author: JOHNSON, Judge:

text:
    624 A.2d 200
    COMMONWEALTH of Pennsylvania, v. David Allen LONG, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 19, 1993.
    Filed April 26, 1993.

      Robert D. Sebastian, Pittsburgh, for appellant.
    Scott A. Bradley, Asst. Dist. Atty., Pittsburgh, for Com. appellee.
    Before KELLY, JOHNSON and HESTER, JJ.
   JOHNSON, Judge:

David Allen Long appeals from the judgment of sentence entered following his convictions for Involuntary Manslaughter, Homicide by Watercraft, Recklessly Endangering Another Person, and Reckless Operation of Watercraft. We affirm.

On May 12, 1991, Mark Yates, the victim, went with his friends Rich Meyers, Melissa and Melinda Folmer, Heather Adams and Matt Austin to an abandoned pier on the shore of the Ohio River, a few miles north of the city of Pittsburgh, Pennsylvania. During that time, the victim quickly consumed two to three cans of beer. Shortly thereafter, a power boat operated by Long stopped offshore directly in front of the group of friends. Rich and Melinda swam out to the boat and climbed on board. The boat then headed off in the direction of Pittsburgh. A short while later, the boat returned with Rich and Melinda and the two friends swam safely to shore.

The victim and Melissa then attempted to swim out to the boat. The victim swam closer to Long’s boat than did Melissa. As the victim approached the boat and attempted to climb on board, Long pulled the boat away from him. This happened three times. Long then started making circles in the water in front of the victim causing waves 3-5 feet in height which swept over the victim’s head. Long caused the boat to circle several times, causing the victim to go under the water. When the victim was experiencing difficulty maintaining his head above the water, he started screaming for help. In response, Long and his companions on the boat started throwing beer cans at the victim. Finally, Long ceased circling and sped away, ignoring the victim’s cries for help.

After the boat departed from the scene, the victim’s friends entered the water and attempted to rescue him. Rich Meyers reached the victim but was unsuccessful in his efforts to save him. The victim sank beneath the water and was drowned.

The police were summoned to the scene and the victim’s friends described the events that led to the victim’s drowning and identified Long’s boat. The police subsequently ascertained Long’s identity. Long and his companions on the motor boat were summoned to the McKees Rocks police station the day after the incident to give statements about the victim’s death. Long was then arrested and charged with regard'to the victim’s death.

Following a bench trial before the Honorable Robert E. Dauer, Long was convicted on the present charges. Post-trial motions were denied and this appeal followed.

Long presents four issues for our review:

1. Whether the evidence presented at trial was sufficient to prove that Long’s actions were the legal cause of the victim’s death.
2. Whether the trial court erred in admitting a videotape which depicted the operation of Long’s boat.
3. Whether the trial court erred in admitting the testimony of the Commonwealth expert Richard Bradshaw.
4. Whether Long’s conviction can be sustained in light of the contradictory evidence presented by the witnesses at trial.

First, Long contends that the evidence presented at trial was insufficient to establish that his actions were the legal cause of the victim’s death. We disagree.

Our standard, in reviewing the sufficiency of the evidence, is “whether viewing the evidence in the light most favorable to the Commonwealth, as verdict .winner, and drawing all proper inferences favorable to the Commonwealth, the [fact finder] could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt. Commonwealth v. Badman, 398 Pa.Super. 315, 325-326, 580 A.2d 1367, 1372 (1990). Both direct and circumstantial evidence can be considered when assessing the sufficiency of the evidence. Commonwealth v. French, 396 Pa.Super. 436, 578 A.2d 1292 (1990). It is in light of this standard that we will address Long’s contentions.

First, Long divides his attack on the sufficiency of the evidence into several discrete sub-arguments, each of which attempts to refute the Commonwealth’s position that Long’s actions started a chain of causation which resulted in the victim’s death. It is undisputed that the Commonwealth must prove a direct causal relationship between the acts of a defendant and the victim’s death. Commonwealth v. Barnhart, 345 Pa.Super. 10, 28, 497 A.2d 616, 626 (1985), appeal denied, 517 Pa. 620, 538 A.2d 874, cert. denied, Barnhart v. Pennsylvania, 488 U.S. 817, 109 S.Ct. 55, 102 L.Ed.2d 34 (1988).

Our supreme court has long held that establishing causation under a tort theory is insufficient to impose criminal liability upon a person. Commonwealth v. Root, 403 Pa. 571, 575, 170 A.2d 310, 311 (1961). Rather, the Commonwealth must prove that the defendant’s conduct was so directly and substantially linked to the actual result as to give rise to the imposition of criminal liability. Commonwealth v. Rementer, 410 Pa.Super. 9, 18, 598 A.2d 1300, 1304 (1991); 18 Pa.C.S. § 303. In Rementer, we set out a two part test which requires that: (1) the defendant’s conduct must be an antecedent but for which the result in question would not have occurred, or that the victim’s death was not entirely attributable to other factors, and (2) the results of the defendant’s actions cannot be so extraordinarily remote or attenuated that it would be unfair to hold the defendant criminally responsible. Id. at 19-20, 598 A.2d at 1305.

In order to meet the requirements of the first part of the test, the defendant’s conduct need not be the sole cause of the victim’s death in order to establish a causal connection. Id. Criminal responsibility may be properly assessed against an individual whose conduct was a direct and substantial factor in producing the death even though other factors combined with that conduct to achieve the result. Commonwealth v. Skufca, 457 Pa. 124, 321 A.2d 889, appeal dismissed, 419 U.S. 1028, 95 S.Ct. 510, 42 L.Ed.2d 304 (1974). The second part of the test is met when the victim’s death is the natural or foreseeable consequence of the defendant’s actions. Rementer, supra; Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973). Where the fatal result was an unnatural or obscure consequence of the defendant’s actions, justice would prevent us from allowing the result to have an impact upon a finding of the defendant’s guilt. Rementer, 410 Pa.Super. at 23, 598 A.2d at 1306-1307.

Here, the immediate cause of the victim’s death was by drowning. In his first sub-argument, Long asserts that it was the victim’s own entry into the water, after consuming alcohol, which caused his death. This argument is not supported by the record.

Testimony presented by various witnesses reflects that the victim was a better than average swimmer and that prior to Long circling in front of the victim with his boat, the victim had experienced no difficulty swimming. The medical examiner’s report indicated that there was unabsorbed alcohol in the victim’s stomach and that the victim’s blood alcohol level was only about 0.02%. Further, there was no testimony indicating that the victim displayed any signs of intoxication or that he was experiencing any motor instability or incapacity, prior to Long’s actions with the boat.

However, even if the victim had been intoxicated upon entering the water, contributory negligence of the victim is not a defense in a criminal action. See, e.g., Commonwealth v. Heck, 341 Pa.Super. 183, 213, 491 A.2d 212, 227 (1985) (Contributory negligence is not a defense to a charge of homicide by vehicle). After a thorough review of the record, we conclude that the mere fact that the victim entered the water after consuming alcohol is insufficient to relieve Long from the responsibility for his actions, which began the chain of causation resulting in the victim’s death.

In his second sub-argument, Long contends that since the victim was still alive and crying out for help at the time that Long’s boat left the scene, his actions could not have caused the victim’s death. Long asserts that the victim’s death was solely due to the rescue effort on the part of Rich Meyers. We find no merit in these contentions.

The courts of this Commonwealth have held on numerous occasions that a defendant can be held responsible for the death of a victim despite the fact that the victim does not die immediately from the defendant’s actions but, rather, dies from the foreseeable consequences of those actions. See, e.g., Commonwealth v. Rementer, supra; Commonwealth v. Paquette, supra; Commonwealth v. Cheeks, 423 Pa. 67, 223 A.2d 291 (1966); Commonwealth v. Skufca, supra.

In Commonwealth v. Skufca, supra, a mother went out for a social evening, leaving her two small children, aged three years and ten months, alone and locked in the bedroom of their apartment. During the course of the mother’s absence, a fire started in the building. The children suffocated in the fire, despite rescue efforts, due to the manner in which the door was fastened. There, we upheld the mother’s conviction on charges of involuntary manslaughter, holding that while the direct cause of the children’s death was smoke inhalation, the legal cause of the children’s death was the unlawful conduct by mother in leaving her children unattended in circumstances that prevented their rescue from the fire. Skufca at 133, 321 A.2d at 894. We stated in response to the mother’s allegation that she was not the legal cause of the children’s death, “it has never been the law of this Commonwealth that criminal responsibility must be confined to a sole or immediate cause of death.” Skufca at 132, 321 A.2d at 894.

Similarly in Commonwealth v. Cheeks, supra, the defendant stabbed the victim, causing an injury which required surgical intervention. After surgery, the victim became disoriented and continued to pull out the tubes placed in his stomach to prevent gastric contents from being regurgitated and inhaled. The victim subsequently inhaled a large amount of gastric fluid and died due to suffocation and cardiac arrest. There, the defendant claimed that his act of stabbing the victim was not the cause of the victim’s death. This Court upheld the defendant’s murder conviction, stating that the stabbing started a chain of causation which resulted in the surgery and its complications. Cheeks at 73-74, 223 A.2d at 294. We held, in that case, that the fact that the patient became disoriented and pulled out the gastric tubes himself was not such an intervening and independent act that it would break the chain of causation between the stabbing and the death. Cheeks at 73-74, 223 A.2d at 294.

In the present case, like the above cited cases, the defendant performed actions which imperiled the victim, but did not immediately result in his death. The wakes formed by the circling boat washed over the victim’s head, causing him extreme difficulty in staying afloat. At the time that Long left the scene, the victim was, according to the Commonwealth’s swimming expert’s testimony, a “person in distress.” N.T., December 10, 1991 at 618. The expert estimated that once a person is in distress, unless a rescue takes place, drowning will occur within approximately three to ten minutes, depending on a person’s size. Id. at 622-624. The victim in this case, despite rescue efforts, did drown shortly after Long left the scene. While the rescue effort may have been unsuccessful or even poorly performed, we are unable to conclude that it constituted an independent or intervening act sufficient to break the chain of causation begun by Long.

