author: FORD ELLIOTT, Judge:

text:
    591 A.2d 290
    Jose Luis MARROQUIN, Appellant, v. MUTUAL BENEFIT INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued May 22, 1990.
    Filed April 11, 1991.
    Reargument Denied June 14, 1991.
    Jonathan M. Crist, Harrisburg, for appellant.
    Peter J. Speaker, Harrisburg, for appellee.
    Before OLSZEWSKI, MONTEMURO and FORD ELLIOTT, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from the order of January 17, 1990, granting appellee’s motion for summary judgment. Appellant argues that the trial court erred in finding that the “Family Car Exclusion” in a family member’s underinsurance motorist policy prohibits recovery by a resident family member where the tortfeasor is another resident family member covered by his own policy of liability insurance separate and distinct from the policy under which the underinsurance motorist benefits are claimed. We reverse and remand.

On January 19, 1989, appellant, Jose Luis Marroquin, was injured when he was struck by an automobile owned and operated by his brother, Jorge Marroquin. At the time of the accident, both appellant and his brother resided with their parents. The parent’s automobile policy was issued by appellee. This policy specifically covered two of their vehicles and provided liability coverage for family members. “Family member” was defined by the policy as any relative that lived in the same household as the named insured. Therefore, it is not disputed that appellant was insured under his parent’s policy. The policy also included one hundred thousand dollars in underinsured motorist benefits.

In addition, at the time of the accident, Jorge Marroquin, the tortfeasor, was the named insured on a separate policy, also issued by appellee, which covered only the vehicle that was involved in the accident. The policy issued to Jorge Marroquin contained the following “Family Liability Limitation”:

We do not provide Liability Coverage for any person, for ‘bodily injury’ to you or any ‘family member,’ to the extent that the limits of liability for this coverage exceed the limits of liability required by the Pennsylvania Motor Vehicle Financial Responsibility Law of 1984.

Appellant made demand on appellee for thirty-five thousand dollars, such amount being the stated liability limit of the policy issued to Jorge Marroquin. Appellee refused, asserting the above liability limitation. Appellant then executed a limited release for fifteen thousand dollars, the limit of liability required by the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. § 1701 et al. (Hereinafter MVFRL).

Appellant thereafter attempted to collect on the underinsured driver coverage in his parents insurance policy. The underinsured motorist section of the policy contained the following language:

I

We will pay damages which an “insured” is legally entitled to recover from the owner or operator of either an “uninsured motor vehicle” or “underinsured motor vehicle,” but not both, because of ‘bodily injury:’
1. Sustained by an ‘insured,’ and
2. Caused by an accident
II
‘Insured’ as used in this endorsement means:
1. ‘You or any family member.’
2. ‘Any other person’ ‘occupying’ ‘your covered auto.’
3. Any person for damages that person is entitled to recover because of ‘bodily injury’ to which this coverage applies sustained by a person described in 1. or 2. above.
‘Underinsured motor vehicle’ means a land motor vehicle or trailer of any type to which a bodily injury liability bond or policy applies at the time of the accident but the amount paid for ‘bodily injury’ under that bond or policy to an ‘insured’ is not enough to pay the full amount that the ‘insured’ is legally entitled to recover as damages.
III
In addition, neither ‘uninsured motor vehicle’ nor ‘under-insured motor vehicle’ includes any vehicle or equipment:
1. Owned by or furnished or available for the regular use of you or any ‘family member.’
2. Owned by any governmental unit or agency.
3. Operated on rails or crawler treads.
4. Designed mainly for use off public roads while not on public roads.
5. While located for use as residence or premises.

The “Definitions” section of the policy further defined the terms “you” and “family member”:

IV
Throughout this policy, ‘you’ and ‘your’ refer to:
1. The ‘named insured’ shown in the Declarations; and
2. The spouse if a resident of the same household.
V.
‘Family member’ means a person related to you by blood, marriage or adoption who is a resident of your household. This includes a ward or foster child.

On the basis of the above language, appellee denied appellant’s request for underinsured motorist benefits. Appellee asserted that the “Family Car Exclusion” clause (See III, 1) specifically excludes appellant’s brother’s automobile from the definition of an underinsured motor vehicle. Appellant filed this Declaratory Judgment action seeking a declaration that the “Family Car Exclusion” is void as against public policy and contrary to the express provisions as well as the intent of the Pennsylvania Motor Vehicle Financial Responsibility Law. In the alternative, appellant argues that under the provisions of the MVFRL the “Family Car Exclusion” shall not apply to the extent that the owner and/or vehicle or equipment owned by or furnished for the regular use of the insured or any “family member” is covered by a policy of liability insurance separate and distinct from the policy under which Underinsured Motorist Benefits are claimed. Appellant and appellee filed motions for the grant of summary judgment. On January 17, 1990, the trial court issued an opinion and order which determined that the “Family Car Exclusion” was neither in derogation of legislative intent in enacting the MVFRL nor a violation of public policy, thereby granting summary judgment in appellee’s favor. Most importantly, the trial court found that there existed no case law that dealt with the exact situation involved in this case. In so doing, the trial court distinguished between the rights of a “named insured” and the rights of family members who are protected under the policy but who pay no premiums. This appeal followed.

This court has often set forth the rules to be followed in deciding a motion for summary judgment:

On motions for summary judgment, the Court must consider the entire setting of the case and all of the papers that are included in the record. One who moves for summary judgment has the burden of demonstrating clearly that there is no genuine issue as to any material fact. The Court must consider both the record actually presented and the record potentially possible at the time of trial. A hearing on the motion for summary judgment is not a trial on the merits, and the Court on such motion should not attempt to resolve conflicting contentions of fact. The Court is to accept as true all well pleaded facts in the plaintiff’s pleadings as well as the admissions on file, giving to the plaintiff the benefit of all reasonable inferences to be drawn therefrom. The record must be examined in the light most favorable to the non-moving party. In passing upon a motion for summary judgment it is not part of the court’s function to decide issues of fact, but solely to determine whether there is an issue of fact to be tried. All doubts as to the existence of a genuine issue as to material fact must be resolved against the party moving for summary judgment. A party should not be deprived of an adequate opportunity to fully develop his case by witnesses and a trial, when the issues involved make such procedure the appropriate one. It is often the case that although the basic facts are not in dispute, the parties in good faith may nevertheless disagree about the inferences to be drawn from these facts, what the intention of the parties was as shown by the facts, [sic.] Under such circumstances the case is not to be one to be decided by the Trial Judge on a motion for summary judgment.

Hess v. Fuellgraf Electric Company, 850 Pa.Super. 235, 237-238, 504 A.2d 332, 333-334 (1986) (citations omitted) quoting Schacter v. Albert, 212 Pa.Super. 58, 61-62, 289 A.2d 841, 843 (1968). “On appeal from an order entering summary judgment, this court will reverse the trial court upon a showing of an error at law or a clear abuse of discretion.” Jones v. Keystone Insurance Company, 364 Pa.Super. 318, 528 A.2d 177 (1987) allocatur denied 518 Pa. 613, 540 A.2d 535 (1988) quoting Miller v. Federal Kemper Insurance Company, 352 Pa.Super. 581, 585-586, 508 A.2d 1222, 1225 (1986).

Appellant presents three arguments on appeal. First appellant argues that the “Family Car Exclusion” is invalid under Pennsylvania law as against the public interest under the circumstances as presented in this case. Second, appellant claims that the application of the “Family Car Exclusion” to benefits from a separate policy on which appellant is insured violates legislative intent. Third, appellant claims that the lower court erred in denying underinsurance benefits to appellant under his parents’ policy since he was an insured as defined by the MVFRL and the definitions of the policy itself.

Appellant first argues that the “Family Car Exclusion” as applied to underinsured motorist benefits in the instant case is void as against the public policy expressed by the language of the MVFRL and interpreted by the case law of Pennsylvania and Minnesota. In explaining the relevance of Minnesota case law, appellant cites the similarity of that state’s motor vehicle insurance legislation, asserting that Pennsylvania courts have often relied upon Minnesota law for guidance in this field. As set out by one author, the public policy considerations that were taken into account when including underinsured motorist provisions in the MVFRL were as follows.

