author: WICKERSHAM, Judge: McEWEN, Judge,

text:
    434 A.2d 798
    Gerald T. LEONARD v. HARRIS CORPORATION and Hudson Machinery Company, Inc. and Bernard Rothman and Canterbury-Perfect Press, Inc. and James Cunningham and C & P Lithographic Service & Supply Company and Lumbermen’s Mutual Casualty Company. Appeal of HARRIS CORPORATION.
    Superior Court of Pennsylvania.
    Argued May 26, 1981.
    Filed Sept. 11, 1981.
    Petition for Allowance of Appeal Denied Dec. 21, 1981.

      Frank J. Eisenhart, Jr., Philadelphia, for appellant.

      Joan Saltzman, Philadelphia, for Leonard, appellee.
    Peter S. Miller, Philadelphia, for Hudson, appellee.
    Austin Hogan, Philadelphia, for Rothman, et al., appellees.
    George J. Guinta, Jr., Media, for Cunningham et al., appellees.
    John C. McFadden, Philadelphia, for Lumbermen’s, appel-lee.
    Before WICKERSHAM, McEWEN and WIEAND, JJ.
   WICKERSHAM, Judge:

On April 15, 1977, plaintiff-appellee, Gerald T. Leonard commenced this action in trespass and assumpsit against defendant-appellant, Harris Corporation (hereinafter Harris). Leonard alleged in his complaint that on August 17, 1976, while he was employed by T. J. Henry Associates, Inc. (hereinafter T. J. Henry), he injured himself by catching his foot in an offset printing press designed, manufactured, and sold by Harris. Leonard alleged that the accident occurred because of the defective condition of the press, the failure of Harris to provide proper instructions as to the cleaning and use of the press, and the lack of adequate warnings and safeguards on the press.

On August 16, 1978, Leonard and Harris stipulated through their respective counsel that Harris could join the following parties as additional defendants: Hudson Machinery Co., Inc., Bernard Rothman, Canterbury Press, Canterbury-Perfect Press, Inc., James Cunningham, C & P Lithographic Service & Supply Company, and Lumbermen’s Mutual Casualty Company. On September 6, 1978, Harris filed a complaint against these additional defendants seeking their contribution or indemnity. Harris averred in its complaint, inter alia, that Lumbermen’s Mutual Casualty Company (hereinafter Lumbermen) issued an insurance policy to T. J. Henry, Leonard’s employer, covering claims for workmen’s compensation which was in force and effect on the date of the accident. Harris alleged that although the insurance policy did not contractually obligate Lumbermen to undertake safety inspections of T. J. Henry’s plant and machinery, Lumbermen did periodically conduct such inspections. According to Harris, if it were established that Leonard’s injuries were caused by the defective condition of the press, inadequate warnings or safeguards, or the improper cleaning and use of the press, then Leonard’s injuries were caused by Lumbermen’s negligence in failing to discover and apprise T. J. Henry and its employees of these conditions during its safety inspections.

Three motions were presented to the Honorable Edward J. Bradley, President Judge of the Court of Common Pleas of Philadelphia County, for decision in this case. Two of these motions presented issues which were argued to this court on appeal, and they are as follows. On October 3, 1978, the additional defendant, Lumbermen, filed preliminary objections to Harris’ complaint asserting, inter alia, immunity under The Pennsylvania Workmen’s Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 et seq. (hereinafter the Act). The lower court sustained Lumbermen’s preliminary objections and dismissed Harris’ complaint on the grounds that Lumbermen, as the workmen’s compensation insurance carrier for Leonard’s employer, was improperly joined as a party in this action under section 303(b) of the Act.

The other motion was Harris’ petition filed on November 2,1978, for leave to join Leonard’s employer, T. J. Henry, as an additional defendant pursuant to Pa.R.C.P. No. 2253. In its proposed complaint in trespass against T. J. Henry, Harris demanded a judgment determining that T. J. Henry has no subrogation right against Harris for any sums which the employer has been or may be required to pay Leonard as workmen’s compensation. Leonard filed an answer opposing this joinder in which he alleged, inter alia, that T. J. Henry was immune from suit under section 303(b) of the Act. The lower court agreed with this allegation and denied Harris’ petition for joinder.

Harris took this appeal from the lower court’s order sustaining Lumbermen’s preliminary objections to Harris’ complaint and denying Harris’ petition for leave to join T. J. Henry as an additional defendant. We will first discuss the issue of whether Harris’ petition to join Leonard’s employer as an additional defendant was properly denied.

Harris argues on appeal that the lower court erred in not allowing the joinder of T. J. Henry for the purpose of determining the employer’s right to subrogation and Harris’ right to a credit for the amounts paid to Leonard as workmen’s compensation. Appellant urges this court to adopt the following rule:

(1) Joinder of the employer will be allowed for the sole purpose of having the trier of fact determine at trial whether the employer is solely or partially responsible for the plaintiff’s injury, and the degree of any partial responsibility.
(2) If the employer is found to be wholly or partially responsible for the plaintiff’s injury, his sole obligation to the plaintiff will be his obligation under the workmen’s compensation laws, but he will forfeit any right of subro-gation with respect to workmen’s compensation payments.
The employer will have no liability to any other defendant.
(3) If the employer is found to be wholly or partially responsible for the plaintiff’s injury, the total verdict to be awarded to the plaintiff will be reduced to the extent of the employer’s pro rata share. Other defendants will each be liable to the plaintiff for the full amount of the reduced verdict with their traditional rights of contribution against each other in the event any of them is called upon to pay more than his pro rata share.
(4) [I]f the employer is found not to be responsible for the plaintiff’s injury, he retains his right of subrogation and may exercise it with respect to any recovery by the plaintiff from the other defendants.

Brief for Appellant at 26-27.

Appellant contends that the above proposed rule would not conflict with section 303(b) of the Act, because it would in no instance subject an employer or his insurance carrier to any liability to a third party for damages, contribution, or indemnity. According to appellant, the above proposed rule is in complete harmony with the legislative scheme of limiting the employer’s liability to his liability under the workmen’s compensation laws and returning these compensation payments to him via subrogation when a third party’s negligence, and not his own, causes injury to his employee. Section 303(b) of the Act provides:

(b) In the event injury or death to an employe is caused by a third party, then such employe, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to receive damages by reason thereof, may bring their action at law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action.

Act of June 2, 1915, P.L. 736, art. III, § 303, as amended by Act of December 5, 1974, P.L. 782, No. 263, § 6, 77 P.S. § 481(b) (Supp. 1981-82).

In Arnold v. Borbonus, 251 Pa.Super. 110, 390 A.2d 271 (1978), this court decided the issue of whether section 303(b) of the Act bars the joinder of a plaintiff’s employer as an additional defendant for the purpose of determining the employer’s right to subrogation and the third party’s right to credit for the amounts paid to the employee as workmen’s compensation. In Arnold, plaintiff, Robert Arnold, was injured while performing excavation work within the scope and course of his employment. He and his wife brought an action in trespass against third parties, including Texas Eastern Transmission Corporation (hereinafter Texas), which, in turn, joined the plaintiff’s employer, Ramaley Brothers, as an additional defendant. Texas asserted in its complaint against Ramaley Brothers that the employer was negligent in conducting the excavation work and that, if and to the extent Texas may be adjudged liable to the plaintiffs, the court should give Texas credit in the amount of workmen’s compensation benefits paid by Ramaley Brothers. Ramaley Brothers filed preliminary objections in the nature of a demurrer in which it stated that section 303(b) of the Act barred Texas’ third party complaint. The lower court sustained the employer’s preliminary objections and dismissed Ramaley Brothers from the action.

On appeal to this court, Texas argued that section 303(b) does not bar the joinder of the employer for determining the employer’s entitlement to subrogation to the rights of the employee against a third party. We held that the December 5,1974 amendment to the Act “manifests a broad legislative intent to bar the joinder of an employer as an additional defendant”, Id., 257 Pa.Super. at 114, 390 A.2d at 273 (footnote omitted), and, therefore, we concluded that the lower court properly sustained the employer’s preliminary objections. We relied on an earlier decision by this court in which we had held that the 1974 amendment grants the employer immunity from suit and bars its joinder as an additional defendant in an employee’s action against a third party.

In Hefferin v. Stempkowski, 247 Pa.Super. 366, 372 A.2d 869 (1977), our Court considered and rejected the identical contention. After reviewing the legislative history of the 1974 amendment to § 303(b), we concluded that ‘the intention of the [1974] amendments to Section 303 was to grant the employer total immunity from third-party action .... By this amendment the Legislature made the Pennsylvania Workmen’s Compensation Act a complete substitute for, not a supplement to, common law tort actions.’ Supra, 247 Pa.Super. at 368, 372 A.2d at 871.

Id., 257 Pa.Super. at 113-114, 390 A.2d at 272 (footnote omitted).

In Arnold, we also reaffirmed our statement in Hefferin that section 303(b) does not alter the employer’s right to subrogation in an appropriate case and forum. Id., 257 Pa.Super. at 114 n.7, 390 A.2d at 273 n.7.

For the reasons stated in Arnold v. Borbonus, supra, we hold that the lower court in the instant case properly denied Harris’ petition to join Leonard’s employer, T. J. Henry, as an additional defendant. In Bell v. Koppers Co., Inc., 481 Pa. 454, 392 A.2d 1380 (1978), the supreme court held that section 303(b) of the Act, as amended in 1974, does not apply to injuries which occurred prior to February 5, 1975, the effective date of the 1974 amendment. In so holding, the court made the following statements in dicta which supports our decision today:

Section 303(b) of the Workmen’s Compensation Act more than alters, it obliterates, a cause of action. Prior to this amendment, the third party defendant was able to join the employer and present evidence to a jury concerning the employer’s negligence. This evidence might exonerate the third party from all liability by proving the employer’s negligence alone had caused the injury or it might result in a determination that the employer and third party were jointly liable. However, the enactment of Section 303(b) has foreclosed the adjudication of the liability of the employer. Hefferin v. Stempkowski, 247 Pa.Super. 366, 372 A.2d 869 (1977).

Id., 481 Pa. at 458, 392 A.2d at 1382. See also Tsarnas v. Jones & Laughlin Steel Corp., 488 Pa. 513, 412 A.2d 1094 (1980); Gallagher v. Transport Pool Co., 281 Pa.Super. 188, 421 A.2d 1212 (1980).