In his third sub-argument challenging the trial court’s holding that his acts were the legal cause of the victim’s death, Long maintains that since the medical examiner listed the cause of the victim’s death as an accidental drowning, the Commonwealth failed to establish that the victim’s death was the result of any wanton or negligent act by Long, whether lawful or unlawful. We disagree.

In this claim, Long is contending that the Commonwealth failed to prove a required element of the crime of Involuntary Manslaughter. This statute states:

18 Pa.C.S. § 2504. Involuntary manslaughter
(a) General rule. — A person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person.

Recklessness is defined at 18 Pa.C.S. § 302(b)(3):

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.

Criminal negligence is defined at 18 Pa.C.S. § 302(b)(4):

A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and intent of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.

This Court has explained under what circumstances a conviction for Involuntary Manslaughter may be sustained with regard to a boating incident in Commonwealth v. Gilliland, 281 Pa.Super. 354, 356, 422 A.2d 206, 207 (1980):

In order to sustain a conviction for Involuntary Manslaughter, the appellant’s driving conduct must evidence a disregard for human life or an indifference to consequences.

In the present case, the fact that the medical examiner testified that the cause of death was by accidental drowning is not inconsistent with Long’s convictions for Involuntary Manslaughter. The medical examiner testified that he had no knowledge of the circumstances of the victim’s death and that the autopsy revealed that death was by drowning without an indication that the victim was forcibly held under the water. N.T., December 10, 1991, at 640-641.

Other testimony at trial reveals the circumstances under which the victim’s drowning took place. The manner in which Long operated his boat, his observance of the effect of the wakes on the victim, and his acts of throwing beer cans at a person crying out for help before speeding away from the scene, are all acts which evidence Long’s disregard for human life and his indifference to the consequences of his actions. We, therefore, conclude that the fact that the medical examiner found no evidence of foul play with regard to the drowning is not relevant to the circumstances of this particular case.

In his fourth attack on whether his actions were the legal cause of the victim’s death, Long asserts that the lack of any physical contact between his boat and the victim precludes his conviction on the charge of Homicide by Watercraft. We find this argument to be meritless.

Homicide by Watercraft is defined at 30 Pa.C.S. § 5502.2 as:

Any person who unintentionally causes the death of another person while engaged in the violation of any provision of this title or regulation promulgated under this title applying to the operation or equipment of boats or watercraft, except section 5502 (relating to operating watercraft under influence of alcohol or controlled substance), commits homicide by watercraft, a misdemeanor of the first degree when the violation is the cause of death.

Nowhere in this statute is physical contact required between a watercraft and the victim’s body in order for liability to attach. What is required, in order for a person to be held responsible under this section, is the violation of another provision under The Fish Act which causes the death of another person. The Commonwealth has met this burden in the present case. Two violations under the Fish Act include reckless and negligent operation of a watercraft. Reckless operation of a watercraft involves a gross deviation from the standard of care that a reasonable operator of a watercraft should observe under the circumstances. 30 Pa.C.S. § 5501(a). Negligent operation of a watercraft involves a deviation from the ordinary standard of care that a reasonable operator of a watercraft should observe under the' circumstances. 30 Pa.C.S. § 5501(b).

Our review of the record supports the findings by the trial court that Long’s operation of the boat was “reckless, conscious, willful, wanton, and grossly negligent.” Trial court opinion at 8. Long’s acts of stopping and starting the boat so as to pull out of the reach of the victim and then, causing large waves and wakes that continued to wash over the victim’s head constituted behavior sufficient to satisfy the requirements of reckless behavior under The Fish Act. 30 Pa.C.S. § 5501(a). We find Long’s assertion that his boat must have sustained physical contact with the victim in order to sustain his conviction of Homicide by Watercraft to be wholly merit-less.

As we are satisfied that Long’s acts were indeed the legal cause of the victim’s death, we now turn to Long’s second argument. Long contends that the trial court erred in admitting the videotape of the operation of Long’s boat which was made by Officer James Ammon of. the Fish Commission. Long argues that the videotape should be excluded because it was not representative of the boat’s action at the time the incident in question occurred. We disagree.

Long argues that the admission of the videotape violates the standard articulated by our supreme court in Semet v. Andorra Nurseries, 421 Pa. 484, 488-489, 219 A.2d 357, 360 (1966). In that case, the court stated:

The admission of photographs is a matter largely within the discretion of the trial Judge. Á photograph must be verified either by the testimony of the person who took it or by another person with sufficient knowledge to state that it fairly and accurately represents the object or place reproduced as it existed at the time of the accident, or if there is a difference or change, the difference or change is specifically pointed out and is readily capable of being clearly understood and appreciated by the jury.

Contrary to Long’s assertions, we conclude that the admission of the videotape, in this case, clearly complies with the requirements of Semet. Here, the videotape was verified by Ammon, the person who made the tape. Ammon testified that while the videotape accurately depicted the boat and the scene in question, the movements of the boat in the water were not designed to recreate the accident but were, rather, examples of different movements of the boat on the water in order to show how a wake or waves might be created by that particular craft. The videotape was never represented to the trial court as an exact recreation of the incident in question. This fact was clearly understood by the trial court, which stood as fact finder, in this case. We, therefore, conclude that Long’s allegations of error on the part of the trial court for its failure to comply with the Semet requirements are meritless.

Moreover, the videotape, while not recreating the scene of the victim’s death, was relevant to support the Commonwealth’s theory that the waves and wake which Long’s boat was capable of creating could cause a swimmer to experience distress and become unable to keep afloat. See, e.g., Commonwealth v. Henry, 524 Pa. 135, 159, 569 A.2d 929, 940 (1990) (admission of photographs of murder victim was proper as they supported the Commonwealth’s theory that the victim had been tortured); Commonwealth v. DeHart, 512 Pa. 235, 516 A.2d 656 (1986), cert. denied, 483 U.S. 1010, 107 S.Ct. 3241, 97 L.Ed.2d 746 (1987) (photographs depicting blood stained door of victim’s cabin were admissible as relevant to the Commonwealth’s theory that the victim was ambushed as he entered the cabin).

The admission of photographic or videotaped evidence is always within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. Commonwealth v. Stark, 363 Pa.Super. 356, 526 A.2d 383 (1987), appeal denied, 517 Pa. 622, 538 A.2d 876 (1988). As Long has presented no evidence that the trial court abused its discretion with regard to the admission of the videotape, we reject this argument.

Third, Long alleges that the trial court erred in admitting the testimony of the Commonwealth’s expert, Richard Bradshaw, because Bradshaw was not qualified as an expert on boating. We conclude that Long misapprehends the purpose for which Bradshaw’s testimony was offered at trial and we, therefore, reject this allegation of error.

In Pennsylvania, a liberal standard for the qualification of an expert prevails. Generally, if a witness has any reasonable pretension to specialized knowledge he may testify and the weight to be given to his evidence is for the fact finder. Commonwealth v. Gonzalez, 519 Pa. 116, 128, 546 A.2d 26, 31 (1988). The determination of whether a person is qualified as an expert in this particular field is left to the discretion of the trial judge, and will be upheld absent an abuse of that discretion. Commonwealth v. Young, 524 Pa. 373, 389, 572 A.2d 1217, 1225 (1989).

Here, the Commonwealth offered Bradshaw as an expert witness on the human physiology of swimming and drowning and on how various wakes would affect a swimmer. N.T., December 10, 1991, at 585. Bradshaw testified as to his qualifications in that area, to which Long offered no objection. The expert’s testimony was used to explain the effect of the type of wakes generated by Long’s boat on a swimmer. The expert did not attempt to explain the hydrodynamics of powerboats or why or how the wakes in question were created. Rather, the expert viewed the videotape of Long’s boat and the various wakes that it could possibly create and explained the effect that those types of wakes could have on a swimmer. Moreover, the purpose for which the expert’s testimony was to be utilized was clearly understood by the trial court in its role as fact finder. The court stated:

... Bradshaw’s testimony as an expert was not offered for the purposes of explaining the operation of a power boat. Rather, it was offered for the purpose of explaining how wakes effect [sic] a swimmer. This area of Bradshaw’s expertise, as an aquatics coach for 30 years with degrees in physical education and physiology, were submitted to the Court without objection and Bradshaw’s testimony was properly supported by other evidence of record.

Trial court opinion at 9.

We, therefore, are unable to conclude that the trial court abused its discretion in the admission of the expert’s testimony.

In his fourth and final allegation of error, Long alleges that the testimonial evidence presented at trial was insufficient to sustain his conviction due to inconsistencies in the testimony of the various witnesses for the Commonwealth. We disagree.

A mere conflict in testimony does not render evidence insufficient. Commonwealth v. Rankin, 441 Pa. 401, 272 A.2d 886 (1971). The fact that there are some inconsistencies in the witnesses’ testimony is not alone sufficient to destroy the Commonwealth’s case or to render the evidence insufficient to support the verdict. Commonwealth v. Sample, 321 Pa.Super. 457, 468 A.2d 799 (1983). While there were some inconsistencies in the testimony of the various witnesses presented at trial, Long had the opportunity to fully cross-examine all witnesses presented. Thereafter, the determination of the credibility of those witnesses was the function for the fact finder, who was free to believe all, part, or none of the evidence. Commonwealth v. Maute, 336 Pa.Super. 394, 485 A.2d 1138 (1984).

After viewing the evidence, in the light most favorable to the Commonwealth, as verdict winner, we conclude that the Commonwealth has established the elements of the crimes in question beyond a reasonable doubt. We, therefore, dismiss Long’s fourth claim as meritless.