The Financial Responsibility Law has a number of related policy goals. Chief among them is the establishment of a liberally compensatory scheme of uninsured and underinsured motorist protection. The Financial Responsibility Law also acts to eliminate the distinctions in coverage between uninsured motorist protection and underinsured motorist protection.
(a) Full Compensation. In cases arising under the Uninsured Motorist Act, the courts have always discerned a liberally compensatory intent in the law and construed the statute to serve that end. This intent is preserved, if not strengthened, in the Financial Responsibility Law..
The Uninsured Motorist Act requires that insurance protection be afforded for the protection of persons insured thereunder who are legally entitled to recover damages from owners and operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom, (footnote omitted).
The Financial Responsibility Law similarly states that uninsured motorist coverage shall provide protection for persons who suffer injury arising out of the maintenance or use of a motor vehicle and are legally entitled to recover damages therefor from owners or operators of uninsured motor vehicles, (footnote omitted).
The Financial Responsibility Law adds a virtually identical clause with respect to underinsured motor vehicles, replacing the word ‘uninsured’ with ‘underinsured’, (footnote omitted)
The language in the Uninsured Motorist Act was considered by the Pennsylvania Supreme Court when it declared that the act was to be interpreted as having a liberally compensatory intent, (footnote omitted) That this language is preserved in the new law indicates the drafter’s intention that the Financial Responsibility Law be construed in the same fashion....
(b) Integrating Undermsuffed Motorist Coverage with Underinsured Motorist Coverage. A second goal of the Responsibility Law is to eliminate the distinction in coverage between uninsured motorist coverage and underinsured motorist coverage, (footnote omitted)

Pennsylvania Motor Vehicle Insurance, An Analysis of the Financial Responsibility Law, Ronca, Sloane, Mundy, Pennsylvania Trial Lawyers Association, (1986) at 96-98. Decisions of this court have discussed these same policy considerations but have recognized certain limitations thereon.

In Wolgemuth v. Harleysville Mutual Insurance Company, 370 Pa.Super. 51, 535 A.2d 1145 (1988), this court, sitting en banc, held that a guest passenger who was injured in a one vehicle accident could not recover underinsurance benefits under a policy applicable to the host vehicle when the passenger already had received the limits of liability coverage under that same policy. While interpreting the statute, we stated:

The purpose of underinsured motorist coverage is to protect the insured (and Ms additional insureds) from the risk that a negligent driver of another vehicle will cause injury to the insured (or his additional insureds) and will have inadequate liability coverage for the injuries caused by his negligence.... The language of the statute itself suggests that underinsurance motorist coverage requires the existence of at least two applicable policies of motor vehicle insurance. See 75 Pa.C.S.A. § 1731(c). An under-insured motor vehicle, must, by it definition, be an insured vehicle. Thus, the statute contemplated one policy applicable to the vehicle at fault in causing the injury to the claimant and which is the source of the liability coverage (which is ultimately insufficient to fully compensate the victim), and a second policy, under which the injured claimant is either an insured or a covered person. It is the second policy which the statute contemplates as the source of underinsured motorist coverage, where the liability coverage provided by the first policy of insurance is insufficient to fully compensate the claimant for his injuries.

Wolgemuth v. Harleysville Mutual Insurance Company, supra, 370 Pa.Super. at 58, 535 A.2d at 1149. The court determined that to allow Wolgemuth to “recover underinsured motorist benefits from appellee Harleysville would be to convert the essentially first party underinsured motorists coverage into third party liability coverage.” Wolgemuth v. Harleysville Mutual Insurance Company, supra, 370 Pa.Super. at 60, 535 A.2d at 1150. The court specifically found that the definition of an underinsured motor vehicle contained in the policy (containing a “Family Car Exclusion” clause such as is present in the instant case) is not violative of public policy.

In Newkirk v. United Services Automobile Association, 388 Pa.Super. 54, 564 A.2d 1263 (1989), this court extended the rationale set forth in Wolgemuth. In Newkirk, a woman was injured in a one vehicle accident in which her husband was driving. Mrs. Newkirk, as the spouse and resident of the same household as the named insured, was classified as a class one beneficiary. Because of a family liability exclusion, Mrs. Newkirk received only $15,000 in liability payments from her husband’s policy. She then made demand of the insurance company for the full amount of underinsured motorist coverage available under the same policy from which she received her liability limit. Again, there existed only one insurance policy. The insurance company refused, citing the Family Car Exclusion in the insurance policy. Citing Wolgemuth, this court again recited the importance of more than one policy of insurance for recovery of underinsured motorist benefits. The fact that Mrs. Newkirk was a class one beneficiary, and not a class two beneficiary as was Wolgemuth, was insufficient to cause the Family Car Exclusion clause to be declared invalid. The Newkirk court reiterated that it was not the intent of the legislature to allow the substitution of less expensive underinsured motorist coverage for liability coverage. The history as well as the current status of underinsured motorist coverage in this Commonwealth, as set out in Wolgemuth, was further delineated by this court in Newkirk:

We explained that prior to the passage of the MVFRL, ‘underinsured motorist coverage, was not required in Pennsylvania or regulated by statute’. Because of this, those claimants who purchased uninsured motorist coverage were in a better position when they were involved in a car accident with an uninsured tortfeasor rather than an underinsured tortfeasor. If they were hit by an uninsured tortfeasor, they could recover from their uninsured motorist benefits; however if they were hit by an underinsured tortfeasor, they could not recover from that coverage, but were limited to recovering the minimal amount of benefits available to them under the tortfeasor’s insurance. The legislature enacted the underinsured motorist coverage in the MVFRL to resolve this anomaly---- We also [have] noted that the language utilized by the legislature in section 1731(c) of the Motor Vehicle Financial Responsibility Law (MVFRL) suggests that underinsured motorist coverage requires the existence of at least two policies of motor vehicle insurance.

Newkirk v. United Services Automobile Association, supra, 388 Pa.Super. at 57-58, 564 A.2d at 1265.

Although declining to address the issue, the Newkirk court foresaw a situation arising that is substantially similar to the one now before this court. The court stated:

It is important to keep in mind in this case that we are considering whether Mrs. Newkirk is precluded from recovering both liability and underinsured motorist coverage from the same policy, that is, her husband’s policy with the USAA. We are not addressing the issue of whether the “family car exclusion” could be enforced to bar a wife’s recovery of underinsured motorist benefits through her own separate automobile insurance if she was injured while riding as a passenger in another vehicle, where the third party benefits which she recovered from her husband’s insurance failed to pay her losses and damages. See e.g., DeVille v. State Farm Mutual Automobile Insurance Company, 367 N.W.2d 574 (Minn.CtAppeals 1985) (rule that 'family car exclusion’ is enforceable against plaintiff who is attempting to convert underinsured motorist coverage into liability coverage does not apply or extend to situation where wife recovered under husband—tortfeasor’s ‘liability coverage and is now seeking underinsured motorist benefits from her own personal policy with underinsured motorist coverage purchased by her for her own individual protection.’)

Newkirk v. United Services Automobile Association, supra, 388 Pa.Super. 54, 63, n. 8, 564 A.2d 1263, 1267, n. 8 (1989). The Newkirk court thus directs us to the primary case that we consider under Minnesota law.

In DeVille v. State Farm Mutual Automobile Insurance Company, 367 N.W.2d 574 (1985), the Minnesota Court of Appeals invalidated the “Family Car Exclusion” in circumstances involving two policies of insurance. In that case, Jennifer DeVille was injured while riding as a passenger on her husband’s motorcycle. After recovering the limits of her husband’s liability insurance, she sought underinsured motorist benefits from a separate individual policy that she had purchased for her own automobile. Her policy contained a “Family Car Exclusion”. The court in DeVille stated:

DeVille recovered under the tortfeasor’s liability coverage and is now seeking underinsured motorist benefits from her own personal policy with underinsured motorist coverage purchased by her for her own individual protection. This is classic “first-party” coverage and should follow her wherever she may be located when injured. She paid separate premiums for the car registered to her, and the policy was issued to her. To hold otherwise would be to carve out a new exception to the Sarvela rule, applicable when the tortfeasor and the victim are a married couple. This is an exception that we cannot make. Although married, DeVille is a separate person from her tortfeasor husband, owns a separate automobile, and has a separate policy. We cannot infer that the two are somehow acting as one and attempting to convert underinsured motorist coverage into liability coverage.

DeVille v. State Farm Mutual Insurance Company, supra, 367 N.W.2d at 577. The Sarvela rule to which the court refers originated in American Motorist Insurance Company v. Sarvela, 327 N.W.2d 77 (Minn.1982). This rule states that a policy provision which excludes underinsured motorist benefits when the insured is injured while occupying a vehicle owned by the insured or family member is presumed to be invalid. However, a limited exception to this rule involves cases in which the plaintiff is attempting to convert underinsured coverage (first-party coverage) into liability coverage (third-party coverage). Therefore, the Pennsylvania cases of Wolgemuth and Newkirk are not considered adverse to the Sarvela rule since both fall squarely within the exception to the rule.

Most important to the disposition of the instant case is that the Minnesota court in DeVille found that DeVille’s particular factual situation did not fall within the exception. As we now determine that the findings made in DeVille are consistent with Pennsylvania case law as well as Pennsylvania public policy as represented by the MVFRL, we adopt the reasoning and conclusions contained therein.

We must now determine whether the factual situation in the instant case necessitates, under a DeVille analysis, the invalidation of the “Family Car Exclusion” provision in the parents’ policy. We find that such a provision is invalid and unenforceable as being void as against public policy. Ascertainable from the language appearing in the MVFRL and the cases of DeVille, Newkirk, and Wolgemuth is the fact that this Commonwealth considers underinsured motorist coverage to be in the public interest. It is also apparent that the legislature foresaw the existence of more than one policy of insurance as necessary for an injured to recover such benefits, such a limitation preventing insureds from substituting less expensive underinsured motorists coverage for liability coverage.