Harris next argues on appeal that the lower court erred in sustaining Lumbermen’s preliminary objections and dismissing Harris’ complaint. In its complaint, Harris alleged that Lumbermen gratuitously and negligently conducted safety inspections of T. J. Henry’s plant and machinery, and that these inspections were not required under Lumbermen’s insurance policy with T. J. Henry. Harris contends that Lumbermen should not enjoy any immunity under the Act for these gratuitous and negligent inspections, but should be made a party to this suit liable for contribution or indemnity pursuant to traditional common law principles.

We hold that Lumbermen was properly dismissed from this suit pursuant to section 303(b) of the Act which specifically states that “the employer, his insurance carrier .. . shall not be liable to a third party for damages, contribution or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract . .. . ” (Emphasis added). No contract providing for such liability existed in this case.

Harris contends that Lumbermen should be held liable for contribution or indemnity pursuant to the Pennsylvania Supreme Court decision in Tropiano v. Travelers Insurance Company, 455 Pa. 360, 319 A.2d 426 (1974). In Tropiano, the issue was whether an insurance carrier is liable in trespass to an employee for injuries allegedly caused by the insurer’s negligence in supplying medical services in the treatment and care of an injury previously sustained by the employee in the course of his employment. The court held that the insurance carrier is not immune from common law liability for such injuries under the Act, because these injuries did not arise during the course of the employee’s employment. On the contrary, the injuries arose from the insurer’s negligence in providing medical treatment subsequent to and independent of the original injury sustained at work.

We are of the opinion that acts of negligence arising out of medical treatment directed and controlled by the insurance carrier should not be classified as occurring during the course of employment. The medical treatment of injuries is a separate and distinct function of the insurance carrier which does not concern the employer and is not part of the employer’s business operations. The alleged acts of negligence in this case were committed by the insurance carrier subsequent to and independent of the original injury and with no involvement of the employer whatsoever.

Id., 455 Pa. at 363, 319 A.2d at 427.

Harris argues that the injuries in the instant case, like the employee’s injuries in Tropiano, should not be classified as occurring during the course of Leonard’s employment and Lumbermen should, consequently, be held subject to common law liability. We disagree.

Leonard alleged in his complaint that he sustained his injuries while working on August 17, 1976. There was no allegation that he sustained any additional injuries. Furthermore, according to Harris’ complaint against Lumbermen, the safety inspections in question were conducted by Lumbermen before August 17, 1976, so that the alleged acts of negligence in this case were committed prior to and allegedly resulted in Leonard’s injuries at work. We also find that an insurance carrier’s safety inspections of an employer’s premises are intimately concerned with the employer’s business operations. See Jadosh v. Goeringer, 442 Pa. 451, 275 A.2d 58 (1971); see generally DeJesus v. Liberty Mutual Insurance Company, 439 Pa. 180, 268 A.2d 924 (1970); see also Brown v. Travelers Insurance Company, 434 Pa. 507, 254 A.2d 27 (1969). For the above reasons, we conclude that Leonard’s injuries did occur during the course of employment so that Lumbermen is barred from common law liability by the Act.

In Jadosh v. Goeringer, supra, the Pennsylvania Supreme Court held that where the insurance carrier makes periodic safety inspections of the employer’s premises pursuant to the terms of the insurance policies, the insurance carrier is acting as an insurer and is, therefore, entitled to all of the employer’s immunity under the Act. We believe that this decision, rather than the court’s decision in Tropiano, provides guidance in the instant case. The employee in Jadosh argued that the insurance carrier should be subject to tort liability because the carrier was an independent contractor hired to inspect the safety aspects of the employer’s machinery. The supreme court dispensed with this argument by stating:

PMA [insurance carrier] did not just ‘happen to be’ acting as safety adviser to Bertels [employer]. It was advising on safety solely because of its role as the employer’s insurer. The appellant’s brief admits that PMA assumed the duty of making investigations of Bertels’ premises pursuant to the terms of the insurance policies between it and Bertels.

Id., 442 Pa. at 456, 275 A.2d at 61.

We find that the court’s reasoning in Jadosh is applicable here and that Lumbermen, although not required to do so by the insurance policy, “was advising on safety solely because of its role as the employer’s insurer.” Id.

We note that there are strong policy considerations for concluding that the legislature intended that Lumbermen be barred from common law liability in the instant case. These considerations have been fully articulated by our supreme court in Brown v. Travelers Insurance Company, supra:

[W]e do not think that the legislature intended to place insurance carriers in such a position that they would be forced to abandon these safety programs. Today many insurance carriers undertake such safety programs in the factories and business places of employers whom they insure. Admittedly, these programs are not motivated by an altruistic feeling toward workers, since it is to the financial advantage of the insurance carrier to reduce accidents and safety programs reduce accidents. Nevertheless, although the insurance carriers are attempting to save money, the safety programs they institute directly benefit the workers. Under the appellant’s position, if an insurance carrier is negligent in instituting a safety program, it is liable to an employee who is injured as a result. Since the insurance carrier is not required by law to carry on these safety programs, the end result of the appellant’s argument seems assured—insurance carriers will specifically absolve themselves from undertaking such safety programs. Again, we cannot conclude that the legislature intended this result.

Id. 434 Pa. at 515, 254 A.2d at 30.

Harris’ final argument is that we should remand the case to the lower court to permit Harris to amend its complaint against Lumbermen in order to make clear that Harris does not seek any money damages from the carrier. In its amended complaint, Harris would seek a determination of Lumbermen’s responsibility for Leonard’s injury so that the total liability of all parties for Leonard’s injury could properly be apportioned. “The right to amend should not be withheld where there is some reasonable possibility that amendment can be accomplished successfully.” Otto v. American Mut. Ins. Co., 482 Pa. 202, 205, 393 A.2d 450, 451 (1978) (per curiam) (citations omitted). We conclude that, even if the amendment requested by appellant were permitted, appellant’s suit against Lumbermen would still be barred by the Act. We rely upon the reasons stated above in reaching our holding that Leonard’s employer cannot be joined as an additional defendant under the Act.

Order affirmed.

McEWEN, J., files a dissenting opinion.

McEWEN, Judge,

dissenting:

I dissent from the holding that the 1974 Amendment to § 303(b) of the Pennsylvania Workmen’s Compensation Act, precludes the joinder of T. J. Henry, the employer of the plaintiff. I otherwise join in the majority opinion.

Section 303(b), as amended in 1974, provides:

“In the event injury or death to an employee is caused by a third party, then such employee . . . may bring [an] action at law against such third party, but the employer ... shall not be liable to a third party for damages, contribution or indemnity in any action at law. ...”

The 1974 Amendment does not state that an employer may not be joined as an additional defendant. Whatever the legislative history may indicate the legislature intended to provide, the language of the enactment itself is clear. While it may be true that the function of this Court is to determine the intent of the legislature when its enactments are challenged, I believe the performance of that function should be restricted to enactments that are unclear as well as challenged.

The inequities effected by precluding the joinder of the employer are several and considerable. Some propose that the employer assume the position of a party plaintiff to present its subrogation claim so that the recovery of the employer as a plaintiff is reduced in proportion to the assessment of the responsibility of the employer for the occurrence. However, sure the rationale for this proposal and however well it may address a clearly inequitable situation, the fundamental issue in a trial of the claim of an injured plaintiff is the question of which parties are responsible and this question has considerably greater clarity when the employer is an additional defendant, whatever may be the restrictions placed upon recovery from that employer.

If a pause in the concern for principle permits consideration of the pragmatic, it is clear that the settlement of litigation is not enhanced by precluding joinder of the employer. Whatever compulsion an injured plaintiff and the parties defendant may feel for settlement, the subrogation carrier for the employer feels no such exertion, whatever the skills of the settlement judge.

I share what is, I acknowledge, the minority view and do so for all of the reasons already persuasively expressed by Judge Gwilym A. Price, Jr. in his dissent in Hefferin v. Stempkowski, 247 Pa.Super. 366, 372 A.2d 869 (1977), alloca-tur refused; by Judge Edmund B. Spaeth, Jr. in his concurring and dissenting opinion in Arnold v. Borbonus, 257 Pa.Super. 110, 390 A.2d 271 (1978); and by Lebanon County Common Pleas Court President Judge G. Thomas Gates in Yeagley v. Metropolitan Edison Co., 16 D. & C.3d 681, (C.P.Leb.Co., 1980).

      . Canterbury Press was not included as an additional defendant in Harris’ complaint.

      . The third motion was made by the additional defendants, Bernard Rothman and Canterbury-Perfect Press, Inc., in the form of preliminary objections. These objections raised a jurisdictional question and were dismissed by the lower court.

      . Appellant cites Lipari v. Niagara Mach. & Tool Works, 87 F.R.D. 730 (W.D.Pa.1980), aff'd per curiam, 661 F.2d 914 (3rd Cir. 1981), where joinder of an employer as an involuntary plaintiff was allowed under F.R.C.P. 17 for the purpose of determining the employer’s right to subrogation. In view of this court’s holding in Arnold v. Borbonus, 257 Pa.Super. 110, 390 A.2d 271 (1978), which is not discussed in the opinion in Lipari, we do not find Lipari controlling here. Appellant also cites two cases in which courts permitted the joinder of an employer as a party in a case for the purpose of determining the percentage of pro rata causal negligence among the parties pursuant to the Pennsylvania Comparative Negligence Act, 42 Pa. C.S. § 7102. Sheldon v. West Bend Equipment Corp., 502 F.Supp. 256 (W.D.Pa.1980); Yeagley v. Metropolitan Edison Co., 16 D. & C.3d 681 (1980). As appellant admits in its appellate brief, comparative negligence is not applicable in this case because the accident occurred in 1976 prior to the passage of that act in 1978. We conclude, therefore, that the rationale in those decisions is not applicable to the instant case. We also note that there is a line of cases which have found that the joinder of an employer to determine his percentage of negligence is barred by section 303(b) of The Pennsylvania Workmen’s Compensation Act, Act of June 2, 1915, P.L. 736, art. III, § 303, as amended by Act of December 5, 1974, P.L. 782, No. 263, § 6, 77 P.S. § 481(b) (Supp. 1981-82). E. g., Dech v. Rouselle Corp., 512 F.Supp. 1024 (E.D.Pa.1981); Hamme v. Dreis & Krump Mfg. Co., 512 F.Supp. 944 (M.D.Pa.1981); Schultz v. Bell & Howell Co., 512 F.Supp. 558 (W.D.Pa.1981).