Accordingly, in light of the foregoing, we affirm the judgment of sentence.

Judgment of Sentence Affirmed.


source: Caselaw Access Project

author: HESTER, Judge.

license: Public Domain

text:
    624 A.2d 208
    GIANT EAGLE MARKETS COMPANY, v. UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL UNION NO. 23, Carl C. Huber, Individually and as President of Local Union No. 23, Edward J. Manning, Individually and as Assistant to the President of Local Union No. 23, and James Bono, Individually and as Secretary/Treasurer of Local Union No. 23, Appellants.
    Superior Court of Pennsylvania.
    Argued June 16, 1992.
    Filed April 28, 1993.

      Richard D. Gilardi, Pittsburgh, for appellants.
    Jane Campbell Moriarty, Pittsburgh, for appellee.
    Before WIEAND, DEL SOLE and HESTER, JJ.
   HESTER, Judge.

The United Food and Commercial Workers Union, Local No. 23, and several of its officers appeal from an order of the Court of Common Pleas of Allegheny County entered during a period of labor unrest between the union and Giant Eagle Markets Company, appellee. The order limited the number of pickets and enjoined alleged unlawful conduct of union pickets at all the retail stores in Allegheny County owned by appellee. Appellants contend that the injunction was granted improperly and that even though the strike was settled before this appeal, the issue is not moot as it is capable of repetition and a statutory claim for attorney’s fees remains outstanding. Appellee, who maintains the injunction properly was granted, argues that the claim for attorney’s fees is moot as there is no ongoing controversy to which it relates. Although we agree with the trial court as to the mootness of the propriety of the injunction, we nonetheless must review the injunction decision since the viable issue of the claim for attorney’s fees is contingent upon that ruling.

The record reveals the following. On April 21, 1991, members of United Food and Commercial Workers Union Local No. 23 went on strike and began picketing appellee’s Allegheny County stores. On April 23, 1991, appellee filed a motion seeking injunctive relief averring that union workers were engaging in mass picketing, violence, and intimidation directed against those persons seeking to do business with appellee, including those employees who wished to cross the picket line. In addition, appellee maintained that business revenues had dropped seventy percent during the forty-eight hour period since the onset of the strike. Appellee concluded that the union pickets were interfering unlawfully with the retail chain’s ability to do business during the strike.

A hearing on the matter was held the same day, at which time both sides presented witnesses. Witnesses for appellee testified that at various locations, up to fifty or sixty pickets would stand shoulder to shoulder and block the entrances and exits from the stores, sometimes swarming around a customer in an attempt to prevent that person from entering. Douglas Martin, a manager of one of appellee’s stores, testified that he had received customer complaints from every customer who entered his store. In addition, the company attributed various acts of violence to the union pickets. Specifically, the windshield of a pizza delivery van was hit by an unidentified object and shattered in one of the chain’s parking lots, and the tires of another delivery truck were flattened. In addition, appellee contended there were bomb threats and threatening language and gestures directed toward customers and employees. The company also claimed that rodent traps had been placed in the aisles of one of the markets. In their defense, union officials testified that the pickets had been instructed not to block entrances and exits and were told to maintain peaceful picketing. Appellants argued that they were not violating any laws and suggested that the decrease in business revenue was attributable to voluntary public support of the union position. The court concluded the hearing following testimony regarding the alleged union activities at eight of the retail chain’s thirty-one Allegheny County stores.

Relief was granted by the trial court on April 24, 1991. The court, after finding that the actions of the union workers constituted a seizure of the premises, issued an injunction ordering the pickets to be peaceful and lawful in nature, restricting the number of pickets at the entrances of all appellee’s stores, mandating the proper spacing and location of those pickets, and enjoining appellants from preventing persons having business with appellee from entering or leaving the premises. The union appealed. On June 2, 1991, the labor dispute was settled, and the strike was ended voluntarily. On July 23, 1991, the trial court, filed the following opinion: “The labor strike which precipitated the injunction appealed from has been settled, rendering the instant appeal moot.” Trial court opinion, 7/22/91, at 1.

Appellants argue that the appeal is not moot as this is an issue “capable of repetition, yet evading review.... [and as] 43 Pa.C.S. § 206q mandates that upon denial of injunctive relief the court shall order the complainant to pay reasonable costs and expenses of defending the suit and a reasonable counsel fee.” Appellants’ brief at 36. They rely upon PHK-P, Inc. v. United Food and Commercial Workers Local 23, 381 Pa.Super. 544, 554 A.2d 519 (1989), for support. In PHK-P, the trial court granted a preliminary injunction against unions conducting rallies upon or near nonunion supermarkets by limiting the number of informational pickets. The court did this without first finding that supermarket owners would suffer irreparable harm or that they would suffer greater harm than the union and that there would be inadequate police protection. Essentially, the court failed to classify the case as a labor dispute within the confines of the Labor Anti-Injunction Act because it involved nonunion supermarket owners. Instead, the court emphasized the private property interests of the owners when it found that the picketers’ right to assemble was limited to public areas. In reversing the order, we remanded to determine an appropriate award of reasonable attorneys fees and expenses incurred by the union in defending the suit. Although obviously distinguishable from the instant case wherein the underlying dispute was settled prior to the time the appeal was heard, we are guided by the precedent that if, in fact, the law was misconstrued by the trial court, a case may be remanded for a determination of reasonable attorneys fees.

The standard of review of an order granting or denying a preliminary injunction is as follows.

The focus of this court’s review is to examine the record to determine if reasonable grounds existed for the court’s action below. Coatesville Development Company v. United Food Workers, 374 Pa.Super. 330, 337, 542 A.2d 1380, 1384 (1988) (en banc). A preliminary injunction is an extraordinary remedy and in order to sustain a preliminary injunction, it must be shown that the plaintiff has established a clear right to the relief sought. Soja v. Factoryville Sportsmen’s Club, 361 Pa.Super. 473, 479, 522 A.2d 1129, 1131 (1987). “Only if it is plain that no grounds exist to support the decree or that the rule of law relied upon was misapplied will we interfere with the decision of the chancellor.” Coatesville Development Company v. United Food Workers, 374 Pa.Super. at 337, 542 A.2d at 1384 (citations omitted).

PHK-P, Inc. v. United Food and Commercial Workers Union Local 23, supra, 381 Pa.Super. at 547, 554 A.2d at 520.

Labor picketing, as long as it is not coercive, intimidating, or violent, is recognized as a protected form of assembly and free speech by both the United States and Pennsylvania Constitutions. See U.S. Const, amend. I, and Pa. Const, art. I, § 7. See also Frankel-Warwick Ltd. v. Local 274, Hotel, Bartenders and Restaurant Employees Union, 334 Pa.Super. 47, 482 A.2d 1073 (1984); Consolidation Coal Co. v. District 5, United Mine Workers of America, 336 Pa.Super. 354, 485 A.2d 1118 (1984). Activities aimed at encouraging the public to honor and participate in picket lines are lawful extensions of that right. Solvent Machinery v. Teamsters Local No. 115, 343 Pa.Super. 505, 495 A.2d 579 (1985); PHK-P, Inc. v. United Food and Commercial Workers Union Local 23, supra.

In order to preserve the delicate balance resulting from the competing interests between the union’s right to assemble and the company’s ability to do business and bargain with the union in a lawful way, the Pennsylvania Legislature enacted the Labor Anti-Injunction Act (“Act”), 43 Pa.S. §§ 206a-206r. The Act applies to all situations arising from labor disputes and establishes strict guidelines limiting the court’s jurisdiction over such matters. The court is generally without jurisdiction to grant injunctive relief in a labor dispute. Section 206i of the Act provides exceptions under which injunctive relief may be granted. The court must find all of the following before issuing an injunction.

(a) That unlawful acts have been threatened and will be committed unless restrained, or have been committed and will be continued unless restrained, but no temporary or permanent injunction or temporary restraining order shall be issued on account of any threat or unlawful act, excepting against the person or persons, association or organization, making the threat or committing the unlawful act, or actually authorizing or ratifying the same after actual knowledge thereof.
(b) That substantial and irreparable injury to complainant’s property will follow unless the relief requested is granted.
(c) That, as to each item of relief granted, greater injury will be inflicted upon complainant by the denial of relief than will be inflicted upon defendants by granting of relief.
(d) That no item of relief granted is relief which is prohibited under section six of this act.
(e) That complainant has no adequate remedy at law; and
(f) That the public officers charged with the duty to protect complainant’s property are unable to furnish adequate protection.

43 Pa.S. § 206i; see also DeWilde v. Scranton Building Trades and Construction Council, 343 Pa. 224, 228, 22 A.2d 897, 899-900 (1941) (court must comply with Act’s requirements, or it is "without power to enjoin picketing).

The court, also, may issue an injunction in certain situations arising out of labor disputes to which the Act does not apply. 43 Pa.S. § 206d provides that if the court finds that employees have seized an employer’s property, it may grant an injunction. Therefore, injunctive relief may be granted pursuant to general equitable powers without specific findings of the requirements in 206i.

Appellants first urge this court to find that the instant case is a labor dispute as defined in the Labor Anti-Injunction Act. Appellants argue that the Act applies since the “striking Giant Eagle workers are employees of the same employer and were engaged in controversy concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment.” Appellants’ brief at 15. See 43 Pa.S. § 206c(a) and (c). Accordingly, appellants argue, in order to claim jurisdiction, the court must make the requisite findings under 43 Pa.S. § 206i. Appellee counters that the Act does not apply in cases where the employees have seized the property of the employer. Appellee contends that a seizure of its stores occurred in this case. Therefore, it defends the general equitable powers of the court to retain jurisdiction and enjoin the union’s picketing activities. Upon review of the record and the relevant case law, we conclude that no seizure occurred.