In the instant case, there was no question that two insurance policies were involved. The parents’ insurance agreement clearly stated that it did not extend liability coverage to any vehicle that was not a “covered vehicle” and was owned by a family member. Jorge Marroquin’s individual insurance policy was therefore responsible for liability damages. Under the reasoning employed in DeVille, the insurance coverage in the instant case is identical to that enjoyed by appellant in DeVille. When describing DeVille’s insurance the pivotal language used by the Minnesota court is that “[t]his is ‘first-party coverage,’ and it should follow her wherever she may be located when injured.” DeVille v. State Farm Mutual Automobile Insurance Company, supra, 367 N.W.2d at 577. In the instant case, there is no dispute that appellant’s underinsured motorist coverage followed him to whatever point that he may have been injured. The only bar to his recovery was that his brother owned the vehicle that injured him. Under the facts of this case, such a bar was not justified as its purpose was not to convert underinsured motorist coverage into liability coverage.

Appellee argues that the number of policies is not dispositive and that such a ruling allows several family members to manipulate the amount of insurance that they buy under several policies so as to substitute underinsured motorist coverage for liability coverage. We answer such an allegation with the reasoning in DeVille. Under circumstances such as those present in this case, we will not infer, without more, that the parties “are somehow acting as one and attempting to convert underinsured motorist coverage into liability coverage.” Id.

Finally, we address appellee’s contention that the instant case is distinguishable from DeVille because appellant is not the “named insured” in this case and as such did not pay premiums to appellee. It is this distinction upon which the trial court bases much of its decision. We determine that this distinction is not dispositive. First, as we have discussed above, the pivotal language in DeVille was not the identity of the person paying the premiums, but rather what type of coverage was enjoyed by insureds. We do not interpret DeVille as fashioning distinctions based upon the identity of the person making a premium payment.

Next, any suggestion by the trial court that this distinction was supported by the Minnesota Court of Appeals’ decision in Linder by Linder v. State Farm Mutual Automobile Insurance Company, 364 N.W.2d 481 (1985), is incorrect. The trial court adequately summarizes the facts and holding of Linder.

[T]he plaintiff was struck by a vehicle driven by her brother and was paid liability limits on that vehicle. She then sought underinsurance motorist coverage pursuant to separate policies on two other family vehicles. The insurer refused to pay on the basis of a family car provision in those separate policies. The court held that the family car provisions were valid, rejecting claims that its provisions violated statutes mandating underinsured motorist coverage and public policy.

Trial court opinion, 1/17/90 at 7. However, Linder was not denied underinsured motorist coverage because she was not the “named insured” and did not pay premiums. Linder was denied coverage because all three insurance policies involved were in the name of the same insured, her father. Since that was the case, if the “Family Car Exclusion” were to be invalidated, nothing would prevent the father from converting his inexpensive underinsured motorist coverage into liability coverage. Indeed, Linder supports the proposition that it is the type of coverage that is of paramount importance. Appellant was denied coverage, just as her father (the Named Insured) would have been had he been the injured party.

In addition, we find that appellant is not precluded from eligibility for underinsured motorist benefits due to the language contained in the policy. The portion of the insurance policy detailing the underinsured motorist coverage clearly equates the coverage enjoyed by an insured with that of their family members. Appellant, therefore, is eligible to receive underinsured motorist benefits under the terms of the contract. Similarly, appellant clearly falls within the definition of an “insured” as defined by the MVFRL at 75 Pa.C.S. § 1702.

We therefore determine that appellant has established, under the circumstances of this case, that the “Family Car Exclusion” contained in the insurance policy issued to his parents (and extended to him) is invalid under Pennsylvania law. We also determine that absent this exclusion, appellant is eligible to recover under the terms of that policy. Accordingly we reverse the order of the trial court granting summary judgment in favor of appellee and remand this case for action not inconsistent with this opinion.

Order reversed. Case remanded.

      . We include only those sections of the policy that are relevant to the disposition of this case.

      . Appellant specifically argues that the term “underinsured motor vehicle” as defined by the insurance policy under which he was seeking benefits was more narrow than the statutory definition of the term as it was defined in the MVFRL. Consequently, appellant claims, the restriction is in derogation of legislative intent and is therefore void. However, due to our resolution of appellant’s first and third arguments, we need not address this contention.

      . We note that appellant is actually comparing the MVFRL to Minnesota motor vehicle insurance legislation as it existed at the time that the Minnesota Court of Appeals decided DeVille v. State Farm Mutual Automobile Insurance Company, 367 N.W.2d 574 (1985), discussed infra. Such a distinction does not detract from the relevance of DeVille, and subsequent cases espousing the principles set forth in DeVille, to the current state of Pennsylvania law.

      . We note that the holding in DeVille has been superseded by statute. In 1985, the Minnesota legislature amended Minn.Stat. § 65B.49, which now reads, in part:
      The uninsured and underinsured motorist coverages required by this subdivision do not apply to bodily injury of the insured while occupying a motor vehicle owned by the insured, unless the occupied vehicle is an insured motor vehicle.
      However, the relevance of DeVille and its progeny (the statutory amendment does not affect policies of insurance entered into prior to its enactment) is not altered by the legislative amendment. The Minnesota legislature interpreted their motor vehicle insurance legislation as it existed at the time of DeVille just as we now interpret our legislation. The MVFRL contains no language that parallels the Minnesota amendment. Indeed, had the MVFRL contained identical language, the effect upon the instant case, given its particular factual circumstances, is unclear. See Petrich v. Hartford Fire Insurance, 414 N.W.2d 558, 562, n. 3 (Minn.App.1987). Should the Pennsylvania legislature pass any amendment to the MVFRL, the validity of our analysis interpreting the current state of Pennsylvania law need not be affected. This court is not required to anticipate legislative action.

      . Appellee disputes this point in his brief. However, counsel did admit, at argument, that this was an error. We note in response to a post submission communication on the part of counsel for appellee that the copy of the insurance policy supplied to this court in both the original and reproduced record was incomplete and difficult to read. Therefore, at the panel’s request, the Prothonotary notified the appellant to furnish this court with a complete and readable copy of the policy.

      . We note that the trial court’s use of the term "insured” is consistent with our definition of "named insured”.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    591 A.2d 298
    TOPP COPY PRODUCTS INC. and Topp Telecommunications, Inc., Appellants, v. Ernest SINGLETARY and Tony Noviello t/a Nova Construction Co. and Nova Construction Inc.
    Superior Court of Pennsylvania.
    Argued Oct. 4, 1990.
    Filed May 21, 1991.

      Joseph D. Smith, Williamsport, for appellants.
    Gary Weber, Williamsport, for appellees.
    Before OLSZEWSKI, BECK and HOFFMAN, JJ.
   BECK, Judge:

Appellant-tenant challenges the trial court’s grant of summary judgment to appellee-landlord based upon an exculpatory clause included in the parties’ commercial lease agreement. Tenant sued his landlord to recover for property damage caused by a water leak from the floor above the premises leased by tenant. On appeal tenant raises two issues: (1) whether the trial court erred in granting summary judgment to the landlord where the lease agreement and exculpatory clause were ambiguous; and (2) whether the trial court erred in not extending the law of the Commonwealth to recognize an implied warranty of habitability in a commercial lease.

After a complete review of the law relevant to the interpretation and application of exculpatory clauses, and after careful scrutiny of the clause and lease in question, we find the clause in this lease does not exculpate the landlord from liability based upon his own negligent conduct. Because we find the landlord is not immune from liability due to his alleged negligence, we need not address the tenant’s second issue regarding the recognition of an implied warranty of habitability. We reverse the trial court’s grant of summary judgment to the landlord, and remand for further proceedings consistent with this opinion.

We initially note summary judgment “shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.Civ.P. 1035(b). On review of a trial court’s grant of summary judgment, we must determine whether there exist any genuine issues of material fact. Bobb v. Kraybill, 354 Pa.Super. 361, 363, 511 A.2d 1379, 1380 (1986), appeal denied, 513 Pa. 633, 520 A.2d 1384 (1987). In our analysis of the issues presented,

[w]e must view the evidence in the light most favorable to the non-moving party and any doubts must be resolved against the entry of judgment. In so doing, we accept as true all well-pleaded facts in appellant’s pleadings and give appellant the benefit of all reasonable inferences to be drawn therefrom.

Ector v. Motorists Ins. Cos., 391 Pa.Super. 458, 463-64, 571 A.2d 457, 460 (1990), appeal denied, 525 Pa. 646, 581 A.2d 572 (1990). Although the evidence and all reasonable inferences are considered in a light most favorable to the appellant, the trial court’s conclusions are given appropriate deference. Therefore, “we may reverse the trial court only where there has been an error of law, or a clear or manifest abuse of discretion.” Travaglia v. C.H. Schwertner & Son, Inc., 391 Pa.Super. 61, 64, 570 A.2d 513, 514 (1989) (citations omitted).