      . In Jadosh v. Goeringer, 442 Pa. 451, 275 A.2d 58 (1971), the supreme court based its decision on section 305 of the Act, as amended by Act of January 25, 1966, P.L. (1965) 1552, § 1, providing:
      “ ‘Such insurer shall assume the employer’s liability hereunder and shall be entitled to all of the employer’s immunities and protection hereunder * * *.’ ” Id., 442 Pa. at 456, 275 A.2d at 61. Section 305 has subsequently been amended but the language quoted above remains the same. 77 P.S. § 501 (Supp. 1981-82).

      . It appears that appellant has waived its right to amend the complaint. Appellant made no effort to amend the complaint “as of course within ten (10) days after service of a copy of preliminary objections,” Pa.R.C.P. No. 1028(c), nor did appellant ask the lower court for leave to amend, Pa.R.C.P. No. 1033. Eastgate Ent., Inc. v. Bank & Trust Co. of Old York Rd., 236 Pa.Super. 503, 510, 345 A.2d 279, 282 (1975). Finally, appellant does not raise the lack of opportunity to amend on this appeal, Robinson v. Tool-o-matic, Inc., 216 Pa.Super. 258, 260-262, 263 A.2d 914, 916 (1970). We, however, considered whether its complaint was curable by amendment in view of the Pennsylvania Supreme Court’s decision in Otto v. American Mut. Ins. Co., 482 Pa. 202, 393 A.2d 450 (1978) (per curiam), reversing, 241 Pa.Super. 423, 361 A.2d 815 (1976). In Otto, the supreme court permitted amendment of a complaint where it was argued that there was no opportunity to cure defects in the complaint, because the lower court dismissed the complaint outright when it sustained the preliminary objections. See also Behrend v. Yellow Cab Company, 441 Pa. 105, 110, 271 A.2d 241, 243 (1970).

      . Act of June 2, 1915, P.L. 736, art. III, § 303 as amended. Act of December 5, 1974, P.L. 782, No. 263, § 6, 77 P.S. § 481(b) (Supp. 1981-82).

      . The Pennsylvania Workmen’s Compensation Act, supra; 77 P.S. § 481(b).


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    434 A.2d 805
    In re The ESTATE OF Anna M. WATSON, Deceased. Appeal of Florence WALLACE.
    Superior Court of Pennsylvania.
    Argued April 21, 1981.
    Filed Sept. 11, 1981.

      Thomas J. Reilly, Upper Darby, for appellant.
    Roy Davis, Drexel Hill, for appellee.
    Before WICKERSHAM, MONTEMURO and WATKINS, JJ.
   MONTEMURO, Judge:

The instant case concerns the disposition of a savings account of the type commonly known as a “Totten Trust.” The account was funded by decedent, Anna M. Watson; and the signature card indicated that the passbook represented a survivorship account, in favor of decedent’s sister Florence Wallace, appellant in this action.

Decedent had appointed a niece, Mary Anne Widmaier, to be her executrix, and in that capacity the niece sued for return of the funds to the estate. The court below found for the executrix/appellee, but upon review this court has found that appellee failed to meet her burden of proof and the very strong presumption favoring the co-tenant of the trust must prevail. Therefore, we reverse.

The law relevant to this type of account is well-known and in fact is correctly stated by both parties and the court below. The statute, in pertinent part, states at 20 P.S. 6304:

Right of survivorship
(a) Joint Account.—Any sum remaining on deposit at the death of a party to a joint account belongs to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intent at the time the account is created.

The official advisory committee comment on this section adds the following explanation:

Official Advisory Committee Comment. The effect of (a) of this section, when read with the definition of “joint account” in Section 6301(4), is to make an account, payable to one or more of two or more parties, a survivorship arrangement unless “clear and convincing evidence of a different contention” is offered.
The underlying assumption is that most persons who use joint accounts want the survivor or survivors to have all balances remaining at death. But use of a form negating survivorship would make (c) of this section applicable. Thus, a safe nonsurvivorship account form is provided. Consequently, the presumption stated by this section should become increasingly defensible. (Emphasis supplied.)

The law as stated above distinctly favors the surviving joint tenant over the decedent’s estate, especially when the account actually indicates on its face that a survivorship tenancy is contemplated. Use of a “form negating survivor-ship” would activate (c), which states in its entirety:

(c) Other cases.—In other cases, the death of any party to a multiple-party account has no effect on beneficial ownership of the account other than that the rights of the decedent become part of his estate.

No such form was used in the instant matter.

The presumption long-inherent in the “Totten trust” was considered destined to become “increasingly defensible” as of 1976 when the advisory committee composed its comments. It follows, therefore, that the proof of decedent’s intent to create something other than a survivorship trust must become correspondingly clearer.

Case law holds that an executed signature card establishes a prima facie intervivos gift from the party funding the account to the other joint tenant. Scott’s Estate, 455 Pa. 429, 316 A.2d 883 (1974); Dzierski Estate, 449 Pa. 285, 296 A.2d 716 (1972). The decedent in the case at bar certainly executed a card indicating a joint tenancy with right of survivorship in this account which she held with her sister, appellee. This is strong prima facie evidence of intent to make the account a gift to her sister in the event that her sister survived her. There have been no allegations of fraud or undue influence, and there is no reason to infer that decedent’s act in creating the account was other than the free and voluntary act of an informed adult. The proof of contrary intent must be clear and convincing indeed to overcome the presumption in such an instance.

This record simply does not have evidence sufficient to rebut the presumption of gift.

The decedent appointed her niece as executrix of her Will, and also left her real property and furniture. The Will was holographic, and although the record in not absolutely clear, it appears that a number of blank spaces were left where individual sums to heirs were never filled in.

Appellee’s counsel argued that the expenses of the estate should be paid from this account, and that the residue of the estate would go to the very persons now battling over the trust account in any case. This is not an accurate view of the matter. Appellant as sole heir of the trust account is in a far different position from the one she occupies if she inherits after expenses of the estate are paid and as one of a group of intestate heirs. Appellee/executrix also has a distinct personal interest in the outcome of this action. As inheritor of the bulk of her aunt’s estate she may have to settle some expenses of the estate from her own inheritance if the trust fund is a direct gift to the appellee.

Decedent at one time had another passbook account in three names: that of her niece/executrix, the niece’s mother and decedent herself. The sister who was mother of the niece died, and thereafter the decedent removed the money and opened a new trust account naming appellant as co-tenant. Appellant had physical possession of the passbook. The niece testified that the new account was “supposed” to have her name on it, but certainly decedent had it in her power to have arranged for three signatures on the account as before, had she so desired.

Prior to decedent’s death, appellant refused to let appellee see the passbook, apparently because she considered that the account was the property of her sister and neither she nor the hiece had a right to it during her sister’s life. After decedent’s death, appellant told appellee that she would not have the right to remove the funds, and she stated that decedent had left her the money or, on another occasion, that the money was for her to split among the surviving sisters. She did, however, hand over six hundred twenty-five dollars ($625.00) in cash, which had also been entrusted to her by decedent, for funeral expenses.

Appellant also gave the passbook to niece/executrix upon an assurance that it would be returned to her. When it was not returned, she removed the money from the account with an affidavit. Appellant’s behaviour does not reflect uncertainty about her right to the account funds.

The record simply does not present the kind of clear, precise and convincing evidence necessary to persuade this court that decedent intended to make this account part of her estate. No one can say positively what decedent intended, but the account on its face stated that it was a joint account with right of survivorship and the legal presumption that decedent did intend to make a gift of the funds in the account to her sister is exceedingly strong. Appellee/execu-trix did not meet the burden of proof necessary to overcome the presumption of gift.

The order of the lower court is reversed and the trust account funds of Account Number 151394 are to be the property of Appellant, Florence Wallace.

      . Although this attitude may seem inconsistent with an “intervivos” gift, the Totten trust typically is regarded as belonging to the funding party prior to his or her death.


author: POPOVICH, Judge:

text:
    434 A.2d 808
    COMMONWEALTH of Pennsylvania v. Antoinette HARRISON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed Sept. 11, 1981.

      Raymond P. Kashimba, Public Defender, Stroudsburg, for appellant.
    Linda W. Miller, Assistant District Attorney, Stroudsburg, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

After a trial by jury, the appellant, Antoinette Harrison, was found guilty of Forgery (18 Pa.C.S.A. § 4101) and Receiving Stolen Property (18 Pa.C.S.A. § 3925). Post-trial motions were timely filed, denied and the appellant was sentenced to serve a period of imprisonment of no less than three (3) months nor more than six (6) months, as well as being ordered to make restitution and to pay the cost of prosecution.

On appeal, appellant asserts (1) the evidence was insufficient as a matter of law to support the forgery conviction, (2) the forgery and receiving stolen property convictions were contrary to the evidence, or, alternatively, to the weight of the evidence, and (3) the lower court erred in refusing to admit various pieces of evidence at trial. Because the evidence amply supports the verdict, and the assignment of error is without merit, the judgment of sentence is affirmed.

In assessing the appellant’s first contention, which requests that judgment be arrested, “the sufficiency of the evidence must be evaluated upon the entire trial record. All of the evidence must be read in light most favorable to the Commonwealth, and it is entitled to all reasonable inferences arising therefrom. The effect of such a motion [to arrest judgment] is to admit all the facts which the Commonwealth’s evidence tends to prove.” (Emphasis in original) Commonwealth v. Meadows, 471 Pa. 201, 205-206, 369 A.2d 1266, 1268 (1977); accord Commonwealth v. Slout, 288 Pa. Super. 471, 432 A.2d 609 (1981); Commonwealth v. Nappi, 288 Pa.Super. 240, 431 A.2d 1027 (1981). When the evidence is viewed in this manner, it becomes clear that appellant’s sufficiency argument must fail.