First, appellants challenge the propriety of the injunction, arguing that no evidence proving that individuals had been turned away was presented. We agree. The law requires the court to determine that there is a control of the entrances of the property of the owner. In the eyes of the law, this constitutes a seizure of the premises. Wilkes-Barre Independent Co. v. Newspaper Guild, Local 120, 455 Pa. 287, 314 A.2d 251 (1974). In order to issue a valid injunction against mass picketing, the court first must find that the picketing “resulted] in the intimidation and coercion of officers and employees of the plaintiff and denie[d] workmen from legitimate access to plaintiffs plant____” Carnegie-Illinois Steel Corp. v. United Steelworkers of America Local 1397, 353 Pa. 420, 426, 45 A.2d 857, 860 (1946) (emphasis added). The court’s decision in Camegie-Illinois was supported by evidence that the union had announced that all management personnel would be denied access to plant property. This was accomplished by the presence of one to two hundred picketers who stood shoulder to shoulder, three deep prohibiting passage. In addition, one individual attempting to remove personal articles from his locker was grabbed by pickets and forcibly detained within the plant. He was escorted against his will from company property by angry pickets who placed him into a pick-up truck against his will and drove him to a union hall where he was taken to private office and the door was locked. He attempted to flee several times and was injured by one of the pickets during the process. Although he eventually was released, continued threats by pickets elevated to the promise that there would be bloodshed if management did not stop making use of one particular plant entrance.

Instantly, this was not the ease. Appellee presented testimony from supervisors, non-management employees, and customers who recalled their experiences with respect to customers who actually had entered various store locations. Their collective testimony conclusively established that the pickets did not control the entrances since both employees and customers were able to cross picket lines. The fact that their entry was not controversy-free is not controlling. Picketing which causes customers difficulty in gaining access to an establishment, does not constitute a seizure under the Act. Frankel-Warwick Ltd. v. Local 274, Hotel, Bartenders and Restaurant Employees Union, supra.

Appellee argues that the present case is distinguishable from Frankeb-Warwick because the elements missing from that case are present herein. Appellee relies upon the following portion of that case to support their contention. “While the presence of the pickets may have made travel on the sidewalk somewhat difficult, we do not perceive from the record any instance of threats, intimidation or physical restraint to constitute a seizure.” Id., 334 Pa.Super. at 53, 482 A.2d at 1076. (emphasis added). Appellee argues that their witnesses, Burgo, Martin, Tranzo, Sholhead, Malky, Kuhn, and Hammond, all testified that they were subject to threats and intimidation upon entry. Clearly, since customers and employees had access to the stores, appellee has neglected to provide evidence that physical interference which amounted to a seizure took place. There is no evidence, therefore, that these purported incidents occurred with the intention of compelling appellee to concede to appellants’ demands as required by the Act. See 43 Pa.S. § 206d(d). Case law mandates that a seizure does not occur unless the union controls the entrances and denies access. See Indiana Cobra, Inc. v. United Food and Commercial Workers Local 28, 406 Pa.Super. 342, 594 A.2d 368 (1991). The trial court did not have the power to issue the injunction under section 206d of the Act.

Having found that this case falls within the ambit of section 206i of the Act, we now proceed to address appellants’ contention that the trial court erred in granting an injunction which limited informational picketing in a labor dispute without first finding that each of the prerequisites for injunctive relief set forth in the Act had been established. Before granting an injunction against picketing which arises out of a labor dispute, the court must find that: (1) unlawful acts have been threatened or committed or will be committed, (2) the employer’s property will sustain substantial 'and irreparable injury, (3) greater injury will be inflicted upon the employer by the denial of relief than will be inflicted upon labor by granting relief, (4) adequate police protection is unavailable, and (5) there exists no adequate remedy at law. See 43 Pa.S. § 206i(a), (b), (c), (e), (f); see also Solvent Machinery v. Teamsters Local No. 115, supra, 343 Pa.Super. at 508, 495 A.2d at 580. PHK-P, Inc. v. United Food and Commercial Workers Local 23, supra, 381 Pa.Super. at 550, 554 A.2d at 522.

In the instant case, it is clear from the record that the court was aware of the restrictions set forth in 43 Pa.S. § 206i. This is evidenced by the court’s recitation of the language of subsections (a), (b), (c), and (e). However, these conclusions are not supported by specific factual findings with relation to the standards. The law is clear that the court must make specific findings with regard to these subsections before it may enjoin labor picketing. See Indiana Cobra, Inc. v. United Food and Commercial Workers Local 23, supra.

Specifically, the requirements of 206i(b) had not been fulfilled. No evidence was presented that any union member had damaged Giant Eagle property. Nor was evidence presented that Giant Eagle property would be damaged if the injunction were not granted. Appellants presented the court with evidence of the following damage: a broken pizza delivery van windshield, the flattened tires of a delivery truck, a bomb threat, and rodent traps found in store aisles. This evidence is not sufficient to establish that substantial injury to Giant Eagle’s property would follow unless an injunction were issued.

Further, the court failed to consider the final requirement of § 206i, that the public officers charged with the duty to protect appellee’s property were unable to furnish adequate protection. Evidence on this issue was sparse and related to only two stores of the thirty-one enjoined. One store manager, Charles Sholhead, testified that police officers who were called to disperse pickets told him that they would not instruct the picketers to move away from store entrances without a court injunction. Thus, the police must not have perceived the activity of the pickets as illegal. In other testimony, Douglas Martin, another store manager, testified that local police were called to disperse pickets, but did not respond. Absolutely no evidence, however, was presented to support appellee’s claim that local police were unable to furnish adequate protection at the retail chain’s thirty-one Allegheny county stores. No one testified that police were called to respond to incidents of assault or property damage, and no one testified that once present, officers were unable to diffuse the situations. Therefore, we find this case analogous to Solvent Machinery and Filter Systems, Inc. v. Teamsters Local No. 115, 348 Pa.Super. 505, 509, 495 A.2d 579, 581 (1985), in which we held that:

There was no evidence offered at the hearing that the public officers were unable to furnish adequate protection. Evidence was offered that the police were called and that they made a brief appearance on the scene. No testimony was offered to support the proposition that there were events taking place that were of such a magnitude that the local police could not handle the situation. No arrests were made. No patrol of the premises was established. We find therefore that the trial court lacked the statutory basis to issue the preliminary injunction.

Next, appellants contend that the court erred by issuing an overly broad injunction. Since we have determined that the court improperly granted this injunction, this issue appears to be moot.

Lastly, we address appellants’ request for attorneys fees. The Act provides: “Upon denial by the court of any injunctive relief sought in an action growing out of a labor dispute, the court shall order the complainant to pay reasonable costs and expenses of defending the suit and a reasonable counsel fee.” 43 Pa.S. § 206q. Having determined that the injunction was granted improperly, we are constrained to reverse the order and remand this case for a determination of an award of attorney fees and reasonable costs and expenses incurred by appellants in defending this suit. See PHK-P, Inc. v. Local 23, supra; see also Indiana Cobra, Inc. v. United Food and Commercial Workers Local No. 23, supra.

Order reversed. Case remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

WIEAND, J., concurs in the result.

      . The Labor Anti-Injunction Act, 43 Pa.S. § 206d, provides that: mass picketing which denies the employer access to a plant constitutes seizure of the plant. The control of the entrances is the control of the plant. Westinghouse Electric Corp. v. International Union of Electric, Radio and Machine Workers, 262 Pa.Super. 315, 396 A.2d 772 (1978).

      . Having drawn this conclusion, we find it unnecessary to make a determination as to appellant’s claim that this is an issue capable of repetition.


author: TAMILIA, Judge:

text:
    624 A.2d 636
    COMMONWEALTH of Pennsylvania, Appellant v. John TWYMAN
    Superior Court of Pennsylvania.
    Submitted March 30, 1993.
    Filed May 4, 1993.

      Stuart B. Suss, Asst. Dist. Atty., West Chester, for Com., appellant.
    Jeremiah F. Kane, West Chester, for appellee.
    Before TAMILIA, POPOVICH and CERCONE, JJ.
   TAMILIA, Judge:

The Commonwealth appeals from the September 14, 1992 Order granting defendant’s motion to suppress contraband seized as a consequence of a warrantless search of his vehicle.

Arresting officer Michael McGinnis, a narcotics investigator for three years, testified that at approximately 11:00 a.m. on February 11, 1992 he was paged on his beeper by a confidential informant who advised him a two-tone green Grand Prix, Pennsylvania license plate XCC 988, had left the 100 block of South Matlack, in the town of West Chester, one hour earlier, bound for North Philadelphia to purchase drugs. McGinnis testified he was familiar with the vehicle as one which had previously been pointed out to him as being involved in the rampant drug trade in the 100 block of South Matlack Street. The informant advised McGinnis the vehicle was occupied by Bud Twyman, the appellee’s brother-in-law George Rochester and the appellee, John Twyman, who planned an immediate return upon effectuating the narcotics purchase. The officer “knew of’ defendant Rochester and was able to recognize him and the other two defendants. He was also aware Rochester and appellee lived at 122 South Matlack, a residence at which McGinnis had previously executed a search warrant for controlled substances and arrested several of appellee’s family members. Realizing the round trip from West Chester to North Philadelphia took approximately one and one-half hours, McGinnis radioed his partner to meet him and proceeded immediately to the vicinity of South Matlack. At approximately 11:30 a.m., McGinnis observed the two-tone green Grand Prix, license number XCC 988, with appellee and the other two defendants heading toward 122 South Matlack. The Grand Prix parked 75 feet from the residence and McGinnis pulled along side the vehicle blocking its egress. He then ordered the occupants from the car, waited for back-up and arrested the defendants. A visual scan of the car’s interior disclosed plastic bags and the orange tops of crack vials. A subsequent search of the Grand Prix revealed crack cocaine and related drug paraphernalia.