The facts of this case are as follows. The tenant, Topp Copy Products, Inc. and Topp Copy Telecommunications, Inc. (referred to herein as Topp Copy or tenant), is in the business of selling and leasing office equipment. Topp Copy entered into a commercial lease for the first floor of a multi-storied building. For all periods relevant to this ease, the landlord, Singletary, was the owner of the building and the landlord on the commercial lease, In an apartment located above the premises leased by Topp Copy, a toilet developed a leak, resulting in substantial water damage to the tenant’s inventory stored in the leased unit. The plumbing fixture that broke and caused the subsequent water damage to the tenant’s inventory was not located in tenant’s leased unit.

Topp Copy sued Singletary alleging breach of implied warranty of habitability for residential premises, breach of implied warranty of habitability for commercial premises, and negligence. Singletary filed a motion for summary judgment contending that an exculpatory clause in the parties’ lease agreement barred tenant’s suit for the water damage caused by the broken plumbing fixture. The trial court granted Singletary’s motion after determining the exculpatory clause controlled the parties’ dispute. Topp Copy now appeals to this court.

Topp Copy challenges the applicability of the exculpatory clause included in the lease agreement. The clause, presented as paragraph 19 in the form commercial lease agreement, provides in full:

And in consideration of securing the within lease at the above-stated rent, the Lessee [appellant Topp Copy] does hereby release and discharge said Lessor [appellee Singletary], his heirs or assigns, from any and all liability for damages that may result from the bursting, stoppage and leakage of any water pipe, gas pipe, sewer, basin, water-closet, steam pipe and drain, and from all liability for any and all damage caused by the water, gas, steam, waste and contents of said water pipes, gas pipes, steam pipes, sewers, basins, water-closets and drains.

Topp Copy argues that this exculpatory clause is not applicable to its damage because the clause does not explicitly state the landlord is relieved of liability for his own negligence and because the clause is ambiguous when read in context with another clause in the agreement. Specifically, Topp Copy asserts that the language of paragraph 15 of the lease makes the exculpation by paragraph 19 ambiguous.

Our review of whether a contractual exculpatory clause is valid and enforceable involves a two part analysis. First we must inquire into whether the exculpatory clause in paragraph 19 is valid. Second, we consider whether the clause should be interpreted and construed to relieve a contracting party from liability for his own negligent conduct.

Our supreme court has held that an exculpatory clause is generally valid where three conditions are satisfied. Princeton Sportswear Corp. v. H & M Assocs., 510 Pa. 189, 193, 507 A.2d 339, 341 (1986); Employers Liability Assurance Corp. v. Greenville Business Men’s Ass’n, 423 Pa. 288, 291-92, 224 A.2d 620, 622-23 (1966). The three conditions are that (1) the clause “does not contravene any policy of law, that is, ... it is not a matter of interest to the public or State;” (2) the “contract is between persons relating entirely to their own private affairs;” and (3) “each party is a free bargaining agent ... [in that the agreement] is not in effect a mere contract of adhesion.” Employers Liability, 423 Pa. at 291-92, 224 A.2d at 623; see also Princeton Sportswear, 510 Pa. at 193, 507 A.2d at 341; Garbish v. Malvern Federal S. & L. Ass’n, 858 Pa.Super. 282, 302, 517 A.2d 547, 557 (1986), appeal denied, 516 Pa. 641, 533 A.2d 712 (1987); Richard’s 5 & 10 v. Brooks Harvey Realty Investors, 264 Pa.Super. 384, 386, 399 A.2d 1103, 1105 (1979).

If these conditions are met, and the clause is determined to be valid, the contract must still meet four additional standards in order to be “interpreted and construed to relieve a person of liability for his own ... acts of negligence.” Dilks v. Flohr Chevrolet, 411 Pa. 425, 434, 192 A.2d 682, 687 (1963). The four standards are that (1) the contract immunizing a party from liability for negligence must be construed strictly, “since they are not favorites of the law;” (2) the contract must state the intention of the parties “with the greatest particularity, ... beyond doubt by express stipulation, [and] no inference from words of general import can establish it;” (3) the contract must be construed against the party seeking immunity from liability; and (4) the burden of establishing the immunity is upon the party seeking protection of the clause. Employers Liability, 423 Pa. at 292-93, 224 A.2d at 623; Garbish, 358 Pa.Super. at 302, 517 A.2d at 557, Richard’s 5 & 10, 264 Pa.Super. at 384, 399 A.2d at 1103.

These seven considerations demonstrate that contracts providing for the immunity of parties from their own negligent acts are not regarded positively under the law of the Commonwealth. Under Pennsylvania law, exculpation clauses included in lease agreements will be subjected to a detailed and thorough review to determine their validity and enforceability. See, e.g., Employers Liability, 423 Pa. at 290-92, 224 A.2d at 621-23; Galligan v. Arovitch, 421 Pa. 301, 303, 219 A.2d 463, 464 (1966); Dilks, 411 Pa. at 430-34, 192 A.2d at 685-87.

The reason the law looks with disfavor on exculpatory clauses is that they excuse defendants from maintaining reasonable standards of care. Restatement (Second) of Contracts § 195, comments a and b (1981); Annotation, Validity of Exculpatory Clause in Lease Exempting Lessor from Liability, 49 A.L.R.3d 321, 325 (1973). Under such clauses defendants may be negligent with impunity. Because generally the law seeks to discourage negligence and because generally the law requires that wrongdoers be liable for their wrongful acts, the validity and enforceability of exculpatory clauses are interpreted in a limiting fashion and the language is strictly construed against the clause’s author. Galligan, 421 Pa. at 303, 219 A.2d at 464; Dilks, 411 Pa. at 430, 192 A.2d at 685.

In the instant case the trial court concluded, and Topp Copy does not now contest, that the exculpatory clause in question is valid. Trial Court Opinion, at 6-7. We agree with the trial court that the exculpatory clause does satisfy the initial three conditions required for validity. This clause, included in a commercial lease entered into between a business tenant and an individual landlord, is not a matter of public or state interest; and is included in an agreement relating completely to the parties’ private affairs. Moreover, Topp Copy does not contend that the commercial lease at issue is a contract of adhesion.

Although we find the instant exculpatory clause meets the initial three conditions for validity, that does not end our inquiry. Topp Copy specifically argues that the clause, although initially valid, is ambiguous and should not be interpreted or construed to immunize Singletary from his own negligent acts. Relying on the latter four standards presented above, Topp Copy contends that the exculpatory clause uses words of general import, and is ambiguous when read in conjunction with paragraph 15 of the lease. According to Topp Copy, because the exculpatory clause does not meet the four standards of construction, it can not be given effect to immunize Singletary from liability for his own negligent conduct.

As noted above, paragraph 19 of the lease releases and discharges Topp Copy “from any and all liability for damages that may result from the bursting, stoppage and leakage of any water pipe, ... water closet, ... and from all liability for any and all damage caused by the water, ... and contents of said water pipes, ... [and] water closets.” (Emphasis added). The trial court, relying on Jacob Siegel Co. v. Philadelphia Record Co., 348 Pa. 245, 35 A.2d 408 (1944), held that the clause was not ambiguous, and thus, paragraph 19 dispositively determined the rights of the contracting parties. Trial Court Opinion, at 6. The trial court stated “it is above dispute that ‘where the language used is plain and unambiguous, the rights of the parties must be determined by the provisions of the instruments wherein they committed their agreement to writing.’ ... This is such a case.” Id. We disagree. We find that the trial court erred when as a matter of law it concluded paragraph 19 expressly stipulates the parties’ intentions with respect to Singletary’s immunity from liability due to his own negligent conduct.

As our supreme court has clearly noted in Employers Liability Assurance Corp. v. Greenville Business Men’s Ass’n., a contract immunizing a party from liability for the damages caused by his own negligence must state such an intention “with the greatest particularity, ... beyond doubt by express stipulation, [and] no inference from words of general import can establish it.” 423 Pa. at 292, 224 A.2d at 623; see also Dilks, 411 Pa. at 434, 192 A.2d at 687; Perry v. Payne, 217 Pa. 252, 262, 66 A. 553, 556 (1907). This rule for interpreting exculpatory clauses is well established within the law of Pennsylvania, and has been consistently applied by the courts of this Commonwealth. See, e.g., Kotwasinski v. Rasner, 436 Pa. 32, 258 A.2d 865 (1969); Employers Liability, 423 Pa. 288, 224 A.2d 620 (1966); Dilks, 411 Pa. 425, 192 A.2d 682 (1963); Perry v. Payne, 217 Pa. 252, 66 A. 553 (1907); Richard’s 5 & 10 v. Brooks Harvey Realty Investors, 264 Pa.Super. 384, 399 A.2d 1103 (1979).

