonstrating. They can and have distributed leaflets to the neighbors, and they can contact neighbors via telephone, mail, local publications or other local media. Appellants in this case have many outlets for their expressive activity, while the privacy and home life which is rightfully due Dr. Klebanoff and his family can only be realized in one place, their home.

Therefore, because this injunction constitutes a content-neutral, narrowly tailored restriction on the place and manner where Appellants may exercise their right to communicate and disseminate their views on Dr. Klebanoff’s abortion activities; and because there are a wide variety of alternative places and methods of communication, there is no constitutional impediment to this injunction which permanently enjoins the Appellants from picketing in front of the home of Dr. Klebanoff. We therefore affirm the trial court.

ORDER AFFIRMED.