At the hearing on his motion to suppress, defense counsel raised the issue of the informant’s reliability. McGinnis testified the informant had provided reliable information leading to the arrest of at least three others within the past three months, two as a result of the controlled purchase of drugs and one from a vehicular stop similar to that presently before this Court. Because the cases were pending and primarily because the affiant feared for the safety of the informant should his cohorts deduce his identity, McGinnis refused the court’s request to disclose the name of the vehicular stop case which was factually akin to this case. As a sanction for the Commonwealth’s refusal, the court found the informant unreliable, ruled the warrantless stop and arrest were not based on probable cause and granted the defendant’s motion to suppress the contraband seized.

On appeal, the Commonwealth argues there was sufficient independent information constituting probable cause for the search of the vehicle, regardless of the confidential informant’s reliability. The Commonwealth also contends McGinnis acted within the confines of well established law when he declined to jeopardize the identity of the confidential informant. We agree with appellant’s arguments.

In reviewing an Order granting a motion to suppress, we must first determine whether the court’s factual findings and legal conclusions are supported by the record. Commonwealth v. Medley, 531 Pa. 279, 612 A.2d 430 (1992). To determine this, we will review only the evidence of the appellee and so much of the appellant which, when read in the context of the record as a whole, remains uncontradicted. Id. If the factual findings are supported by the record, then we may reverse only if the legal conclusions drawn from the findings are erroneous. Id. We find the recitation of the facts leading to appellee’s arrest, as set forth in'the record, do not support the court’s finding the informant was unreliable and, furthermore, there existed sufficient independent information upon which to find probable cause to conduct an investigatory stop.

Reliability aside, the informant accurately related to McGinnis the color, make, model and tag number of the vehicle which McGinnis was aware had heretofore been associated with the drug trade in the Matlack area of West Chester. He also identified the vehicle’s three occupants and the location and time, within minutes, of appellee’s arrival in West Chester. The address to which McGinnis was directed was a known drug house at which he had previously executed a drug related search warrant. In addition, McGinnis was familiar with the occupants of the vehicle and knew appellee and co-defendant Rochester resided at the 122 South Matlack address. The mere fact the informant had McGinnis’ beeper number indicates he had prior dealings with the officer. Based on these facts and those set forth in detail supra, we believe the record does not support the suppression court’s finding of unreliability, but do agree with the suppression court’s reasoning voiced prior to handing down its ruling that absent defense counsel’s request for information regarding McGinnis’ other three arrests and the court’s subsequent demand for a case name, there was probable cause for the warrantless search of the appellee’s vehicle:

I’m perfectly satisfied that if the question hadn’t been asked and if the Commonwealth had not refused to answer it, there would have been plenty of probable cause [to stop and search appellee’s vehicle]. I have no problem there.

(N.T., 9/14/92, p. 80.)

As to McGinnis’ refusal to disclose information which would have comprised the identity and therefore the safety of his confidential informant, we find his decision was appropriate and within the confines of the law. See Commonwealth v. Ogborne, 410 Pa.Super. 164, 599 A.2d 656 (1991), alloc. den., 530 Pa. 631, 606 A.2d 901 (1992) (confidential informant’s tip the defendant would arrive home within a few hours carrying POP provided sufficient indicia of reliability to justify an investigatory stop in the driveway of defendant’s home several hours after the officer received the tip).

Before the Commonwealth will be forced to reveal an informant’s identity, there must be some showing the disclosure is necessary. Commonwealth v. Mickens, 409 Pa.Super. 266, 597 A.2d 1196 (1991). Here, there was no such showing made. Furthermore, a defendant may not insist upon the disclosure of an informant’s name where such disclosure would jeopardize the confidential informant’s safety. Commonwealth v. Miller, 513 Pa. 118, 518 A.2d 1187 (1986); Commonwealth v. Kennedy, 413 Pa.Super. 95, 604 A.2d 1036 (1992), alloc. den., 531 Pa. 638, 611 A.2d 711 (1992). Logic requires a finding the safety of McGinnis’ source would be jeopardized by revealing the case names in which he had served as an informant. As pointed out by the Commonwealth, West Chester is not comparable in size to the metropolises of Pittsburgh or Philadelphia. We believe it would not be difficult, if the appellee were so inclined, to determine which person was common to his case as well as the one for which the court demanded its caption. This worry is compounded by the fact this arrest as well as the other three in which the same confidential informant participated, occurred within the same neighborhood area of West Chester. The court’s finding McGinnis could have divulged the case name without jeopardizing the informant’s identity and his safety is not supported by the record and therefore not binding on this Court. Accordingly, we find the court erred by granting appellee’s motion to suppress as a sanction for refusing to divulge the vehicular case name.

Based on the foregoing reasons of law and fact we vacate the September 14, 1992 suppression Order and remand this matter to the trial court.

Order vacated and case remanded for proceedings in accordance with this Opinion.

Jurisdiction relinquished.


author: OLSZEWSKI, Judge:

text:
    624 A.2d 638
    Linda I. KRIZOVENSKY, Appellant, v. John M. KRIZOVENSKY, Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1993.
    Filed May 4, 1993.

      Patricia Handy-Cooley, Asst. Dist. Atty., Doylestown, for appellant.
    Joseph S. Britton, Langhorn, for appellee.
    Before OLSZEWSKI, TAMILIA and FORD ELLIOTT, JJ.
   OLSZEWSKI, Judge:

Linda Krizovensky [“wife”] appeals the order entered July 23, 1992, in the Court of Common Pleas of Bucks County. The court’s order apportioned the post-retirement distribution of John Krizovensky’s [“husband”] Civil Service Retirement System pensión. On this appeal, wife argues that the court misinterpreted the parties’ property settlement agreement and disputes the amount awarded to her pursuant to the court’s order. We agree and reverse the trial court’s order.

The parties negotiated a property settlement agreement before a Master in Divorce on February 22,1991. The master advised the parties that the agreement made at that time was to be the final resolution of the equitable distribution claims from the marriage. The master also advised the parties that if they did not understand the agreement or had questions concerning it, they should ask the questions before the conference was over. Subsequently, the parties agreed to the distribution of husband’s civil service retirement pension as follows:

MR. BRITTON: In addition to the items previously identified, the parties recognize and agree that husband has a Civil Service Retirement System pension by virtue of his employment through the Naval Air Propulsion Center. With respect to this interest in the aforesaid pension, the parties agree that the division will be as identified hereinafter. The coverture fraction will be defined as follows: enumerator [sic] is 13.75, or thirteen and three quarters, the denominator will be the entire length of the plan up to the time that the plan is in pay status. The coverture fraction shall then be multiplied by the basic benefit of the plan. Thereafter, wife’s portion of the plan shall be fifty percent of the above mentioned number, and husband’s portion of the plan shall be the remaining fifty percent of the above identified number. When I refer to “the above identified number”, I’m referring to the enumerator [sic] over the denominator, multiplied by the basic benefit of the plan. The parties agree that the death of husband shall not terminate wife’s portion of the said Civil Service Retirement System plan, and her portion shall be protected by a fully reduced survivor annuity.
MS. COOLEY: Off the record.
(Discussion was held off the record.)
MR. BRITTON: In addition to what has been previously stated, in addition to getting fifty percent of what has been identified as the marital portion of the plan, husband will also get the balance of the plan benefits, anything which would be considered the non-marital portion of the plan. Wife, through her attorney, shall prepare a [Qualified Court Order] in order to implement the distribution as set forth herein. The Court of Common Pleas of Bucks County shall retain jurisdiction of the [Qualified Court Order] and the distribution of [the] pension as set forth herein.

N.T., 2/22/91 at 9-11 (emphasis supplied) (footnote added).

On May 7, 1991, the court entered a divorce decree and incorporated the property settlement agreement (above) which was finalized at the Master’s hearing. Wife then prepared a proposed qualified court order [“QCO”] as directed by the master. For purposes of this appeal, the relevant parts of the proposed QCO are paragraphs 10 and 13. Paragraph 10 sets forth the coverture calculation as applied to the basic monthly retirement benefits collectable after husband retires. Paragraph 13 concerned the distribution of income if husband predeceases wife, stating:

Survivor annuities. The former spouse is entitled to a Former Spouse Annuity. This annuity shall be equal to the amount payable under the fully reduced annuity. These survivor annuity rights of the former spouse shall consist of both pre-retirement and post-retirement survivor rights.

R.R. at 122a (emphasis supplied).

Husband refused to approve the proposed QCO because he disputed the meaning of the term “fully reduced annuity” as used in paragraph 13, the survivorship provision. Husband argued that the benefits provided to wife in paragraph 13 should be determined in accordance with the coverture fraction calculations in paragraph 10. Wife countered that the language in the proposed QCO was in compliance with the property settlement agreement, by which she was entitled to the full survivor’s benefit. The Master in Divorce filed a report dated February 12, 1992. The master recommended that:

the Qualified Court Order submitted by wife’s attorney should be entered as the order. The language in that order reflects the language in the [property settlement] agreement. The interpretation of that order is left to the plan administrator of the pension.

R.R. at 54a. Ultimately, the parties could not agree on the meaning of “fully reduced annuity” in paragraph 13. A hearing was held to resolve this question of interpretation on May 22, 1992.