On November 17, 1978, a young woman carrying a small child entered Metzgar’s Market in Tannerville, Monroe County, Pennsylvania. The woman presented Louise Metz-gar, an owner of the store, a check for $150.00 for cashing. The check was drawn by Columbia Accident and Health Insurance Company to the order of David S. Marsh, and was dated July 15, 1978. The woman represented that the signature already on the check was that of her husband. However, when she was unable to produce any identification, Mrs. Metzgar requested that she sign the check as a condition precedent to payment. The woman complied and signed her name as that of Susan Marsh. With the added signature, Mrs. Metzgar did not hesitate to honor the check.

On or about July 15, 1978, David S. Marsh did not receive his regular disability check from Columbia. Upon inquiry, he learned that it was mailed and that Columbia had received the cancelled check, which indicated that it had been cashed at Metzgar’s Market and endorsed by “David S. Marsh” and “Susan Marsh.” At trial, both David Marsh and his wife, known since childhood as “Sue” even though her given name was Veronica, denied endorsing the check.

When appellant took the stand, she testified that she and her two year old daughter spent all of November of 1978 with her father in Youngstown, Ohio. (N.T. 88) Although the appellant denied ever being in Metzgar’s Market, or even knowing where it was located, she did admit knowing “Sue” Marsh for “quite a while.” (N.T. 100)

Before an individual can be convicted of forgery, the Commonwealth is required to prove beyond a reasonable doubt that he committed one of the following:

“§ 4101. Forgery.
(a) Offense defined.—A person is guilty of forgery if, with intent to defraud or injure anyone, or with knowledge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor:
(1) alters any writing of another without his authority;
(2) makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act, or to have been executed at a time or place or in a numbered sequence other than was in fact the case, or to be a copy of an original when no such original existed; or
(3) utters any writing which he knows to be forged in a manner specified in paragraph (1) or (2) of this subsection.” 18 Pa.C.S.A. § 4101.

Here, the appellant was charged with violating subsection (a)(1) of Section 4101. To prove its case, the Commonwealth presented numerous witnesses, e. g., the payee of the check (David S. Marsh), a party whose signature was “altered” on the check (Susan Marsh), an eyewitness to the offense (Mrs. Metzgar) and a handwriting expert (Trooper Walls).

As for the sufficiency of the evidence attendant to the question of “identification,” our reading of the recorded impresses us that Mrs. Metzgar’s testimony was clear, convincing and unhesitant. This is consonant with our Supreme Court’s holding that:

“Where the opportunity for positive identification is good and the witness is positive in his identification and his identification is not weakened by prior failure to identify, but remains, even after cross-examination, positive and unqualified, the testimony as to identification need not be received with caution—indeed the cases say that ‘ “his [positive] testimony as to identity may be treated as the statement of a fact” ’. For example, a positive, unqualified identification of defendant by one witness is sufficient for conviction even though half a dozen witnesses testify to an alibi.” (Citation omitted) Commonwealth v. Kloiber, 378 Pa. 412, 422, 106 A.2d 820, 826 (1954), cert. denied, 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954).

Instantly, Mrs. Metzgar testified to: 1) conversing with the appellant; 2) selling appellant an item from the counter; 3) observing the appellant carrying a child—maybe two or three years old; and 4) witnessing the appellant “sign[ ] the name Susan Marsh” to the back of the check. (N.T. 32-35, 40-41) Moreover, on cross-examination the witness reaffirmed her belief that she was “positive that the person that [she] saw and the person sitting next to [counsel was] one and the same.” (Emphasis added) (N.T. 42) In line with the remarks in Commonwealth v. Kloiber, supra, we find that Mrs. Metzgar had an unobstructed view of the appellant during the commission of the crime; her identification testimony was neither speculative, see e. g., Commonwealth v. Wiley, 288 Pa.Super. 397, 432 A.2d 220 (1981); Commonwealth v. Pereria, 219 Pa.Super. 104, 280 A.2d 623 (1971); Commonwealth v. Paschall, 214 Pa.Super. 474, 257 A.2d 687 (1969), nor weakened on cross-examination, but remained positive. See e. g., Commonwealth v. Nelson, 245 Pa.Super. 33, 369 A.2d 279 (1976); Commonwealth v. Stover, 264 Pa.Super. 522, 400 A.2d 208 (1979); Commonwealth v. Wiggins, 239 Pa.Super. 256, 361 A.2d 750 (1976). As such, the witness’ “positive, unqualified identification . .. [was] sufficient for conviction even though [the appellant] testified] to an alibi.” Commonwealth v. Kloiber, supra.

Further, appellant was linked to the forgery by the Commonwealth’s handwriting expert. Samples were obtained from David S. Marsh, Veronica (“Susan”) Marsh and the appellant. From these exemplars, the expert was able to ascertain that the second endorsement on the check—“Susan Marsh”—was executed by the writer of the signature “Antoinette Harrison.” (N.T. 63) Despite the inability of the expert to identify conclusively the appellant as the one who executed the first signature, he, “without any doubt whatsoever[,] . .. did find that she was the author of the second endorsement, Susan Marsh.” (N.T. 64) Since the weight to be attributed to such testimony was for the trier of fact, 42 Pa.C.S.A. § 6111(c) (Pamphlet, 1981), we will not engage on appeal in a weighing of the evidence in an attempt to second-guess the jury, for such is not our function. See Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1956); Commonwealth v. Nappi, supra.

It is appellant’s position that because the check would not have been cashed without the signature of “David S. Marsh,” the “focus” of our attention should be on whether the Commonwealth established beyond a reasonable doubt that she “altered” the name of “David S. Marsh” on the check. (Appellant’s Brief at 7) With such averment we cannot agree.

The only questions we deem in issue are whether appellant signed Susan Marsh’s name, and, if so, was it done “with the intent to defraud or injure anyone.” 18 Pa.C.S.A. § 4101(a)(1). Appellant would have us discount the effect of such signature on the basis that it was legally of no consequence since it was written solely for “identification” purposes, and thus did not convert the check into a negotiable instrument. Nonetheless, Mrs. Metzgar would not have cashed the check but for the added signature; thus, it induced her to part with money she would not have otherwise relinquished. As a result, based on the facts presented and the reasonable inferences to be derived therefrom, see Commonwealth v. Harrison, 289 Pa.Super. 126, 432 A.2d 1083 (1981), the trier of fact was justified in concluding that an exchange had occurred in which the appellant had perpetrated a fraud by “altering” the signature of a co-signer on a negotiable instrument with the intent to defraud and to prejudice another’s rights. See Shay v. Merchants Banking Trust Co., 335 Pa. 101, 104, 6 A.2d 536, 538 (1939); Commonwealth v. Bollinger, 274 Pa.Super. 112, 117, 418 A.2d 320, 323 (1979); Commonwealth v. Green, 205 Pa.Super. 539, 211 A.2d 5 (1965); Commonwealth v. Wheeler, 200 Pa.Super. 284, 189 A.2d 291 (1963) (Intent to injure or defraud may be inferred from the doing of wrongful, fraudulent, or illegal acts which in their necessary results naturally produce loss or injury). Therefore, we conclude that the evidence of “altering” that is required under 18 Pa.C.S.A. § 4101(a)(1), i. e., signing another’s name, is cogently present. See Commonwealth v. Hayes, 245 Pa.Super. 521, 369 A.2d 750 (1976); Black’s Law Dictionary, at 71 (5th Ed. 1979).

Appellant contends additionally that the verdict is contrary to the weight of the evidence. In support of this contention she points to the Commonwealth’s failure to prove that she endorsed the name “David S. Marsh” on the check. We have discussed this matter supra and need not repeat our reasons for finding it wanting in merit. Also, appellant urges that the charge of receiving stolen property was not supported by the evidence since Mrs. Metzgar’s identification testimony “was fraught with doubt.” We find to the contrary (see discussion supra) and thus determine that the jury was warranted in concluding that the accused “intentionally receive[d], retain[ed], or dispose[d] of movable property of another knowing that it ha[d] probably been stolen.... ” 18 Pa.C.S.A. § 3925. Only where the “evidence offered to support a verdict of guilt is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture,” may we overturn the verdict on the basis that it is against the weight of the evidence. Commonwealth v. Farquharson, supra; see also Commonwealth v. Wiley, supra; Commonwealth v. Bennett, 224 Pa.Super. 238, 303 A.2d 220 (1973). This is clearly not such a case. There is nothing in the record to suggest that the Commonwealth’s evidence is either too unreliable or contradictory to support the verdict.

Lastly, appellant avers that reversible error occurred when the trial court excluded two anonymous letters from the proceedings, which she contends, if admitted into evidence, would have cast doubt upon her guilt. The text of the two letters reads:

“ ‘Tony—If you know what’s good for you, you better not try to sue me. I know you didn’t take Dave’s check, but I just wanted to get you in trouble. You better not try nothing (sic) stupid because I have somebody watching you—from Guess Who?’ (postmarked March 24, 1979, and addressed to [appellant]).
Toni—Did you get my message[?] I hope so[.] I know where you live so don’t worry about it[.] Somebody will be watching you—Guess Who[?]’ (postmarked March 28, 1979, and addressed to [appellant]).’ ” (Lower Court Opinion at 4)

The Commonwealth objected to such evidence on the grounds of relevancy and lack of authenticity. (N.T. 93) Appellant’s counsel asserted, at side bar, that the purpose of seeking to have the letters introduced was to negate any evidence that appellant took the check, which in turn would have supported the desired inference that she did not have a check in her possession to alter; and to enhance the probability in the minds of the jury that she was not the person who disposed of the check in Metzgar’s Market. (N.T. 93-95) The lower court was not persuaded, and, thus, sustained the Commonwealth’s objection.

We note at the outset that all evidence, whether direct or circumstantial, tending to prove identity of a thing or person whose identity is in issue, is relevant. 1 Henry, Pennsylvania Evidence, § 21 (1953); see generally Commonwealth v. Rini, 285 Pa.Super. 475, 427 A.2d 1385 (1981). On this issue, one commentator has stated:

“It is clear that the relevancy of a writing to a particular issue raised in litigation will frequently be logically dependent upon the existence of some connection between that writing and a particular individual.... The real question, however, is not whether such a connection is logically necessary for relevancy, but rather what standards are to be applied in determining whether the connection has been, made to appear.” McCormick, Law of Evidence, § 218, at 543 (2d Ed. 1972).