We particularly note that our supreme court recently reiterated the vitality of this interpretive rule in Ruzzi v. Butler Petroleum Co., Pa., 588 A.2d 1 (1991). The court in Ruzzi considered an indemnity clause provided in a construction contract entered into between the owners of a gasoline service station and a petroleum company. The contract covered the petroleum company’s reconstruction of the service station for the owners. The indemnity clause provided that the property owners would

exonerate, discharge, and agree to protect and save harmless and indemnify [the petroleum company] ... from any and all liability for claims for loss, damage, injury or other casualty to persons or property ... caused or occasioned by any leakage, fire, explosion or other casualty occurring through any imperfection in, injury or damage to, or by reason of the installation, use, operation and/or repair of the said equipment or of the premises.

Ruzzi, Pa., 588 A.2d at 3 (emphasis added). As a result of the petroleum company’s negligence, an employee of an independent contractor hired by the petroleum company was injured while working on the property. The injured employee filed suit against the petroleum company and recovered an award at trial. In the same consolidated lawsuit, the petroleum company claimed that the property owner should be required, pursuant to the terms of the contract, to indemnify it for all damages incurred. Considering the indemnification claim, the trial court found for the property owners and against the petroleum company. Id., 588 A.2d at 3. This court affirmed the trial court’s decision.

On appeal to the supreme court, Justice Papadakos, writing for the majority succinctly stated that

[t]he law has been well established in this Commonwealth for 87 years that if parties intend to include within the scope of their indemnity agreement a provision that covers losses due to the indemnitee’s own negligence, they must do so in clear and unequivocal language. No inference from words of general import can establish such indemnification.

Ruzzi, Pa., 588 A.2d at 4 (citing Perry v. Payne, 217 Pa. 252, 66 A. 553 (1907)). Because the rule of interpretation enunciated in Perry v. Payne was the law when the contract in Ruzzi was entered into, the court concluded it must assume that the contracting parties knew of that rule of law and “that the law would not recognize as effective their agreement concerning negligent acts ... unless an express stipulation concerning negligence was included in the document.” Id., 588 A.2d at 4 (emphasis in the original). Therefore, the court concluded, “the only intent that can be gleaned from this document is that the parties did not intend to indemnify for acts of the indemnitee’s negligence, since words of general import are used.” Id., 588 A.2d at 5.

The contractual situation before us is similar to that in Ruzzi. The exculpatory clause at bar, paragraph 19, releases and discharges Topp Copy “from any and all liability for damages that may result from the bursting, stoppage and leakage of any water.” (Emphasis added). These are plainly words of general import. Moreover, as the supreme court held in Ruzzi, we must also conclude that, when they entered into their lease, Topp Copy and Singletary knew of and understand the interpretive rule of law from Perry v. Payne. We assume Topp Copy and Singletary understood that under Pennsylvania law, an exculpatory clause immunizing a landlord from liability for his own negligent acts would not be enforced unless negligence was expressly stipulated in the clause. Therefore, we must conclude, “that the parties did not intend to [exculpate Singletary] for acts of [Singletary’s own] negligence.”

We find the trial court’s reliance on Jacob Siegel Co. v. Philadelphia Record Co., 348 Pa. 245, 35 A.2d 408, to be misplaced. In Jacob Siegel, our supreme court considered the enforceability of an exculpatory clause included in a commercial lease. However, unlike the clause considered at bar, the clause in Jacob Siegel specifically provided that the lessor was relieved of any liability for damages “caused by or resulting] from the negligence of the Lessor.” Jacob Siegel, 348 Pa. at 246, 35 A.2d at 408 (emphasis added). Therefore, the enforceability of the immunity in Jacob Siegel was in complete accord with Perry v. Payne, in that the clause expressly stipulated that the lessor was relieved of liability from his own negligent acts.

Because we find the instant exculpatory clause uses words of general import, and therefore, cannot be interpreted and construed to release and immunize Singletary from liability due to his own negligent conduct, we need not address Topp Copy’s second issue arguing for the recognition of an implied warranty of habitability in commercial leases. The trial court’s grant of summary judgment for appellee Singletary is reversed and this action is remanded for further proceedings consistent with this opinion.

Reversed and remanded. Jurisdiction is relinquished.

      . The lease in question was originally entered into in 1981 between Topp Copy and Peter and Artemas Golamis. The Golamises sold the building, in which Topp Copy was leasing the first floor, to appellee Singletary in 1985. The trial court determined that the conveyance of the property from the Golamises to Singletary also assigned the lease in question to Singletary. Trial Court Opinion, at 4 (citing Howell v. Sewickley Township, 352 Pa. 552, 43 A.2d 121 (1945)). Appellant does not challenge on appeal the trial court’s finding of a valid assignment of the lease agreement; therefore, that issue is considered abandoned and not before this court. Upper Gwynedd Township Authority v. Roth, 113 Pa.Commw. 239, 245 n. 9, 536 A.2d 875, 878 n. 9 (1988).

      . Appellant also filed a negligence claim against Tony Noviello, the sole proprietor of Nova Construction Company and Nova Construction, Inc. (Noviello). Topp Copy alleges that Singletary hired Noviello to inspect and, if necessary, repair the plumbing in the apartments located on the second floor of the building in question. Topp Copy contends that Noviello was negligent in the inspection and repair of the plumbing in the apartment located above Topp Copy’s leased premises.
      Solely at issue in this appeal is the grant of summary judgment to appellant Singletary. While Noviello joined in the appellate brief filed by Singletary, the lower court’s order granted judgment only for Singletary. Therefore, the negligence claim against Noviello is not at issue in this appeal and is not considered by this panel.

      . Paragraph 15 of the lease provides in pertinent part, "[a]ll damages or injuries done to the said premises other than those caused by fire and by ordinary wear and tear or by the acts or omission of the landlord shall be repaired by the Lessee herein." Reproduced Record, at 28a.

      . We note that the commercial lease in the instant case is a form lease. Although a form lease is not "drafted" in accordance with the lessor’s specific instructions, the lease is offered to the lessee-tenant as the lessor’s language. A form lease agreement proposed by the lessor will thus be considered drafted by the lessor and construed against him.

      . The supreme court has previously recognized and addressed the differences between an indemnity clause and an exculpatory clause. Dilks v. Flohr Chevrolet, 411 Pa. 425, 192 A.2d 682. In Dilks, the court stated:
      [w]hile an exculpatory clause—which deprives one contracting party of a right to recover for damages suffered through the negligence of the other contracting party—differs somewhat from an indemnity clause—which effects a change in the person who ultimately has to pay the damages—yet there is such a substantial kinship between both types of contracts as to render decisions dealing with indemnity clauses applicable to decisions dealing with exculpatory clauses, and vice versa.
      411 Pa. at 435 n. 11, 192 A.2d at 687 n. 11. Therefore, under Pennsylvania law, cases analyzing indemnity clauses are relevant and applicable to matters involving exculpatory clauses.

      . We recognize that almost sixty years ago, our supreme court, in Cannon v. Bresch, 307 Pa. 31, 160 A. 595 (1932), considered a fact pattern similar to the instant case, and an exculpatory clause identical to that at bar. The court held in Cannon, that the clause was valid and determinative of the parties’ rights. The tenant in Cannon argued, similar to appellant at bar, that the water damage was caused by the landlord’s negligence and the clause did not absolve the landlord "from liability for his acts of active negligence." Id., 307 Pa. at 34, 160 A. at 596. The supreme court held the clause was dispositive of the dispute, stating
      [t]he terms are emphatic—the word ‘all’ needs no definition; it includes everything, and excludes nothing. There is no more comprehensive word in the language, and as used here it is obviously broad enough to cover liability for negligence. If it had been the intention of the parties to exclude negligent acts they would have so written the agreement. This paragraph of the lease is clear and unambiguous. No rules of construction are required to ascertain the intention of the parties.

        Cannon, 307 Pa. at 34, 160 A. at 596. We find the supreme court’s more recent reiteration and reliance on the Perry v. Payne interpretive rule of law to be dispositive of the issue at bar.

      . Moreover, because we find the instant exculpatory clause cannot be given exculpatory effect, we do not decide whether paragraph 15, when read with paragraph 19, creates an ambiguity as to whether the landlord is relieved from liability for his own acts of negligence.


author: BROSKY, Judge.

text:
    591 A.2d 304
    TOOMBS NJ INC., a New Jersey Corporation, Trading as Forrestal Village Associates, a Limited Partnership and Village One Associates, a Limited Partnership and W. Scott Toombs, Appellants, v. The AETNA CASUALTY & SURETY COMPANY.
    Superior Court of Pennsylvania.
    Argued Jan. 29, 1991.
    Filed May 22, 1991.

      John E. McKeever, Philadelphia, for appellants.
    Martin G. Malloy, Philadelphia, for appellee.
    Before CAVANAUGH, CHULLO and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from an order granting appellee’s motion for summary judgment in a declaratory judgment action involving insurance coverage under a policy issued by appellee to appellant. Appellants advance three general arguments to support their position. First they argue that they are being sued for an invasion of a right to private occupancy which is covered under the liability policy. Second, they argue that the purchase of expanded contractual liability coverage compels appellee to defend the action in question. Third, they argue that DiMarco’s complaint alleges tortious claims that are covered under the policy. We affirm.