Both husband and wife presented expert testimony concerning wife’s entitlement to the survivor annuity provision. Wife’s expert, William Troyan [“Troyan”] testified that the term “fully reduced survivor annuity,” as used in the property settlement agreement, mandated that wife should receive 55 percent of the total retirement allowance payable at husband’s death, the maximum spouse benefit possible. N.T., 5/22/92 at 10. He also stated that under the federal regulations, there are generally two survivor benefit options. One is a “fully reduced annuity” and the other is a “partially reduced annuity.” Id. at 7. Both are specifically defined in the Code of Federal Regulations. Id.; C.F.R. § 831.603. A fully reduced annuity is the maximum available surviving spouse annuity, equal to 55 percent of the benefit payable at the employee’s death. Id. at 8. A partially reduced annuity is some portion less than 55 percent collectable by the surviving spouse. Id. The terms are not interchangeable. Id. at 9. Troyan also testified that the terms of the property settlement agreement and the proposed QCO were entirely consistent. Id. at 11.

On cross-examination, Troyan testified that the monthly benefit and the survivor annuity were two distinct entities, and that the coverture fraction only applied to the basic monthly benefit. Id. at 17. Troyan testified that “fully reduced” are specific terms with only one meaning under the federal civil service system. Id. at 20. • He also stated that it is possible to award less than a fully reduced survivor annuity, but that the apportionment or reduction must be accomplished by reference to a specific percentage so that the civil service retirement system could calculate the annuity. Id. at 24.

Husband’s expert, Peter Lynn [“Lynn”], testified that “fully reduced survivor annuity” was not defined anywhere. Id. at 61. Nonetheless, he stated that he suspected that the correct term was “fully reduced annuity.” Id. Lynn testified that “fully reduced annuity” was the maximum survivor spouse benefit. Id. at 62.

Husband testified that he never intended to give up his entire survivor annuity. He stated his impression that the coverture fraction would apply to the survivor benefit because he planned to marry again, and would want his second wife to have survivor benefits. Id. at 26, 30.

As a result of the testimony at the hearing, the QCO was modified by the court on May 27, 1992. QCO paragraph 13 now states:

13. Wife is entitled to a former spouse annuity. This amount shall be equal to a portion of the amount payable under the fully reduced annuity. This portion shall be determined .in accordance to the criteria established in paragraph 10 [calculation of a coverture fraction]. These survivor annuity rights of the former spouse shall consist of both pre-retirement and post-retirement survivor rights.

Order, 5/27/92 at 3. The trial court stated in its opinion that this language was the compromise result of husband’s and wife’s dispute regarding wife’s entitlement to a survivor’s annuity. The court reasoned that:

husband never intended to bargain away to his former spouse the full amount of his Former Spouse Annuity, including a portion which he had not yet earned. We further conclude that the first paragraph of the language of the agreement of February 22, 1991 [the property settlement agreement], ... made it clear that Wife’s portion was to be limited by the coverture fraction.

Trial court opinion, 7/23/92 at 3-4. Wife filed objections to the QCO, specifically to paragraph 13. Her exceptions were denied and this appeal followed.

Wife presents three arguments in support of her request for reversal of the trial court’s order. First, wife argues that the language of the property settlement agreement clearly provides her with a survivor annuity equal to a fully reduced annuity. Second, wife argues that the trial court erred in considering husband’s testimony concerning his intent at the time he entered the agreement and/or in disallowing testimony concerning the negotiations leading up to the settlement agreement. Third, wife argues that the lower court erred by concluding that wife was entitled only to a portion and not the entire fully reduced survivor annuity.

Property settlement agreements are to be considered pursuant to general rules of contract interpretation. D’Huy v. D’Huy, 390 Pa.Super. 509, 568 A.2d 1289 (1990). When interpreting a contract, a court must determine the intent of the parties and effect must be given to all provisions in the contract. Dept. of Transp. v. Manor Mines, Inc., 523 Pa. 112, 565 A.2d 428 (1989). It is firmly settled that the intent of the parties to a written contract is contained in the writing itself. Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659 (1982). When the words of a contract are clear and unambiguous, the intent is to be found only in the express language of the agreement. Id. Clear contractual terms that are capable of one reasonable interpretation must be given effect without reference to matters outside the contract. D’Huy, supra. Where the contract terms are ambiguous and susceptible of more than one reasonable interpretation, however, the court is free to receive extrinsic evidence, ie., parol evidence, to resolve the ambiguity. Id. A contract will be found to be ambiguous:

if, and only if, it is reasonably or fairly susceptible of different constructions and is capable of being understood in more senses than one and is obscure in meaning through indefiniteness of expression or has a double meaning. A contract is not ambiguous if the court can determine its meaning without any guide other than a knowledge of the simple facts on which, from the nature of the language in general, its meaning depends; and a contract is not rendered ambiguous by the mere fact that the parties do not agree on the proper construction.

Z & L Lumber Co. of Atlasburg v. Nordquist, 348 Pa.Super. 580, 585-86, 502 A.2d 697, 700 (1985) (citations omitted).

Ambiguity within a contract may be latent or patent. A patent ambiguity appears on the face of the contract and is a result of defective or obscure language. Id. A latent ambiguity arises from collateral facts which make the meaning of a written contract uncertain, although the language appears clear on the face of the contract. Id. To determine whether there is an ambiguity, it is proper for a court to hear evidence from both parties and then decide whether there are objective indications that the terms of the contract are subject to differing meanings. Id. As a result of the court’s finding that the parties’ experts had diametrically opposite interpretations of the survivor’s annuity provisions in the agreement, the court accepted extrinsic evidence.

As stated above, husband’s expert expressed his opinion that the term “fully reduced survivor annuity” was meant to indicate “fully reduced annuity.” Both experts agreed that “fully reduced annuity” is a clearly defined term under the Code of Federal Regulations which endows a surviv- or spouse with the maximum collectable benefits. Therefore, “fully reduced annuity” was a defined term which should have been given effect. A contract is not ambiguous if the court can determine its meaning with a knowledge of the facts on which its meaning depends. Vogel v. Berkley, 354 Pa.Super. 291, 511 A.2d 878 (1986). The mere existence of differing contractual interpretations by contracting parties does not render a contract ambiguous. Id. Nonetheless, the court in this case found an ambiguity in the contract because of the parties’ differing perceptions of wife’s share of the survivor’s benefits.

The operation of a coverture fraction upon the survivor’s annuity, however, which is the interpretation chosen by the trial court, changes the meaning of the term “fully reduced annuity” to “partially reduced annuity.” The Code of Federal Regulations defines “partially reduced annuity” as “the recurring payments under CSRS to a retiree who has elected less than the maximum allowable reduction in annuity to provide a current spouse annuity or a former spouse annuity.” C.F.R. § 831.603. Thus, it is clear that the parties could have used the term reflecting'the construction which husband urges this Court to adopt. The parties, however, chose to use the term “fully reduced annuity,” which according to both husband’s and wife’s experts, has only one meaning. The construction urged by husband changes the meaning of a clearly defined term. We will not re-write a contract or give it a construction that conflicts with the plain, ordinary, and accepted meaning of the words used. Litwack v. Litwack, 289 Pa.Super. 405, 433 A.2d 514 (1981). In addition, we will not disregard a provision in a contract if a reasonable meaning may be ascertained from it. Marcinak v. S.E. Greene School Dist., 375 Pa.Super. 486, 544 A.2d 1025 (1988). In construing a contract, every part of the agreement must be taken into account and given effect, if possible. Id.; Boyce v. Smith-Edwards-Dunlap Co., 398 Pa.Super. 345, 580 A.2d 1382 (1990).

Moreover,

the unexpressed understanding of one of the parties to a contract as to its meaning is usually of no legal significance ... as it cannot be used to overthrow the effect of the intention actually made manifest in the contract.

4 Williston on Contracts § 606. We have held that where the parties’ agreement has been reduced to a writing, the actual intent of the parties is not relevant unless it has been expressed in the writing. Pauli v. Pivar, 161 Pa.Super. 233, 53 A.2d 826 (1947); Warren v. Greenfield, 407 Pa.Super. 600, 595 A.2d 1308 (1991). The terms of the agreement in this case were disputed, but they were not ambiguous. Since the terms were not ambiguous, the trial court erred in failing to give effect to the plain meaning of the term “fully reduced benefit” in paragraph 13 of the agreement. Litwack, Vogel, Marcinak, supra.

As a final note, we recognize that husband opposes wife’s arguments because, he argues, to grant the relief requested by wife would be an impermissible re-writing of the parties’ contract. Husband finds the following passage in the agreement to be dispositive of the parties’ intent:

in addition to what has been previously stated, in addition to getting fifty percent of what has been identified as the marital portion of the plan, husband will also get the balance of the plan benefits, anything which would be considered the non-marital portion of the plan.

N.T., 2/22/91 at 11 (emphasis supplied). Husband is correct in his assertion that a contract should be interpreted so as to give meaning to the entire agreement whenever possible. Boyce, supra. The first part of the property settlement agreement refers to the operation of the coverture fraction on the basic benefit provisions of husband’s pension. The same mathematical procedure, however, was not applied in reference to the survivor’s benefit. We fail to see how the passage set forth above, stating that husband “will also get the balance of the plan benefits,” proves husband’s argument that wife’s construction impermissibly rewrites the contract. The paragraph set forth above refers specifically [“in addition to what has been previously stated ... ”] to the coverture calculations concerning the basic plan benefits. In addition, to read this paragraph as husband urges would be to state that husband would collect the balance of the survivor’s annuity. This construction is absurd. The survivor’s benefits will not exist until husband is deceased. Husband is unable to collect the balance of a survivor’s annuity because he would be the decedent.

For the above stated reasons, the order of the trial court is reversed. Jurisdiction is relinquished.

      . Counsel for husband was assigned to read the agreement into the record.

      . This figure represents the length of the parties’ marriage.