Ordinarily, a letter does not prove itself, in which case it is not admissible in the absence of proof of its authenticity and genuineness. See Commonwealth v. Dessus, 262 Pa.Super. 443, 451, 396 A.2d 1254, 1258 (1978); Commonwealth v. Gold, 123 Pa.Super. 128, 186 A. 208 (1936); 3 Wharton’s Criminal Evidence § 525 (13th Ed. 1973). The salutary feature of such rule “is that it constitutes a necessary check on the perpetration of fraud.” McCormick, Law of Evidence, § 218, at 544; see generally Commonwealth v. Bufalini, 223 Pa.Super. 489, 302 A.2d 352 (1973).

Inasmuch as the admission of evidence rests in each case on its own facts, Commonwealth v. Fusci, 153 Pa.Super. 617, 35 A.2d 93 (1943), we see in the case at bar that appellant’s offer of proof failed to indicate that she intended to establish the authorship or identity of the letters as a prerequisite to their submission into evidence. See Commonwealth v. Dessus, supra; Anno., 5 A.L.R.3d 1018. We determine, therefore, that the trial judge did not abuse his discretion in excluding such evidence from trial. See Commonwealth v. Kramer, 247 Pa.Super. 1, 371 A.2d 1008 (1977); Commonwealth v. Dessus, supra. In fact, as noted quite aptly by the trial judge:

“The documents were at best ambiguous in meaning, especially the second of the two offered, and shed no light on [appellant’s] guilt or innocence on the offenses charged. Furthermore, the letters’ reliability were open to the gravest question. Not a clue was given by [appellant] as to the authorship of same, when, and under what circumstances the letters were written, (other than the date of the alleged offenses), or any other factor[] which might have enhanced the probative value of the documents. On this basis, we think the admission of such documents would have been highly improper.” (Lower Court Opinion at 5)

We agree and, accordingly, affirm the judgment of sentence.

      . Although the Commonwealth did not do so here, given the expert’s testimony, it could have utilized Mrs. Metzgar to establish whether the particular writing was done by the appellant. See 42 Pa.C.S.A. § 6111(a)(1) (Pamphlet, 1981) (“The opinion of any person acquainted with the handwriting of the supposed writer[ ]” “shall be deemed to be relevant[ ]”). Even though the witness saw the actor write but once, she was still competent to testify on the subject. See 1 Henry, Pennsylvania Evidence, § 534 (1953); McCormick, Law of Evidence, § 221 (2d Ed. 1972); 3 Wharton’s Criminal Evidence § 527 (13th Ed. 1973).

      . Parenthetically, if the appellant had shown that the letters were received in due course of mail and they purported to have come in answer to a prior letter, and they showed a knowledge by the writing of the contents of such prior letter, in such case the circumstances would have been sufficient evidence of the genuineness of the replies to have warranted their submission to the jury without proof of the handwriting of the sender. See 1 Henry, Pennsylvania Evidence, § 325 (1953) (citing cases).


author: CAVANAUGH, Judge:

text:
    434 A.2d 813
    COMMONWEALTH of Pennsylvania, v. Frederic R. HILL, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 6, 1981.
    Filed Sept. 18, 1981.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and LIPEZ, JJ.
   CAVANAUGH, Judge:

On February 21, 1978 the appellant was tried by the lower court, sitting without a jury, and convicted of aggravated assault and possessing an instrument of crime. The sole issue before us is whether the lower court improperly granted the Commonwealth’s petition for extension pursuant to Pa.R.Crim.P. 1100(c).

Rule 1100(c) provides as follows:

(c) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. A copy of such application shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon. Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order granting such application shall specify the date or period within which trial shall be commenced.

The Commonwealth has the burden of proving by a preponderance of the evidence that it has met the requirements of Rule 1100(c). Commonwealth v. Ehredt, 485 Pa. 191, 194, 401 A.2d 358, 360 (1979). In reviewing a determination that the Commonwealth has met its burden, we consider only the evidence presented by the Commonwealth and so much evidence, as fairly read in the context of the record as a whole, remains uncontradicted. Id.

Here the complaint was filed on August 5, 1977, fixing the Rule 1100 run date as February 1,1978. The case was listed for trial on eight different dates. The docket reveals the following listings and reasons why trial did not commence:

August 10, 1977: Complaining witness failed to appear at preliminary hearing.

August 31, 1977: Preliminary hearing held.
September 14, 1977: Appellant arraigned.
October 4, 1977: Defense request for investigation.
October 28, 1977: Case marked “ready, not reached”.
December 1, 1977: Complaining witness failed to appear.
January 9, 1978: Complaining witness failed to appear.
January 26,1978: Complaining witness failed to appear.

A form extension petition was filed and a hearing on the petition was held February 16, 1978. The following is the complete transcript of the extension hearing:

The Court: Initiation date of August 5th; normal run date of February 1st.
The Commonwealth filed their petition on February 1st so it appears to be timely filed.
I note the two continuances of 10-4 to 10-28 public defender needs more time.
10-28 to 12-11, case not reached. The latter being judicial delay.
Based on that record I will make a finding of due diligence.
When is the matter listed for trial?
Mr. Gallagher: 2-21, 475.
The Court: I’ll extend to 2-23.
Ms. Fernandez: May I enlighten the Court?
On 12-1 to 1-9, complaining witness failed to appear.
1-9 again the complaining witness failed to appear.
1-26 the complaining witness failed to appear.
I would challenge here due diligence in trying this defendant.
The Court: I’ll make it a must be tried.

On the basis of the inadequacy of the Commonwealth’s evidence of due diligence at the extension hearing the lower court concluded that the extension was improperly granted and that the appellant should be discharged. We agree.

The Commonwealth argues that since an overcrowded court calendar and the defense requested continuance prevented an earlier trial of the appellant’s case, despite the exercise of due diligence, the appellant is not entitled to relief. While it is true that judicial delay may be a proper basis for extension, Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976), the record must contain a showing of the due diligence and certification that the trial is scheduled for the earliest date consistent with the court’s business. Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976). This requirement has been strictly applied; Commonwealth v. Levitt, 287 Pa.Super. 115, 429 A.2d 1126 (1981); Commonwealth v. Freeman, 280 Pa. Super. 462, 421 A.2d 814 (1980); Commonwealth v. Smith, 269 Pa.Super. 424, 410 A.2d 329 (1979); Commonwealth v. Weber, 256 Pa.Super. 483, 390 A.2d 206 (1978). A bare assertion that a case is ready but not reached is clearly insufficient in view of the holding in Mayfield.

Although defense continuances of less than thirty days are not excludable under Rule 1100(d)(2), it is true that “defense-requested continuances may realistically obstruct diligent efforts by the Commonwealth to try an accused and may, therefore, justify an extension under Rule 1100(c).” Commonwealth v. Mancuso, 247 Pa.Super. 245, 253-54, 372 A.2d 444, 448 (1977). Here, however, there is no evidence whatsoever that the defense continuance obstructed “diligent efforts” by the Commonwealth so as to justify an extension. Further, we note that the Commonwealth’s statement that the complaining witness is unavailable, without more, does not establish due diligence. Commonwealth v. Ehredt, supra, 485 Pa. at 195, 401 A.2d at 360-61; Commonwealth v. Brant, 272 Pa.Super. 135, 414 A.2d 707 (1980).

Judgment of sentence reversed and appellant discharged.

      . Appellant was tried and convicted in February, 1978. Posttrial motions were heard and denied. Appellant was sentenced in April, 1978. The lower court’s opinion was rendered on January 23, 1981. There is no explanation for the delay in the filing of the lower court’s opinion.


text:
    434 A.2d 815
    In re Joseph Lee BREISCH. Appeal of Debra K. BREISCH, Natural Mother of Joseph Lee Breisch.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1980.
    Filed Sept. 18, 1981.

      John B. Dunn, Allentown, for appellant.
    Malcolm J. Gross, Allentown, for participating parties.
    Before SPAETH, HESTER and CAVANAUGH, JJ.
   CAVANAUGH, Judge:

This is an appeal by Debra K., the natural mother of Joseph Lee. Joseph Lee was adjudicated dependent and his custody was transferred from the appellant to the Lehigh County Office of Children and Youth Services. The mother does not challenge the finding of dependency, but claims that the child was removed from her custody absent the requisite proof of clear necessity. We disagree and affirm the order of the lower court.

The child was born May 10, 1976. He was initially placed with Children and Youth Services (hereinafter C&YS) in June, 1977. On June 29,1978, he was returned to his mother with the proviso that his care remain under the supervision of C&YS for at least six months. The mother’s failure to care for her son adequately during this period prompted the commencement of the instant action. Diane Avila, the mother’s caseworker, filed a petition alleging dependency pursuant to 42 Pa. C.S.A. § 6334.

When the child was returned to his mother’s custody his speaking ability was average for a child of his age. However, once at home this ability deteriorated and a treatment plan was formulated. The child was to attend the Lehigh Valley Child Care Center where he would be given professional speech therapy. Because his home environment was deemed to be critical, a home visitor, Carol Barrett, was assigned to work with the mother and child in their home. Her objective was to teach the mother parenting skills to enable her to function as the child’s primary educator. According to testimony, this was an essential adjunct to the professional speech therapy because the child’s problem required constant work.

There is no dispute as to the seriousness of Joey’s speech problem. Without therapy the prognosis was bleak. Susan L. Moon, Director of the Speech, Language and Hearing Service of Lehigh County, testified to this as follows:

Q. How important in the overall scheme of this child’s development are the areas that you have noted here today?
A. Extremely important. If the child is not understanding language he’s going to have a very difficult time in school. If a child is not able to express himself he will not be able to attend, you know, a normal school program. Q. What will happen if this child does not receive the therapy and home stimulation that you have recommended? What will happen to him?
A. I think he’s just going to continue to remain on the level that he’s currently functioning on but as he increases in age there’s going to be more and more of a gap between where he should be performing and where he is performing and special provisions will have to be made in school.
Q. Will that affect his ability to progress in school if he doesn’t move forward in language?
A. Absolutely.
Q. Will it affect his ability to function as a human being? A. Certainly will.