Appellant Toombs NJ, Inc. is a corporation that was involved in a real estate development project known as Princeton Forrestal Village. Toombs, and/or its partner, Village One Associates, became involved in contractual negotiations with Anthony DiMarco to build and operate two restaurants at Forrestal Village inside of a core Mall-type structure. On January 15, 1987, DiMarco and Village One signed a letter of intent for DiMarco to build and operate two restaurants under a 15 year lease. After the signing of the letter of intent, extensive negotiations and dealings were conducted to finalize the agreement to build and operate the restaurants. However, the negotiations were not without complications. For instance, DiMarco had difficulty obtaining financing for the restaurant project. Consequently, Toombs offered to become a partner or joint venturer in the restaurants and to secure financing. Furthermore, after the entering of the joint venture, Toombs agreed to pay a substantial portion of the architectural design work by the Hillier Group. However, despite the complexity of the negotiations, it is alleged by DiMarco that all details were worked out to the satisfaction of all involved parties and a “final agreement” was consummated on or about Thursday, June 18, 1987.

The following week DiMarco’s attorney spoke to appellants’ attorney regarding certain details of the agreement when allegedly appellants’ attorney indicated that there was a little problem but reassured him that “the deal was still on.” The following day, upon being called by DiMarco’s attorney, appellants’ attorney allegedly indicated that appellants were now talking with other restaurants. DiMarco called Scott Toombs who stated that the deal was off and that he never should have agreed to the terms he did. DiMarco later filed suit against appellants alleging damages for loss of earnings, salary and costs for architectural designs, some or all of which appellants allegedly used. DiMarco’s complaint alleged breach of contract, detrimental reliance and conversion of the architectural designs.

Upon receiving the complaint from DiMarco, appellants rendered the same to appellee and requested a defense. After some consideration, appellee indicated that it believed that the suit by DiMarco was not of a type that coverage was provided for. Consequently, appellee refused to defend appellants. Appellants responded by filing a declaratory judgment action in an effort to clarify whether or not there existed coverage for the underlying lawsuit. Motions for summary judgment were filed by both sides. After consideration the court found that appellants were not afforded coverage under the issued policies for the damages and actions in issue.

In a recent en banc decision of this court involving the obligations of several insurers who had issued policies to a defendant in personal injury suits, J.H. France Refractories v. Allstate Insurance Company, 396 Pa.Super. 185, 578 A.2d 468 (1990), we placed a great deal of focus on an analysis of the reasonable expectations of the parties relative to the contractual relationship they had entered into as insurer and insured. Particularly in actions like the present one a journey into complex wording of phrases and policy language can monopolize an inquiry and lead reasonable people away from the true purpose of the inquiry, that being the determination of a reasonable reading of the insurance contract. Keeping this idea in mind we find it easier to conclude that the trial court was correct in its determination that appellee owed no duty of defense to appellant under the facts presented here.

Upon reviewing the facts of the case, particularly those involving the underlying lawsuit, a fair and honest appraisal of DiMarco’s complaint indicates that DiMarco and appellee Toombs were involved in protracted negotiations preparatory to the establishment of two restaurants in the Mall under development. According to the allegations in the underlying complaint, a final agreement as to the complex terms had been reached at the end of the business week ending June 19, 1987. On Monday June 22, 1987, Toombs allegedly backed out of the deal finalized on Friday. DiMarco has now sued for breach of contract. The action, both in essence and upon its face, is one for a breach of contract. The nature of the potential damages and the nature of the acts alleged both indicate that the action is one based in contract and not in tort. The recovery sought relates to a breach of contract, not a tortious act. Appellants have not offered any precedent that indicates that indemnification is provided for such damages when a comprehensive liability policy is purchased, and for good reason. To allow indemnification under the facts presented here would have the effect of making the insurer a sort of silent business partner subject to great risk in the economic venture without any prospects of sharing in the economic benefit. The expansion of the scope of the insurer’s liability would be enormous without corresponding compensation. There is simply no reason to expect that such a liability would be covered under a comprehensive liability policy which has, as its genesis, the purpose of protecting an individual or entity from liability for essentially accidental injury to another individual, or property damage to another’s possessions, even if, perhaps, the coverage of the policy has been expanded to cover other non-bodily injuries that sound in tort.

Despite the fact that an overall view of the situation leads one to have great intuitive suspicion that coverage would be provided under the facts of the present case, appellants have attempted to argue this very theory relying on certain policy language. However, none of the arguments convince us that coverage is afforded for this factual scenario. The major argument advanced by appellants is that the alleged breach of the agreement would constitute a “wrongful eviction or other invasion of the right of private occupancy” thus constituting a “personal injury” under the policy language. However, we are unconvinced that what has been alleged could be reasonably thought of as wrongful eviction or other invasion of the right of private occupancy as designated in the policy.

We note initially that the task of interpreting a contract is generally performed by the court with the primary objective being the effectuation of the intent of the parties as is reasonably manifested by the language of the written instrument. Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 469 A.2d 563 (1983). Towards this goal, it is a fundamental rule of construction and interpretation that words and phrases be given their plain and ordinary meaning when possible. Consequently, we look to the following sources regarding the terms in question. Webster’s Ninth New Collegiate Dictionary defines evict in the following manner: “to recover (property) from a person by legal process, to put (a tenant) out by legal process ... to force out: expel.” Black’s Law Dictionary, Fifth Edition, defines eviction as “dispossession by process of law; the act of depriving a person of the possession of land or rental property which he has held or leased____ Deprivation of lessee of possession of premises____” Corpus Juris Secundum goes as far as to assert that “there can be no eviction without an antecedent possession by the tenant; one cannot be evicted from premises of which he has never had possession, ...” CJS § 447(b). Consequently, we conclude, the term wrongful eviction reasonably connotes a situation where a party was already in possession of the premises and then evicted without legal justification.

Secondly, even if we were to conclude that one could be “evicted” prior to taking possession of the premises, it would seem to greatly strain this concept to call the rather quick backing out of a negotiated contract for possession an eviction. Third, even if our scenario was somehow regarded as a technical eviction, nothing in the allegations of the underlying suit creates an impression that the act of reneging on the deal was tortious rather than contractual. As indicated above, the liability policy issued cannot be reasonably construed to indemnify for damages sounding in contractual breach. Such a holding simply is not reasonable in the commercial context that the transaction took place. Appellants, although citing numerous cases from numerous jurisdictions, have not cited any cases holding that a breaking of a lease prior to occupation has been considered a wrongful eviction for liability policy purposes. Nor do we think that when one contemplates the concept of wrongful eviction the present scenario comes into contemplation. As such, we cannot conclude that what is alleged in the underlying complaint can be reasonably thought of as stating a claim for wrongful eviction as contemplated in the policy. Nor are we inclined to construe the phrase “other right of private occupancy” to encompass the scenario presented here.

Appellants have set forth an argument that the policy in question does encompass essentially economic, i.e. contractual breach, damages. However, we find this argument unconvincing. Appellants point to the fact that they purchased expanded Contractual Liability Coverage and argue that this endorsement covers the damages alleged in the underlying complaint. A review of the endorsement in question, however, reveals that it provides coverage for liability that is contractually assumed, not liability that is based upon a contract breach. Normally, liability that is contractually assumed is excluded from coverage unless it is an incidental contract, a class of contracts that, under policy definitions, is relatively narrow in scope.

The endorsement in question expands the definition of incidental contract to include any contract relating to the conduct of the insured’s business. Thus, when this additional coverage is purchased the insurance coverage is expanded to include liability that is being imposed upon the insured by virtue of a contractual assumption of the liability. However, the nature of the damages for which recovery is sought are not changed by this endorsement to include damages from a breach of contract, rather the damages to which this endorsement is directed is the same as in the original broad comprehensive policy, bodily injury and property damage caused by an occurrence.

Appellants have relied heavily upon the case of Western Casualty & Surety v. International Spas of Arizona, Inc., 130 Ariz. 76, 634 P.2d 3 (1981). We find this case distinguishable from the present one. Western Casualty involved a situation where the insured, International Spas, terminated a lease with an individual who had been operating a juice and beverage bar on a portion of the spa property and also allegedly converted certain property owned by the lessee. The court considered the same personal injury clause presented here and found that the actions alleged to have taken place fell within the coverage of the policy. Appellants argue that this case compels a reversal of the trial court’s decision.

In Western Casualty the underlying plaintiff had been in full possession of the premises, a portion of the spa, and had an ongoing concern prior to being allegedly forced out of business without justification. The court concluded that those allegations activated coverage under the wrongful eviction clause. That the action was grounded in essentially tortious conduct is borne out by the court’s observation that two of the counts of the underlying complaint were for alleged intentional torts committed during the course of the wrongful eviction. Western Casualty is clearly different than the within case. It not only covered a situation where there was true possession of the leased premises, if the allegations were true, it also involved a clearly tortious wrongful eviction.