      . The following is the full text of paragraph 10:

        Allocation of Retirement Benefits. The former spouse is entitled to' a portion of the employed spouse's basic retirement annuities. The retirement annuity of the former spouse shall be determined in the following manner:

        STEP I: The CSRS shall determine the monthly annuity payable to the employed spouse at the time of his retirement. For purposes of this Order this annuity may be termed the basic monthly retirement annuity-

        STEP II: The basic monthly retirement annuity determined in Step I shall be multiplied by a fraction, hereinafter referred to as the coverture fraction. The product (mathematical result) of this calculation shall be deemed the marital component of the employed spouse’s basic monthly retirement annuity. The numerator and denominator of the coverture fraction, expressed in years and the fractional part thereof (carried to four decimal places) shall be as follows:

        Numerator: For purposes of this Domestic Relations Order the numerator of the coverture fraction is: 13.7500 years.

        Denominator: The total period of credited service of the employed spouse. This period shall be determined by the system when the employed spouse retires.
      The product of multiplying the basic monthly retirement annuity by the above coverture fraction will be termed: "marital portion of the basic monthly retirement annuity."

        STEP III: The marital portion of the basic monthly retirement annuity computed in Step II shall be multiplied by .5. The product of this computation shall be the monthly annuity benefit of the former spouse.
      R.R. at 121a-122a.

      . During husband’s testimony, wife’s counsel attempted to introduce evidence of wife’s intentions in entering the agreement.
      WIFE’S COUNSEL: Your Honer, if I may be heard just briefly. Mrs. Krizovensky compromised her position.
      THE COURT: I understand what your position is. I understand that your argument would be that this was a specific agreement in exchange for the negotiations of certain other assets.
      WIFE'S COUNSEL: That is correct.
      THE COURT: If I start opening that up as to what I recognize to be a limited issue in dispute here I think that we are free to start opening up every original settlement agreement which I will not permit.
      N.T., 5/22/92 at 39-40.

      . The court stated that it believed "the definition of a fully reduced benefit is not in issue. What is in issue is whether or not [the survivor’s benefits] should be further reduced by the word ‘portion’.... ” N.T. 5/22/92 at 37.


author: OLSZEWSKI, Judge: WIEAND, Judge,

text:
    624 A.2d 644
    Joanne BENSON, Appellee, v. Dean L. BENSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 6, 1993.
    Filed May 7, 1993.

      William A. Hebe, Wellsboro, for appellant.
    John F. Cowley, Wellsboro, for appellee.
    Before WIEAND, OLSZEWSKI and HESTER, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment entered on March 3, 1992. The Honorable Robert E. Dalton denied appellant Dean Benson’s [“Dean’s”] exceptions to a master’s recommendation regarding the equitable distribution of the parties’ marital property. We affirm.

The subject of this appeal is whether the trial judge abused his discretion in valuing Dean’s business at the date of the parties’ separation, rather than a date closest to distribution. This issue, however, was decided in Dean’s favor by another panel of this Court in an unpublished memorandum. Benson v. Benson, 405 Pa.Super. 621, 581 A.2d 967 (1990) [Benson I ]. The Benson I panel ordered the trial judge to value the business at the date of equitable distribution. After the remand, however, the trial court reinstated its original order, relying on the recent case of McNaughton v. McNaughton, 412 Pa.Super. 409, 603 A.2d 646 (1992). Thus, the dispositive issue in this case is whether the trial judge abused his discretion when he reinstated his original order in apparent defiance of Benson I. Proper resolution of this matter necessarily involves a detailed account of the procedural and factual history relevant to this issue.

Dean and Joanne were married for 27 years before they separated in 1984. Joanne commenced an action for divorce on June 18,1984, which was entered by consent on October 12, 1987. The economic issues were scheduled to be resolved in September, 1989. Dean’s business, M & D Truck Lines [“M & D”], was among the marital property. M & D is a sole proprietorship over which Dean maintains full control. After a hearing, the master recommended that the parties receive a fifty-fifty share of the marital assets and valued the business at $121,000.00, its value as of December 31, 1984, the date closest to the parties’ separation. The trial judge adopted the master’s recommendation and denied Dean’s contention that the the business should be valued at $101,309.02 representing M & D’s value as of December 31, 1987, the date closest to distribution. The Superior Court entertained Dean’s and Joanne’s cross appeals in Benson I.

The Benson I panel rejected Joanne’s contention that the business should be valued at the date of separation because of Dean’s exclusive control over and ability to dissipate M & D’s assets. The panel held that the Divorce Code contemplates valuation of marital assets, in the usual case, as of the date of distribution. See Sutliff v. Sutliff, 518 Pa. 378, 543 A.2d 534 (1988); Tocco v. Tocco, 389 Pa.Super. 310, 567 A.2d 303 (1989). Thus, the panel reasoned:

In the matter sub judice, the lower court and the master failed to enumerate, nor can we find in the record, any reasons why the December 1984 valuation serves to provide for greater economic justice between the parties. Further, the record is devoid of any evidence that there may have been a situation between the parties “while [sic] marital assets have been consumed or disposed of by one of the parties, thus rendering current valuation impossible and making it necessary to rely on data that would otherwise be considered stale.” Sutliff v. Suttiff, 518 Pa. at 38, 543 A.2d at 536. Thus, we find the December 31, 1987 value to be more appropriate in this particular case.

Benson I, 581 A.2d 967 (Table).

Benson I was filed on August 8,1990, remanding the case to the trial court for proceedings consistent with its holding. On August 10, 1990, the trial court remanded the matter to the master for redistribution and ordered the parties to submit a valuation of M & D as of August 10, 1990. Neither party complied with the order and on August 19,1991, the trial court entered an order adopting the master’s recommendation that the court reinstate its original order, again valuing the business as of the date of separation. The master reasoned that since Dean was the sole proprietor of M & D Truck Lines and had the ability to directly control the business’s assets, the date of separation better worked economic justice between the parties. Dean filed exceptions to the new order, claiming that the trial court was obliged to follow the Superior Court’s order in Benson I and value the business as of 1987. His exceptions were denied on March 3, 1992.

In its opinion supporting its denial of Dean’s exceptions, the trial court cites McNaughton, swpra, for the proposition that the trial judge has discretion to choose valuation dates of marital assets in such a way that will work justice between the parties. McNaughton held that it was not an abuse of discretion for a trial judge to value, as of the date of separation, a closely held business which is largely under the control of one spouse to the exclusion of the other. A family business warrants a deviation from the general rule that assets should be valued as of the date of distribution because of the great influence that the controlling spouse may have upon the business’s assets. McNaughton at 413, 603 A.2d at 649. We hold that while a trial court may not generally be excused from complying with an order from the appellate court, the trial judge’s effort to comply with the order and the equitable nature of the Divorce Code warrant application of McNaughton in this case. The trial judge did not abuse his discretion in valuing M & D as’ of the date the parties separated. We therefore affirm the trial court’s order.

We recognize that generally a trial court may not fail to follow an order from the appellate court. In Haefele v. Davis, 380 Pa. 94, 110 A.2d 233 (1955), appellant argued that the trial court erred when it refused to hear “additional evidence” that supported his contention that the lower court lacked subject matter jurisdiction. In an earlier appeal in the same case, the Supreme Court held that appellant did not meet his burden in establishing that the lower court lacked jurisdiction. On subsequent appeal to the Supreme Court, appellant argued that since subject matter jurisdiction cannot be waived, the lower court erred in refusing to permit him to introduce the “additional evidence” after the first remand. The Supreme Court stated:

Here the question of jurisdiction was raised in this Court and determined. A lower court is without power to modify, alter, amend, set aside, or in any manner disturb or depart from the judgment of the reviewing court as to any matter decided on appeal. Under any other rule, litigation would never cease and finality and respect for orderly processes of law would be overcome by chaos and contempt. One trial of an issue is enough.

Id. at 95, 110 A.2d at 235 (citations omitted); see also, Blymiller v. Baccanti, 236 Pa.Super. 211, 344 A.2d 680 (1975); Pa.R.A.P. Rule 2591(a).

In this case, the Benson I panel considered the arguments made by both parties and determined that the trial judge abused his discretion by valuing the business on the date of separation. However, the Benson I panel, in ordering the trial court to value M & D on the date closest to the date of distribution, expressed its preference for the 1987 valuation, the most recent valuation before it. Since the case was not remanded until 1990, the trial court properly ordered the parties to file current valuations. A trial court generally cannot be faulted for molding an order designed to implement the appellate court’s decision. See Iacoponi v. Plisko, 419 Pa. 398, 214 A.2d 504 (1965) (trial court may create an order which is within the scope of an appellate court’s order). When neither Dean nor Joanne responded to the trial court’s order, the trial court was in the unenviable position of either valuing the business in frustration of Benson I (by valuing the business on the date of separation) or valuing it in frustration of the Divorce Code (by using a stale valuation). Since McNaughton was decided before the trial judge ruled on Dean’s exceptions to valuing the business as of the date of separation, we can hardly fault him for resolving his dilemma by relying on it.

Moreover, we note that since the Benson I panel decided that M & D should be valued on a date closest to the date of equitable distribution, we would normally be precluded from revisiting the issue. The “law of the case” doctrine prohibits an appellate court from revisiting an issue that has been decided in an earlier appeal in the same case between the same parties. Tyro Industries v. Wood, 418 Pa.Super. 296, 614 A.2d 279 (1992). However, our Supreme Court has indicated that the law of the case doctrine does not have absolute preclusive effect:

The doctrine of “the law of the case” is that, when an appellate court has considered and decided a question submitted to it upon appeal, it will not, upon a subsequent appeal on another phase of the case, reverse its previous ruling even though convinced it was erroneous. This rule has been adopted and frequently applied in our own State. It is not, however, inflexible. It does not have the finality of the doctrine of res judicata. “The prior ruling may have been followed as the law of the case but there is a difference between such adherence and res judicata; one directs discretion, and the other supercedes it and compels judgment. In other words, in one it is a question of power, in the other of submission.” The rule of the “law of the case” is one largely of convenience and public policy, both of which are served by stability in judicial decisions, and it must be accommodated to the needs of justice by the discriminating exercise of judicial power.