The program, however, was a failure. The child attended 58 out of 160 day case sessions, between July, 1978 and April, 1979. Most of the days he attended were during the first few months of the program. Because of his poor attendance, the child could not receive speech therapy and funds were finally withdrawn. The Home Start Program which Carol Barrett ran also failed. The mother was only available for twenty-nine per cent of the weekly visits which had been arranged. The visits were arranged at the mother’s convenience for the same time and day each week. Often the mother would not notify the Home Visitor that she or the child would not be at home for the visit. On those few occasions when both mother and child were available, it was clear that the mother was not working with the child between visits. In fact, as Ms. Barrett testified, the child was regressing in his language abilities, his development was seriously impaired and he was in need of immediate therapy. It was Ms. Barrett’s opinion that the mother did not understand the importance of her cooperation with the child’s therapy.

Diane Avila, the child’s caseworker from C&YS, shared Ms. Barrett’s concern that the child was regressing and that the mother was not cooperating with his therapy. Despite Mrs. Avila’s attempts to improve the situation by reestablishing goals for the mother, the mother indicated that she would not cooperate. The mother further stated that if Mrs. Avila wanted to file a court action, she could go ahead and do so. In the caseworker’s professional opinion, the mother did not understand the importance of her cooperation to her son’s development. Also Mrs. Avila observed an absence of “anyone particularly caring for the child or providing direct supervision for the child as you would need to provide for a three year old child or a two year old child when he was first returned.

Speech pathologists from the Speech, Language and Hearing Service of the Lehigh Valley, conducted evaluations of the child’s language ability as of January, 1979 and June, 1979. The results of these evaluations were admitted into evidence. In January, 1979, the child was two years and seven months old. According to the evaluation his expressive language was rated at two years and five months. By June he had regressed to two years and zero months. On a scale which evaluates a child’s ability to be normal, mild, moderate or severe, his expressive language delay was severe. The child’s ability to understand language was also below his age level and showed no improvement between January and June which meant that he was further below his age level in June than he had been in January. Joey’s receptive vocabulary ability improved between January and June, but remained below his age level. Finally, Joey was found to have a severe articulation delay, which means that he .was not able to produce the basic sounds which are needed to speak the language.

The testimony of the caseworkers who visited the mother’s home regularly indicated that Joey was exposed to a chaotic and harmful home life. The mother is a lesbian who effects a masculine appearance, wears men’s clothing, and has a masculine oriented mental status. At the time of the hearing she lived with Nancy Maruschak and two of her children in a two bedroom apartment. Various other youths lived in the apartment from time to time. On one visit Mrs. Avila found an old man who was dirty and lice-ridden living in the apartment. The mother had invited him to live with her because she was lonely. The two women engaged in blatantly sexual conduct in front of the children. There was evidence that Joey slept on a couch in the living room, which was separated from his mother’s and Nancy’s bedroom only by an archway.

The mother disregarded Mrs. Avila’s instructions not to permit a woman to care for Joey who was an alcoholic and unfit to care for children. Evidence also revealed that the women kept marijuana in the home, provided it to children in the apartment and smoked it with them. Also one of Nancy Maruschak’s sons testified that he and Joey’s mother had stolen furniture from people’s porches.

The child’s home life is of great importance to his speech development. The speech pathologists testified that the child lacks the stimulation which is normally provided by the family. The mother’s own unwillingness to cooperate and her apparent inability to understand Joey’s problem combined with the unstable home life she provided made the close relationship between parent and child, so necessary to Joey’s development, an impossibility. Accordingly, the child was adjudicated dependent on July 2, 1979.

The Juvenile Act defines a dependent child, in relevant part, as a child who “is without parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals.” 42 Pa. C.S.A. § 6302. In the Interest of Pernishek, 268 Pa.Super. 447, 458, 408 A.2d 872, 877 (1979). A finding of dependency must be from clear and convincing evidence. 42 Pa. C.S.A. § 6341(c); In the Interest of Black, 273 Pa.Super. 536, 417 A.2d 1178 (1980). Once a child is found to be dependent, a dispositional hearing must be held to determine the proper placement of the child. 42 Pa. C.S.A. § 6341(c). The standards for determining dependency and disposition and the scope of this court’s review of such findings were adequately set forth in In the Interest of Pernishek, supra, 268 Pa.Super. at 457, 408 A.2d at 877:

In order to preserve family unity “whenever possible,” the Juvenile Act provides that our courts: (1) may not find a child dependent” absent clear and convincing evidence and (2) after making such a finding, may not separate the dependent child from his parents unless such separation is clearly necessary. 42 Pa.C.S.A. §§ 6301(b)(1) and (3) and 6341(c). See In re Whittle, [263] Pa.Super. [312], 397 A.2d 1225 (1979); In re Clouse, 244 Pa.Super. 396, 368 A.2d 780 (1976). To ensure a proper resolution of these issues, separate counsel should represent the child at the dependency hearing, and the hearing judge should conduct a comprehensive inquiry by receiving evidence from both interested and disinterested witnesses and should support his decision in an opinion in which he discusses and analyzes the evidence fully. In re Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977); In re Clouse, supra; In re La Rue, 244 Pa. Super. 218, 366 A.2d 1271 (1976); Stapleton v. Dauphin County Child Care Service, 228 Pa.Super. 371, 324 A.2d 562 (1974); Commonwealth ex rel. Grillo v. Shuster, 226 Pa.Super. 229, 312 A.2d 58 (1973).

There is no dispute that the evidence presented below was “clear and convincing” as to the child’s dependency. At the conclusion of the dependency hearing, the judge permitted the child to remain with the mother pending the dispositional hearing. The court directed that the mother cooperate with the Children and Youth Services. A hearing was scheduled to be held within forty-five days.

At the subsequent hearing Carol Barrett, the Home Start worker, testified that the mother’s attendance at the weekly sessions was greatly improved. However, she reported that although the mother cooperated superficially, it was clear that there was no follow-up work done with Joey between visits. Also, Ms. Barrett testified that the mother fails to understand the needs of the child and how to work within the therapy program. She stated that the mother likes the child the way he is and is unable to formulate goals for his development.

Mrs. Avila also found the mother to be uncooperative. The mother took notes throughout her meetings with the caseworker and responded in an adversarial manner that her attorney, John Dunn, “knows about this. John Dunn says it’s okay. I tell John Dunn everything you tell me.” In view of this, Mrs. Avila found it impossible to work with the mother. Also as part of a case plan contract signed by the mother subsequent to the finding of dependency, it had been agreed that Dean, one of Nancy Maruschak’s sons, not live in the apartment. The boy “is a very, very nervous child” and difficult to control. Despite the case plan, the boy had continued to reside there. Also the mother continued to permit Joey to be left with a woman who is an alcoholic and unfit to babysit him. Moreover, the mother threatened a neighbor not to testify against her at the dispositional hearing. Mrs. Avila once again recommended that the child be removed from the mother’s home.

Dr. Raymond Seckinger, a psychiatrist with a special interest in child neglect, interviewed the mother. Dr. Seck-inger was familiar with the history of the case and Joey’s difficulties prior to the interview. The child was not present at that time. The conclusions reached by Dr. Seckinger were strikingly similar to those reached by Mrs. Barrett and Mrs. Avila. He stated: “She’s not able to comprehend directions, instructions and especially she’s not able to comprehend the needs of the child.” According to Dr. Seckinger the mother has a learning disability which prevents her from understanding her own feelings as well as those of others. Also he indicated that, although this disability is not hereditary, Joey is in jeopardy of suffering from this same learning disability. The doctor, however, was optimistic that eventually with therapy the mother could acquire parenting skills. It was his opinion, however, that in order for this to come about the child should be separated from his mother except for liberal visitation. The following exchange took place during cross-examination:

Q Doctor, isn’t it also true that sometimes separation results in a tension with the parent that can lead the other way, can provide a lack of incentive and be an impediment to the parent working with the responsibilities they need to work with?
A In my clinical experience I have never seen that happen. The parents realize the importance of distance from the child to be able to understand the child’s needs. If the parent doesn’t get distance they can’t see the child. They never will see the child. Distance, I am talking about, emotional differentiation so I have never seen anybody be hurt by the separation. I have seen them get depressed or go through feelings. That’s what they go through but that we understand and that’s part of the positive trauma. That’s what we expect so then when they re-enter with the child they really have something going. Then they can sense where the child is.
Q You fully expect whenever children are separated from the parents it provides a positive incentive from the parents, it will work out and very likely the child will return to the parents?
A In this particular situation.

It was Dr. Seckinger’s opinion that Joey’s future development and emotional health would be threatened if he were to remain with his mother.

In contrast to the other witnesses, Rose Simco, a speech pathologist, testified to Joey’s progress and his mother’s cooperation. Joey was scheduled for therapy three times a week with Ms. Simco. She reported that there was no problem with attendance and that the mother was apparently working with Joey between sessions. Joey showed progress in three areas that the therapist had worked on. However, despite this progress, the child is still below his age level. Ms. Simco stated that he has “a fair chance” of catching up to his age level in the three areas of sound development, understanding of language and expressive language. Ms. Simco was not able to give an opinion as to what effect separation from his mother would have on Joey’s development.

Following the disposition hearing the lower court judge indicated that he would prefer to keep the matter open for another ninety days to further monitor Joey’s development. The court, however, stated that the mother must cease living with Nancy Maruschak but made clear that the court was not otherwise interfering with their relationship. The mother refused to follow this directive. A discussion ensued whereby the court attempted to explain its position but the mother continued in her refusal. At that point the court entered its order placing custody of Joey with the Lehigh County Children and Youth Services for foster care. In its opinion the court explained its decision as follows:

We believe that it was essential that a modicum of order and consistency be established in Joey’s household because all of the experts had indicated that he required the care and attention of Debra as a ‘primary educator.’ Appellant stated at the final hearing that she would not abide by the conditions and would continue to live with her paramour. Her refusal to accept this condition, in itself, was not the deciding factor in our determination to remove Joey from her custody. Rather, her refusal revealed forcefully her true feelings and attitudes regarding Joey’s therapy. It became readily apparent that the testimony of various witnesses as to appellant’s cooperation to the least extent possible with the caseworker and home visitor was entirely correct. The court is now convinced that appellant has neither the ability nor the inclination to appreciate the seriousness of Joey’s disability.