As a counter-argument to the trial court’s conclusion that the policy covered only tortious claims, appellants assert that the underlying complaint did assert an action for conversion of architectural designs and plans. Even assuming that the conduct alleged constitutes a conversion of property, (something which is less than certain considering the factual allegations), conversion of property, by itself, has not been demonstrated by appellant to be within the parameters of the policy. Conversion is not listed as one of the offenses included in the definition of personal injury for which injury arising therefrom would be a covered personal injury under the policy, and in Western Casualty the torts were found to have allegedly been committed during the course of the wrongful eviction.

Furthermore, a conversion of a tenant’s property by a landlord would seem to be a breach of a warranty of quiet enjoyment and ostensibly compensable under the “other invasion of the right of private occupancy” language in the policy. It would seem that a classical landlord-tenant relationship would be required to bring the conversion into the scope of the policy language. We have already indicated that the scenario presented should not be construed as a wrongful eviction within the policy’s meaning. Nor do we think that any misappropriation of plans could be considered to have occurred during a wrongful eviction or a breach of a warranty of quiet enjoyment. Rather, in the factual context presented, any conversion of property would have to be deemed to have occurred in the business partnership arrangement that existed between Toombs and DiMarco. As such, this argument must fail.

For the above reasons we conclude that the trial court correctly determined that under the policy issued appellants coverage is not provided for the facts alleged in the underlying complaint.

Order affirmed.

      . The policy defines personal injury as "injury arising out of one or more of the following offenses committed during the policy period (1) false arrest, detention, imprisonment or malicious prosecution; (2) wrongful entry or eviction or other invasion of the right of private occupancy ...”

      . In the present case it is unclear whether the parties ever entered into a formal landlord-tenant relationship. Appellants argue that DiMarco clearly alleges a right to occupy the premises based upon the agreement reached on June 18, 1987. However, a review of DiMarco’s complaint indicates that it alleges that the parties agreed, on June 18th, to "formalize the lease, with Special Lease Provisions and Addendum, the following week, namely the week of June 22, 1987.” Clearly, to the extent the parties may have never actually signed a lease appellants argument is weakened.

      . For additional discussion of this concept see cases of Fragomeno v. Insurance Co. of the West, 207 Cal.App.3d 822, 255 Cal.Rptr. 111 (1989), and Fireman's Fund Insurance Company v. City of Turlock, 170 Cal.App.3d 988, 216 Cal.Rptr. 796 (1985). In both cases the California court concluded that the underlying suit was essentially one for breach of contract and, therefore, outside the scope of the policy.

      . We do not wish to make a blanket statement regarding potential coverage of other factual scenarios, thus, we limit the scope of this decision to facts relatively similar to the present case. For instance, we do not wish to state positively and uncompromisingly that possession is essential to bring an action within the scope of the policy. Other jurisdictions have considered claims against landlords where a potential tenant was allegedly excluded from occupation solely because of race or creed. Some of these jurisdictions have found such a discrimination action against a landlord to be covered under the policy language. Gardner v. Romano, 688 F.Supp. 489 (E.D.Wis. 1988), State Farm Fire & Casualty Co. v. Westchester Investment Co., 721 F.Supp. 1165 (C.D.Cal.1989). If a blanket possession test were gleaned from this case such an action would be deemed outside of the policy. We are not willing to implement such a broad premise in this case. We would note that such an action for exclusion from rental property would have a clearly tortious basis. Thus, distinguishing it from the present case.
      Similarly, we do not wish to indicate that a claim which has some contractual basis or tie is per se outside the scope of coverage. In Beltway Management Co. v. Montgomery Mutual Ins. Co., 746 F.Supp. 1145 (D.C.1990), the district court for the District of Columbia found that a tenant council’s action against a landlord for breach of statutory and common law warranties of habitability was within the scope of a liability policy with the same relevant language as the within case. The court there found that the action sounded in constructive eviction and was therefore within the policy’s “invasion of a right of private occupancy" language. We note that in Beltway the action was by individuals occupying the premises in question. Further, to the extent a warranty of habitability is legally and/or statutorily imputed or implied into all residential leases in the District of Columbia the breach of the warranty colors the claim as, at least, quasi-tortious; thus, at least intuitively, differentiating that case from the present one.

      . The complaint alleges that DiMarco originally requested the Hillier group to start architectural design work but requested a cessation of work when financing was turned down. After appellants became joint venturers in the restaurant project the work was continued. Under agreements between appellants and DiMarco, both DiMarco and Village One were to pay a portion of the fees. In the event the relationship was terminated the design work was to become the property of Village One, provided that DiMarco was reimbursed for all expenditures made for the designs and plans. DiMarco’s complaint alleges that after appellants reneged on the restaurant deal they retained the designs and plans prepared by the Hillier Group for the joint venture and have not yet reimbursed DiMarco for his expenditures for the plans.


author: HOFFMAN, Judge:

text:
    591 A.2d 309
    HAMILL-QUINLAN, INC., trading and doing business as Merrill Lynch Realty v. Donald F. FISHER and Harry A. Digby, Appellant.
    Superior Court of Pennsylvania.
    Argued March 20, 1991.
    Filed May 22, 1991.

      J. Russell McGregor, Pittsburgh, for appellants.
    James P. Sommers, Pittsburgh, for appellee.
    Before ROWLEY, President Judge, and WIEAND and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the judgment entered in favor of plaintiff-appellee in a contract action. Appellants raise the following evidentiary claims on appeal:

[I] DID THE TRIAL COURT ERR IN ADMITTING EVIDENCE REGARDING INDEMNIFICATION AGREEMENTS?
[II] WAS THE ADMISSION INTO EVIDENCE OF AN UNDATED COPY OF A DOCUMENT CONTRARY TO THE BEST EVIDENCE RULE AND DID THE TRIAL COURT ERR IN ALLOWING EVIDENCE SURROUNDING THE DOCUMENT?

Brief for Appellants at 3. For the reasons that follow, we affirm.

On September 11, 1985, appellants, Donald F. Fisher and Harry A. Digby, entered into an exclusive, one-year listing agreement with appellee, Hamill-Quinlan, Inc., t/d/b/a Merrill Lynch Realty (“Merrill Lynch”), for the sale of a commercial property in Pittsburgh, Pennsylvania. In addition, the parties executed an addendum that excluded certain individuals and organizations from the listing contract for the first fifteen days of the listing, i.e., until September 26, 1985. In essence, the addendum provided that if Fisher and Digby sold the property to one of the listed persons or organizations on or before September 26, no commission would be due Merrill Lynch. One of the persons identified in the addendum was Ned Shekels. Shekels, as it turned out, was a real estate agent working for another broker, K. Goldsmith and Company (K. Goldsmith). During the one-year listing period, Fisher and Digby entered into an agreement to sell the property to Shekels. On April 7, 1986, Shekels assigned his right to purchase the property to the actual purchaser, RRZ Forsayle & Partners (“RRZ”), and in return K. Goldsmith received a brokerage fee of $13,500. See R.R. at 183. The property eventually was conveyed to RRZ by Fisher and Digby in October, 1986, for $230,000.

Thereafter, Merrill Lynch instituted the present contract action, seeking to recover the 10% commission it claimed it was due under its exclusive listing agreement. Fisher and Digby defended on the ground that the sale fell within the exclusion contained in the addendum to the listing agreement. The central issue at trial was whether an enforceable agreement to sell the property to Shekels was reached prior to September 26, 1985. Fisher and Digby attempted to show that an agreement with Shekels had been reached on September 24, 1985. Merrill Lynch both challenged the validity of the supposed September 24 agreement and attempted to show that an enforceable agreement of sale was not reached until April 7, 1986. The case proceeded to a jury trial and, on February 2, 1990, the jury returned a verdict in favor of Merrill Lynch in the amount of $23,000. The verdict was increased to $27,600 to include pre-judgment interest. Fisher and Digby filed post-trial motions, which were denied, and the molded verdict was reduced to judgment. This timely appeal followed.

Both claims on appeal concern the propriety of the court’s evidentiary rulings. As a general matter, the admissibility of evidence is a matter left to the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. Leonard by Meyers v. Nichols Homeshield, Inc., 384 Pa.Super. 1, 5, 557 A.2d 743, 745 (1989), appeal denied 525 Pa. 115, 575 A.2d 115 (1990); In re Hyduke, 371 Pa.Super. 380, 389, 538 A.2d 66, 71 (1988); see also L. Packel & A. Poulin, Pennsylvania Evidence, § 108.1 at 28 (1987 & Supp.1990) (hereinafter “Packel & Poulin”). The erroneous admission or exclusion of evidence alone, however, is not enough to warrant relief; there must also be a showing of harm to the party seeking relief. See Bessemer Stores, Inc. v. Reed Shaw Stenhouse, Inc., 344 Pa.Super. 218, 224, 496 A.2d 762, 765 (1985) (citations omitted); see also Packel & Poulin, supra § 108.2, at 30. “Consequently, appellants must prove that it was error to admit the challenged evidence and that they were prejudiced thereby.” Bessemer Stores, Inc. v. Reed Shaw Stenhouse, Inc., supra.