Burke v. Pittsburgh Limestone Corp., 375 Pa. 390, 393, 100 A.2d 595, 598 (1953).

We find that the equitable considerations of McNaughton should apply to this case. McNaughton’s premise is the simple proposition that when one spouse maintains control over the assets of a closely held business to the exclusion of the other, there is a distinct possibility that the spouse may exert that control in an effort to gain favorable treatment in divorce court. Thus, in such a situation, it is not an abuse of discretion to deviate from the general valuation rules. To require the excluded spouse to show actual proof of his or her spouse’s improper finagling, as the Benson I panel would, defies McNaughton’s premise. Thus, we would be working a potential injustice to Joanne under the pretense of protecting finality.

The Divorce Code seeks to attain a fair result for both parties to a divorce. Here, the master and the trial judge, who are best situated to formulate an equitable distribution scheme, have twice held that a more fair result would be achieved by valuing M & D Truck Lines at the date the parties separated. This is the precise scenario sanctioned by McNaughton. To ignore McNaughton in favor of an illusory interest in finality (the case has already been in the courts for years beyond what should be necessary to fashion an equitable distribution), would be anomalous.

Judgment affirmed.

Concurring statement by WIEAND, J.

WIEAND, Judge,

concurring:

I concur. The date of separation, in my judgment, was the date contemplated by the legislature for the evaluation of marital assets in divorce actions. See: 23 Pa.C.S. § 3501(a). This is particularly so in cases where one spouse owns and operates a business. The other spouse should neither benefit from nor be prejudiced by the individual activity of the business-operating spouse after separation. To permit the value of the business to be increased or reduced following separation because of the individual efforts of the working spouse is to encourage an unfair result, prolong the acrimony between spouses, prevent each spouse from getting on with his or her life, and discourage individual effort following separation.


author: WIEAND, Judge.

text:
    624 A.2d 648
    Wayne A. KRAMER, Appellant, v. Josephine G. CARRABINO and United Federal Savings Bank, Appellees.
    Superior Court of Pennsylvania.
    Argued Jan. 6, 1993.
    Filed April 28, 1993.

      Russell Montgomery, Altoona, for appellant.
    Rosadele Kauffman, State College, for appellee United Federal.
    Before WIEAND, OLSZEWSKI and HESTER, JJ.
   WIEAND, Judge.

In this appeal we are called upon to review a tripartite agreement, executed by an owner, a contractor and a lending institution, by the terms of which the lending institution agreed to hold all construction funds and make advances to the contractor as the work progressed. The trial court held that the lending institution by its agreement assumed no duty to the contractor and, in an action between contractor and lending institution, entered summary judgment in favor of the lending institution. After careful review, we reverse.

Joseph Carrabino and Josephine, his wife, employed Wayne A. Kramer to construct a residential dwelling on a lot owned by the Carrabinos at Port Matilda, Centre County. United Federal Savings Bank agreed to make a construction loan in the amount of $147,500.00, to be secured by a mortgage and note executed by the Carrabinos. Additional moneys required for completion of the residence were to be deposited with the bank by the owners. All moneys were to be held by the bank in a “loans in process account” and were to be advanced by the Bank to Kramer as the work progressed in five installments of $27,000.00 each. The final payment was due when the residence was “completed and ready for occupancy and Declaration of Acceptance has been submitted to Lender.” With respect to this final disbursement, the tripartite loan agreement provided as follows:

“When the Contractor requests the final inspection, Lender will require that Owner and Contractor make a joint inspection of the dwelling and execute a ‘Declaration of Acceptance,’ as supplied by Lender, and submit this joint declaration to Lender prior to Lender making the 5th Stage Disbursement.”

In reliance upon this agreement, Kramer agreed to waive his right to file a mechanics’ lien.

From the “loans in process account” the bank drew moneys needed to make the first four installment payments to the contractor as the work progressed. When the residence was completed, United Federal made an inspection and authorized a final payment to Kramer. A declaration of acceptance was forwarded to the contractor who signed it and forwarded it to the Carrabinos. Apparently a dispute then arose concerning the construction of the residence between the owner and the contractor. In any event, the Carrabinos refused to sign the declaration of acceptance and instructed the bank not to release the final payment.

The bank, without making any attempt to have the owner and contractor conduct a joint inspection of the residence and resolve their disagreement, refused to make any further payment to the contractor. Instead, the bank removed the remaining funds from the account which had been maintained for payment of the contractor and returned the funds to its general account. It also gave the owners credit for this amount against the face amount of the construction mortgage. Thereafter, the owners sold the property and satisfied the construction mortgage. As a consequence, the bank no longer has moneys in the special account with which to pay to the contractor the final installment.

Kramer filed an action against the Carrabinos and United Federal to recover the balance due under the construction agreement. Following the taking of depositions from Lawrence C. Saylor, the bank’s loan officer in charge of the Carrabino transaction, United Federal filed a motion for summary judgment. When the trial court granted it, Kramer appealed.

In Garbish v. Malvern Federal Savings and Loan Ass’n., 358 Pa.Super. 282, 517 A.2d 547 (1986), allocatur denied, 516 Pa. 641, 533 A.2d 712 (1987), the Court explored the duties of a lending institution to the owners with respect to the disbursement of a construction fund. The Court held that the lending institution had a fiduciary’s duty to disburse funds carefully and with the utmost good faith. We discern no basis for imposing any lesser duty on the lending institution with respect to the contractor where, as here, he has surrendered the right to file a mechanics’ lien in reliance upon the bank’s agreement with the contractor to hold and disburse those funds necessary to pay him for his work according to the parties’ agreement.

In determining the bank’s duties, of course, we must look to the terms of the construction loan agreement. In Henry v. First Federal Savings & Loan Association of Greene County, 313 Pa.Super. 128, 459 A.2d 772 (1983), the Court observed:

The interpretation of [a] construction loan agreement is a question of law for the court. While it is the court’s province to interpret the agreement, it is still inappropriate to enter a summary judgment if there are substantial disputes as to the facts regarding the interpretation or application of its terms. Murray v. Yoe, 170 Pa.Super. 348, 85 A.2d 623 (1952). However, if the terms of the construction loan agreement are clear and unambiguous, we believe that summary judgment is appropriate if the court is able to apply those terms to the facts of the case because of the absence of substantial factual disputes.

Id. 313 Pa.Super. at 134-135, 459 A.2d at 775. When interpreting a contract, a court will “imply an agreement by the parties ... to do and perform those things that according to reason and justice they should do in order to carry out the purpose for which the contract was made and to refrain from doing anything that would destroy or injure the other party’s right to receive the fruits of the contract.” Slater v. Pearle Vision Center, Inc., 376 Pa.Super. 580, 586, 546 A.2d 676, 679 (1988).

Pursuant to the tripartite loan agreement in the instant case, the lending institution assumed responsibility for holding the construction moneys and advancing them to the contractor as the work progressed. The parties’ agreement was intended to protect both the owner and the contractor, as well as the bank’s security for its loan. When the contractor advised that the work had been completed, the lending institution had a duty to require the owner and the contractor to make a joint inspection of the residence and disburse the balance of the funds as the parties agreed.

It is correct, as the bank argues, that it could not be made to pay the remaining funds to the contractor without the consent of the owners. On the other hand, the bank could not return the remaining funds to the owners or otherwise act to defeat the contractor’s claim against the fund from which he was to be paid. Its duty to exercise good faith to protect the interests of the parties extended to both the owner and the contractor. When the bank took the proceeds intended to be used as final payment to the contractor, returned the proceeds to its general fund and gave the owners credit therefor against the amount the owners were required to pay, the bank breached its agreement with the contractor. It failed to exercise that good faith in the performance of the contract which was an inherent part of its contract. It demonstrably damaged the contractor’s right to receive the fruits of the contract by depriving the contractor of the final payment while, at the same time, allowing the owners to sell the property free and clear of the construction mortgage without paying the contractor in full. The bank, in effect, allowed the owners to resell the property after paying only eighty (80%) percent of the contract price and without any effort to fulfill its contractual duty to use the moneys which it held to pay the contractor for his work.

The contractor’s right to expect the bank to act in good faith to preserve funds for the payment of the contractor’s legitimate claims does not depend upon principles applicable to third party beneficiaries. Here, the contractor was a party to the agreement which defined the rights of owner, contractor and lending institution. See generally: Reitz, Construction Lenders’ Liability To Contractors, Subcontractors, And Materialmen, 130 U.Pa.L.R. 416 et seq. (1981).

Whether we deem the funds in the “loans in process account” to be trust assets or impose, upon the lending institution the duties of an agent to its principal, it seems clear that the terms of the agreement required that the bank not divert funds from the construction fund without the consent of the owners and contractor. Without that consent, a final payment could not be made to the contractor. By the same agreement, however, the lending institution could not divert the construction funds to the owners without the contractor’s consent. This was the fund from which the contractor was to be paid, and the bank could not deal with the fund as its own -without risking liability to the party ultimately determined to be entitled to receive the same. When it attempted to do so by crediting the loan account of the owner without the contractor’s consent, the bank breached its agreement with the contractor. If it is ultimately determined that the contractor is entitled to some or all of the final payment, he is entitled to expect payment from the fund which the bank agreed to hold for that purpose.

Reversed and remanded for further proceedings. Jurisdiction is not retained.

      . Because the contractor and the lending institution were parties to the agreement, we find of no precedential value those decisions refusing to imply third party beneficiary rights in contractors who were not parties to agreements between lending institutions and owners. See: Urban Systems Development Corp. v. NCNB Mortgage Corp., 513 F.2d 1304 (4th Cir.1975); Embree Construction Group, Inc. v. Rafcor, Inc., 330 N.C. 487, 411 S.E.2d 916 (1992).