We agree with the lower court’s determination. Our own review of the record indicates that there was ample evidence of the clear necessity to remove Joey. This court has held that where there are inadequacies in the child’s home, the court should first consider ordering a child welfare agency “to take the steps necessary to instruct the parents in the skills needed, and provide follow-up supervision in the home, where feasible.” In the Interest of Whittle, 263 Pa.Super. 312, 316, 397 A.2d 1225, 1226 (1979), citing Matter of DeSavage, 241 Pa.Super. 174, 187, 360 A.2d 237, 243 (1976). Here even before the dependency hearing C&YS was involved in the home. Despite this involvement, the mother’s parenting skills did not improve nor did the chaos within the child’s home subside. While Rose Simco testified to the child’s progress and the mother’s cooperation, social workers Barrett and Avila who had worked with the mother for a much longer time and who had regularly visited the home could cite no progress in the mother’s care nor in the child’s environment. During the initial hearings speech pathologist, Susan L. Moon, explained the importance of the home environment on Joey’s development:

Q How important is the home environment in what you have just said as opposed to the therapy sessions that you are able to offer?
A The home environment is extremely important. If the home environment had been more conducive to language stimulation Joey today would, you know, be functioning on age level. In terms of the environment now by itself helping get Joey up to age level, I think, he also needs the professional help, okay, because we do have that delay there.
Q But, even with the professional help, is the home environment of any significance?
A Absolutely. Absolutely. We only see a child two, three times a week for a half hour and we can’t do it alone.
Q And you mean that there must be on-going stimulation of this child’s development in the many hours that you don’t see him?
A Absolutely. Absolutely.

The pathologist also stated that as Joey gets older it becomes increasingly difficult to help the child “because they start realizing what they’re not capable of doing and then they’re frustrated by it, [so they] get further and further behind.”

Appellant argues that the condition placed upon her by the lower court to separate from Nancy Maruschak was unwarranted, unnecessary and unreasonable, and that her refusal to accept that condition does not establish evidence of “clear necessity” to remove the child. In her brief appellant states, “Judicial intervention with lesbian relationships in the interest of a child cannot be countenanced unless close causal connection between the lesbian relationship and the child’s improper parental care, control, development or well being is shown.” The mother, however, misconstrues the lower court’s purpose in separate living arrangements. The court made it abundantly clear that it was not seeking to interfere with the relationship between the women. The goal of the court was to establish order in the child’s home so as to foster the close relationship between the mother and son which, as all the experts agreed, was so badly needed. The disruption which the presence of Nancy Maruschak and her family created has been well documented. Moreover, even prior to the mother’s refusal to comply with this condition, evidence had been presented of the clear necessity to remove Joey.

We affirm the order of the court below. However, we note that a stipulation was placed on the record whereby the parties and their counsel agreed to formulate a case plan outlining the resources to be offered the mother and the steps she must take in order to regain custody of her son. Thus should circumstances change the mother is free to petition the lower court for a rehearing as to her child’s disposition.

Order affirmed.


author: WICKERSHAM, Judge:

text:
    434 A.2d 821
    COMMONWEALTH of Pennsylvania, v. Daniel CIENKOWSKI, Appellant.
    Superior Court of Pennsylvania.
    Argued April 14, 1980.
    Filed Sept. 18, 1981.

      James V. Voss, Pittsburgh, for appellant.
    Edward A. Yurcon, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   WICKERSHAM, Judge:

A two vehicle collision resulted in the death of a passenger in the jeep operated by appellant, Daniel Cienkowski. The accident occurred at the intersection of Routes 28 and 910 in Allegheny County, Pennsylvania on August 19, 1977 about 11:00 p. m., on a clear dry night. Route 28 is a public road proceeding generally in a north-south direction and at the point where it intersects with Route 910 it consists of six lanes-three lanes in either direction. Two lanes proceed through the intersection in each direction and there is a left turn lane for both north bound and south bound traffic. Route 910 is a public road proceeding generally in a west-east direction, and is a four lane highway at a point of this intersection. The intersection is governed by traffic signals.

Testimony at trial revealed that Daniel Cienkowski was proceeding east on Route 910, approaching the intersection. A truck driven by John Edward Ecker was proceeding south on Route 28 in the right hand lane of traffic and struck the Cienkowski jeep in the intersection. The impact caused the jeep to spin across the intersection and strike a car in the left turn lane on the northbound side of Route 28.

On September 1, 1977, criminal complaints against Daniel Cienkowski were issued charging him, inter alia, with one count of involuntary manslaughter. A non-jury trial was held on December 19 and 20, 1977, in the Court of Common Pleas of Allegheny County. The basic issue at the trial was whether the traffic signal governing traffic proceeding east on Route 910 was red when Cienkowski approached the intersection. Cienkowski’s demurrer to the charge of involuntary manslaughter was denied and he was found guilty of this charge. Cienkowski filed a motion for a new trial and a motion in arrest of judgment and on September 6,1978, both motions were denied. On September 18, 1978, judgment of sentence of probation was entered. Cienkowski then filed this timely appeal.

Involuntary manslaughter is defined in 18 Pa.C.S. § 2504(a) as follows:

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, he causes the death of another person.

We have frequently addressed the issue of the type of conduct sufficient to warrant conviction for involuntary manslaughter is a result of automobile accidents. These decisions establish that a mere vehicle code violation, without aggravating circumstances, is insufficient to sustain a conviction for involuntary manslaughter.

In Commonwealth v. Agnew, 263 Pa.Super. 424, 398 A.2d 209 (1979), we vacated judgment of sentence and discharged a defendant who had been charged with involuntary manslaughter in connection with a collision between an automobile and farm equipment being towed by a tractor driven by the defendant. It was alleged by the Commonwealth that the manner in which this equipment was towed was in violation of the Vehicle Code, and resulted in the accident which caused the death of two persons. In agreeing with the defendant that the Commonwealth had not proved the requisite mens rea for involuntary manslaughter this court ruled:

The state of mind, or mens rea, which characterizes involuntary manslaughter is recklessness or gross negligence: a great departure from the standard of ordinary care evidencing a disregard for human life or an indifference to the possible consequences of the actor’s conduct. . .. The same standard applies to deaths caused by motor vehicle violations:
“Conduct made unlawful by the Motor Vehicle Code is not necessarily the kind of ‘unlawful act’ included within the definition of involuntary manslaughter, for in many instances, the Code makes unlawful, acts of ordinary negligence. Hence, to sustain a conviction of involuntary manslaughter for a death resulting from an act which constitutes a transgression of the Motor Vehicle Code, it must be established that such violation ... together with the surrounding circumstances, ‘evidences a disregard of human life or an indifference to consequences.’ ” Thus, we have held the evidence insufficient to sustain a conviction for involuntary manslaughter where the driver of a motor vehicle was speeding, was driving on the berm of the road, was passing on the wrong side of the road under slippery conditions, failed to yield the right of way at a stop sign, and inattentively encroached upon the oncoming lane. ,

Id., 263 Pa.Super. at 427-28, 398 A.2d at 211 (quoting Commonwealth v. Busler, 445 Pa. 359, 361, 284 A.2d 783, 784 (1971)) (citations omitted) (emphasis added).

The trial court concluded that Cienkowski’s conduct in the operation of his motor vehicle was reckless based upon the following finding of facts: (1) the defendant entered the intersection at a time when the controlling lights for him on Rt. 910 were red; (2) that he entered the intersection at a time when he should not have done so; and (3) that he had had problems in controlling his vehicle just a few minutes prior to the collision. The lower court concluded that his conduct was clearly “reckless and grossly negligent and indicated an indifference to the consequences.” Lower court op. at 6.

The record in this case includes testimony of eyewitnesses that the light for Cienkowski was red at the time he entered the intersection and other testimony that the light was yellow when he entered the intersection. Much of the trial testimony concerned evidence relating to the sequence of the electric traffic signals that governed the multi-lane intersection. One Commonwealth witness testified that Cienkowski was approaching the intersection at a speed of twenty or twenty-five miles per hour in a fifty-five mile per hour speed zone. The witness testified, referring to Cienkowski, that “it really looked like he was going to stop.” Record at 31.

We have examined the circumstances surrounding appellant’s entry onto the six lane intersecting road against a red light to determine if the fact finder was justified in inferring therefrom a disregard of human life or an indifference to consequences. See, e. g., Commonwealth v. Rosov, 262 Pa.Super. 121, 396 A.2d 675 (1978).

We are persuaded that the overall circumstances of this accident compel the conclusion that sufficient evidence did not exist to sustain appellant’s conviction of involuntary manslaughter beyond a reasonable doubt.

Judgment of sentence reversed.

      . We note that the lower court sustained a demurrer to the lesser offense of homicide by vehicle. R.R. at 122a.


text:
    434 A.2d 823
    GATEWAY CENTER CORPORATION v. John W. MERRIAM and The Fidelity Bank. Appeal of John W. MERRIAM.
    Superior Court of Pennsylvania.
    Argued Feb. 2, 1981.
    Filed Sept. 18, 1981.
    Petition for Allowance of Appeal Denied Dec. 21, 1981.

      John Rogers Carroll, Philadelphia, for appellant.
    Marc H. Jaffe, Ardmore, for appellees.
    Before WICKERSHAM, POPOVICH and WATKINS, JJ.
   WICKERSHAM, Judge:

This is an appeal from a final injunction which forbids appellant, John W. Merriam, to aid Northland Equities, Inc. in the prosecution of its damage action pending in the federal court in which Merriam is also a counterclaim defendant. Not only does the injunction forbid Merriam from helping Northland Equities, Inc. in the prosecution of its case, but it also forbids him to communicate with North-land’s counsel, who also was defending Merriam in the counterclaim, and forbids him to use that lawyer any further in that defense. Finally it forbids Merriam to receive any part of the proceeds of that claim.

The theory on which the lower court entered this injunction is that by providing assistance to Northland Equities, Inc., the plaintiff in the federal case, Merriam breaches the terms of a release he gave to the instant plaintiff, Gateway Center Corporation, in 1975.