Appellants’ first claim concerns the court’s admission of evidence regarding indemnity agreements. The facts relating to this claim are as follows. On April 21, 1986, the actual purchaser of the property, RRZ, agreed to indemnify appellants from any claims made by Merrill Lynch for commissions on the sale of the property. K. Goldsmith, in turn, agreed to indemnify RRZ for any claims for commission. The effect of the two agreements was that the ultimate liability for any commission due Merrill Lynch was assumed by K. Goldsmith, the employer of Ned Shekels. On the first day of trial, appellants filed a motion in limine requesting that the court exclude from trial any reference to the indemnification agreements. The court denied the motion. As a result of this ruling, appellants chose to introduce evidence of the agreements during their examination of their own witness, Shekels, and Merrill Lynch cross-examined Shekels concerning the agreements.

On appeal, appellants argue that the indemnification agreements were irrelevant to the question whether and when a contract had been formed with Shekels, and that the admission of evidence concerning the agreements was prejudicial because it “was tantamount to the introduction of evidence of insurance.” Brief for Appellants at 12. Appellants misconstrue the basis for admission. “It is hornbook law that a witness’s motivation or inducement to testify is properly within the scope of cross-examination.” Commonwealth v. Baston, 242 Pa.Super. 98, 111, 363 A.2d 1178, 1185 (1976) (citing Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931)); see also Commonwealth v. Robinson, 507 Pa. 522, 526, 491 A.2d 107, 109 (1985) (cross-examination may be employed to test witness’s story, impeach credibility, and establish motive for testifying); O’Donnell v. Bachelor, 429 Pa. 498, 502, 240 A.2d 484, 486 (1968) (plurality opinion by Musmanno, J.) (“Once a witness commits himself to the ocean of a legal controversy, he must, under cross-examination, disclose the flag under which he sails”); Anderson v. Pittsburgh Ry. Co., 423 Pa. 550, 555, 225 A.2d 548, 551 (1967) (party’s interest may affect credibility, though not competency). As Packel & Poulin have noted:

A witness may be discredited by demonstrating that he or she has a reason to testify falsely. Wigmore classifies the emotions that might cause a witness to give false testimony into three categories: (1) bias, which is a personal attitude favorable or unfavorable to a particular party; (2) interest, which may flow from “[a] relation between the witness and the cause at issue;” and (3) corruption or conscious false intent. Bias, interest, and corruption do not render a witness incompetent, but such motives affect the witness’ credibility and should be considered in determining the weight to give his or her testimony. Consequently, evidence that a witness’ testimony may be colored by bias, interest, or corrupt motive is nearly always relevant.
Bias, interest, or corruption is usually established by demonstrating circumstances that might naturally lead a witness to favor or disfavor one party in a proceeding. Any evidence that supports an inference of bias, interest or corruption is relevant impeachment evidence. The commonly accepted types of proof relevant to show bias, interest or corruption include: family relationship or other personal connection suggesting favor or hostility, an employment relationship, status as a party in the case, and the possibility of financial gain or loss from the outcome of the case.

Packel & Poulin, supra § 608.3, at 423-24 (emphasis in second paragraph supplied) (footnotes omitted).

Here, Ned Shekels and his employer, K. Goldsmith, were to receive a brokerage fee of $13,500 for finding the ultimate purchaser of the property. The effect of the indemnification agreements, however, was to make K. Goldsmith liable for any commission due to Merrill Lynch. On these facts, an inference arises that Shekels had a direct interest in keeping in the treasury of his employer the money that Merrill Lynch was trying to extract by this action. As the trial court noted, the agreements were “certainly relevant information showing the interest of [Shekels] in the outcome of the lawsuit and went to the credibility of the witness.” Trial Court Opinion at 2. In light of these circumstances, the trial court did not abuse its discretion in admitting evidence concerning the indemnification agreements in order to impeach Shekels.

Appellants’ second claim concerns the court’s admission into evidence of a second copy of the agreement that appellants claimed they had reached with Shekels on September 24, 1985. At trial, appellants introduced a signed letter from Shekels to Fisher concerning the property in question. In the letter, Shekels, inter alia, “offered to purchase” the property for $280,000. The date “September 24, 1985” was typed at the top of the letter. In addition, the bottom right hand corner of the letter contained the following notation:

ACCEPTED AND AGREED TO THIS_DAY
OF_, 1985
BY_

See R.R. at 186. This paragraph was executed in Digby’s handwriting, listing the date of acceptance as the 24th of September, 1985, and both Digby and Fisher signed below the acceptance. Id. Digby testified that the original was not backdated, but was in fact executed on September 24, 1985. On cross-examination, however, Merrill Lynch produced a copy of the September 24 letter, which was identical to the original except for the fact that the handwritten date of September 24 was missing. Compare R.R. at 185 and R.R. at 186. Over appellants’ objection, Merrill Lynch questioned Digby concerning the discrepancy, and Merrill Lynch’s copy of the letter was admitted into evidence. The purpose of the cross-examination, obviously, was to call into question the truthfulness of appellants’ testimony regarding the time and manner of the execution of the letter, by suggesting that the date was added later in an attempt to defraud Merrill Lynch.

Appellants argue that the admission of the copy was erroneous because the original letter already had been admitted, and admission of the copy therefore violated the “best evidence” rule. We have noted that the best evidence rule,

requires a party who seeks to prove a writing for the purpose of establishing its terms to produce the writing unless the nonfeasability of production is satisfactorily established. Warren v. Mosites Construction Co., 253 Pa.Super. 395, 385 A.2d 397 (1978). Application of the rule is limited to those situations where the contents of the document are at issue and must be proved to make a case or provide a defense. Mars v. Meadville Telephone Co., 344 Pa. 29, 23 A.2d 856 (1942); Perry v. Ryback, 302 Pa. 559, 153 A. 770 (1931); Ragnar Benson, Inc. v. Bethel Mart Associates, 308 Pa.Super. 405, 454 A.2d 599 (1982); Warren v. Mosites Construction Co., supra. Where the contents of a document are merely evidence of, rather than material to, issues in the case the rule is inapplicable. Durkin v. Equine Clinics, Inc., 313 Pa.Super. 75, 459 A.2d 417 (1983).

N.C. Quandel Co. v. Slough Flooring, Inc., 384 Pa.Super. 236, 241-42, 558 A.2d 99, 102 (1989); see also Packel & Poulin, supra § 1001, at 693. The rationale for the rule is readily apparent: in light of the added importance that the fact-finder may attach to the written word, it is better to have available the exact words of a writing, to prevent “the mistransmitting [of] critical facts which accompanies the use of written copies or recollection,” and to prevent fraud. See Packel & Poulin, supra, at 694 (quoting McCormick, Evidence, § 231 (3d ed. 1984)).

Here, the court’s admission of the copy of the September 24 letter in no way implicated the concerns protected by the best evidence rule. It is undisputed that the supposed “best evidence” of the September 24 letter—i.e., the original letter—in fact was introduced by appellants during presentation of their defense, and, of course, the contents of that writing were essential to appellants’ defense. Merrill Lynch did not dispute that, by the time of trial, the original contained the handwritten date that appellants said it contained; Merrill Lynch did, however, dispute when the date of the acceptance was entered on the original. The copy introduced by Merrill Lynch, which did not contain a date of acceptance, thus was introduced to call into question the truthfulness of appellants’ evidence regarding the time of the acceptance. As Merrill Lynch notes in its brief, “[t]he undated version of the Letter shows that contrary to his testimony, Digby wrote in the date sometime after the original was signed, and after a copy was made of the signatures.” Brief for Appellee at 14. The court below properly recognized that the discrepancy between the original and the copy created a question for the jury concerning the truthfulness of appellants’ account of the execution of the acceptance, and was relevant to the question of when appellants in fact accepted Shekels’ offer to purchase the property. Accordingly, we hold that the trial court did not abuse its discretion in admitting this evidence.

For the foregoing reasons, we affirm the judgment below.

Judgment affirmed.

      . The trial court ruling in this case is similar to that found in cases where insurance company employees have been impeached by showing their connection with the company insuring a party to the lawsuit, a practice which our Supreme Court has approved. See, e.g., O'Donnell v. Bachelor, supra; Goodis v. Gimbel Bros., 420 Pa. 439, 218 A.2d 574 (1966); see also Packel and Poulin, supra § 608.3, at 425. The fact that this proper impeachment incidentally exposed the fact that the named defendants themselves would not be responsible for the commission alone is not a basis for exclusion. See Goodis v. Gimbel Bros., supra; see generally Packel & Poulin, supra.