In the fall of 1970, the General Services Administration of the United States published a solicitation for bids for a lease of office space in the Philadelphia area, and three qualified bidders responded. The first bidder was the plaintiff, Gateway Center Corporation (hereinafter Gateway), which had no space but proposed to construct a building for the purpose of housing government offices at 36th and Market Streets in Philadelphia. The second qualified bidder was John W. Merriam, appellant, owner of the Curtis Building located at 6th and Walnut Streets, and the third qualified bidder was Northland Equities, Inc. (hereinafter Northland Equities), equitable owner of the Terminal Commerce Building located at 401 North Broad Street, Philadelphia. In February, 1971, the General Services Administration awarded the bid to Gateway.

Merriam alone protested and subsequently filed suit in Merriam v. Kunzig et al., Civil Action No. 71-2262 (subsequently captioned Merriam v. Sampson et a 1.) to set aside the award and lease on the ground that it had been fraudulently procured, based upon specific allegations of material misrepresentations by Gateway in its bid as to its ownership or dominion over the ground, its building plans, its permits and its construction financing. In March, 1975, on the eve of trial, Gateway settled its case with Merriam for a payment of $1,500,000 and on March 31, 1975, Merriam gave Gateway a release which provides that John W. Merriam, as the releasor, discharges all claims he and certain described privies of his, have or had or ever would have against Gateway or certain named individuals, as the releasees. It is a general release in which the releasors are described as follows:

JOHN W. MERRIAM ... does for himself and his successors, assigns, trustees, agents, employees, attorneys, legal representatives, heirs, executors and administrators, acting in their capacities as such, and on behalf of any firm or corporation in which he owns the controlling interest, the successors or assigns of any such firm or corporation, the past, present and future officers, directors, agents and employees of such firm or corporation (all of whom are hereinafter included under the term ‘Releasors’) ... discharge the said Releasees ....

Reproduced Record at 22a.

The claims discharged are described in the release as follows:

from all manner of actions, causes of action, suits, debts, dues, sums of money, accounts, reckoning, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, obligations, claims and demands whatsoever, both at law, in admiralty, or in equity, which against the Releasees or any of them the Releasors or any of them have ever had, now have or which they or any of their successors hereafter can, shall or may have, for, upon or by reason of ....

Id. at 22a-23a.

The subject matter of the release claims is described as “any matters ... which arise out of the following:”

1. the civil action entitled Merriam v. Sampson, etc. et al. . ..;
2. the award of a lease to Gateway Center Corporation by the General Services Administration . .., the competition for this lease, the negotiations ..., the performance under the award . . ., the financing or the construction of the Gateway Building;
3. a protest by Releasors .. .
4. communications or conduct by Releasors relating in any way to the matters set forth in paragraph 1 through 3, supra ....

Id. at 23a.

In April, 1976, Merriam entered into an agreement with Northland Equities to provide documents gathered by him in connection with the case of Merriam v. Sampson for its use in bringing suit against Gateway and its owners and other persons alleged to be in conspiracy with them in procuring the fraudulent award of the lease in February, 1971. The parties to this agreement were Merriam, Northland Equities, and L. G. Schafran. The agreement provided that Merriam would lend his documents to the other parties and in return therefor would receive a percentage of the net recovery, if any.

Thereafter, in June, 1976, Northland Equities filed suit against Gateway and its owners and approximately twenty other defendants in Civil Action No. 76-1730 in the United States District Court for the Eastern District of Pennsylvania, charging them jointly and severally with conspiracy to deprive Northland Equities of the opportunity to bid in free and fair competition unaffected by fraud for the government lease. In November, 1976, the Gateway defendants filed a counterclaim against the plaintiff in that action, Northland Equities, as well as Merriam and other defendants, charging them with conspiring fraudulently to sue Gateway and its owners in the federal Northland action. The counterclaim alleges, inter alia, that Northland’s offer was not responsive to the requirements of the solicitation; hence, its bid was not qualified.

As we have seen, the instant suit in equity was brought by Gateway to enforce specific performance of a document entitled “RELEASE BY JOHN W. MERRIAM” executed March 31, 1975, by Merriam, and to enjoin Merriam from assisting the claimants in the Northland litigation pending in the Eastern District of Pennsylvania, United States District Court. The assistance which Merriam was allegedly rendering to Northland Equities was alleged to be a violation of the general release signed by Merriam. Following the filing of proposed findings of fact and conclusions of law and final argument thereon: held before the Honorable Horace A. Davenport of the Court of Common Pleas of Montgomery County, an adjudication and a decree nisi was rendered on January 2, 1980. Merriam filed exceptions to that decree on January 11,1980, and on July 18,1980 the court en banc revised the decree nisi and entered a final decree enjoining Merriam from the following acts:

(1) from aiding, abetting, assisting or promoting the Northland action, Civil Action # 76-1730 in the United States District Court for the Eastern District of Pennsylvania or any other litigation directly or indirectly against plaintiff which relates to or arises from the award of a government lease in February 1971.
(2) from an[y] communication with John Carroll, Esq. or the Northland plaintiffs relating directly or indirectly to the prosecution of the Northland action damage claim against Gateway.
(3) from the use of John Carroll, Esq. as his attorney for his defense in the Northland action counterclaim, as the use of the same attorney would effectively nullify the above directives against cooperation of Merriam with the Northland plaintiffs.
(4) from receiving, directly or indirectly, any proceeds of the Northland action or any other litigation arising from a cause of action relating to or arising from the 1971 lease award.

Reproduced Record at 295a-296a.

From this final decree of the court of common pleas, Merriam brings the instant appeal.

Where the terms of the release and the facts and circumstances existing at the time of its execution indicate that the parties had in mind a general settlement of accounts, the release will be given effect according to its terms. A release ordinarily only covers such matters as may fairly be said to have been within the contemplation of the parties when it was given. Cady v. Mitchell, 208 Pa.Super. 16, 220 A.2d 373 (1966).

In an extended and erudite opinion, Judge Davenport reached certain basic conclusions and we quote with approval from the following portion:

The parties to the Release Agreement and the collateral documents of March, 1975 were responsible parties with a grasp of business matters and of the facts existing at the time their bargain was struck. Gateway and Merriam both knew that Merriam had assembled expensive and time-consuming files in preparation for the Kunzig action. Both parties also were fully aware that Merriam was not the only possible plaintiff in a case based upon alleged wrongful award of the February 1971 lease. Both knew that Northland, specifically, had been low bidder and was disappointed by the award to Gateway. Merriam had even negotiated seriously with the Northland group on a possible joint action against Gateway before proceeding alone in the Kunzig action. Neither party was ignorant of the threat that the Northland group represented to Gateway’s interest.
A meeting of minds was reached between Merriam and Gateway, and embodied in the General Release, based on surrounding circumstances.
The Release was therefore worded as the ‘discharge’ from all manner of actions, from all sums of money, upon any matters whatsoever which the Releasor [or obligor, Merriam] have ever had, now have, or which hereafter (he) can, shall or may have against the Releasees [obligees, the Gateway parties], which directly or indirectly are based upon arise from, involve, or relate to the award of a long-term lease to Gateway. (Emphasis supplied).
Merriam must have comprehended that he gave up not only his right to be plaintiff in the Kunzig action or any other action, but that he had relinquished totally all right to profit, even indirectly, in ‘any manner of action’, or to participate in ‘any matters whatever’ ‘related to’ the 1971 lease award. For this promise Merriam was to receive considerable money payments [over time]. There has been no failure of consideration on the part of Gateway. Gateway was buying its peace, but did not get what it had bargained for.
Flatly stated, Merriam, for good consideration, gave up to Gateway, and to Gateway alone, all rights to any profit he was possibly entitled to from the allegations made of unlawful award of the February 1971 lease. He then went forth and sold his admittedly expensive and time-consuming work product, assembled for the Kunzig action, to potential plaintiffs with a similar cause of action, for a share of any profits they might be able to make by pursuing a new case.
It is apparent that Gateway would not pay consideration of $1,500,000.00 merely for the temporary relief of an agreed order dismissing the Kunzig action with prejudice and Merriam’s pledge to refrain from instituting personally a similar case. Upon inquiry into the ‘primary purpose of the obligee’ (in this instance, Gateway), the conclusion is inescapable that payment was made to wipe out in toto all possible present or future danger to itself, directly, or indirectly, through the medium of Merriam.
Merriam argues that the June 1976 Agreement did not breach the 1975 Release because his name does not appear as a plaintiff in the Northland action, and that he released only ‘his own’ rights against Gateway, not those of the Northland plaintiffs. Such an argument is pure sophistry and should not be tolerated in a Court of Equity.
It does not follow that because the Northland action represented interests other than his own, that Merriam was therefore free to join himself to those interests for indirect gain after freely promising not to do just such an act, and for which [forbearance] he was to receive a princely sum.

Lower ct.op. at 14-16.

We agree with the conclusions reached by the chancellor that Merriam executed a binding agreement with Gateway in the document entitled “RELEASE BY JOHN W. MERRIAM” dated March 31, 1975, and that surrounding circumstances included the fact that potential plaintiffs with the cause of action identical to Merriam were known to exist by both parties to the release agreement. Merriam’s agreement to give documents assembled for his own action to Northland Equities and his personal assistance in preparing the Northland action, as well as his agreement to enrich himself with a percentage of any monies recovered therein, clearly indicated that he had not released or discharged Gateway. We conclude that by his conduct Merriam patently breached his release agreement of 1975 to Gateway.

Final decree affirmed.

      . The Statement of Questions Involved posed by the appellant are set forth in his appellate brief as follows:
      Does a general release which only discharges the releasor’s claims against the releasee prohibit the releasor from contractually assisting another party with a similar claim against the releasee in return for contingent share of the proceeds of that party’s claim? May a Pennsylvania equity court forbid a party to a federal action to communicate with his fellow defendants in that action or to use the same counsel in that action that his codefendants have been using?
      Where a complaint seeks to enjoin one party to a contract from compliance therewith, are the other parties thereto indispensable parties to the action?
      We find no merit whatsoever in the last two questions and will not further consider them.

      . The decree nisi rendered on January 2, 1980, was revised to exclude orders directing John W. Merriam to remove all documents relating to Merriam v. Kunzig et al., Civil Action No. 71-2262, from the possession of Northland Equities and its counsel. The court of common pleas en banc released Merriam from these obligations, because all parties had conceded in arguments on March 26, 1980, that the possession of the Kunzig documents was moot.