author: HESTER, Judge:

text:
    647 A.2d 221
    Varrell D. LEEDOM v. Vincent A. SPANO, and Thomas Spano, Individually and Co-Partners, d/b/a Haverford 2 Associates, a partnership, Registered to do Business in the Commonwealth of Pa., Robert B. Surrick, Jean K. Surrick, Helen Gaeser, Tobin Calvy, Jr., Colyas Calvy, Tobin Calvy, III, Donald E. Racer, Donna L. Racer, Alexander Colanero, Elizabeth Colanero, Noreen P. Burke, Raymond Pfaff, Deborah Pfaff, Leo M. Albright, Margaret D. Albright, Richard G. Bellwoar, Hugo A. Zaccaria, Erminia R. Zaccaria, Edward Graulich, Kenneth F. Wochele, Sr., Charlotte A. Wochele, John F. McShane, Rosemarie T. McShane, Margaret M. Kelly, Florence Buonanno, Charles F. Litz, Nancy Litz, Anthony J. Crane, Mary F. Crane, Mary J. Gentner, Dorothy A. Levy, Nicholas A. Cianci, Susan Lee Cianci, Linle Corporation, George P. Weekes, Etta M. Weekes, James Devita, Verna M. Devita, Jeffrey J. McLean, Denise McLean, Joseph Boffa, Rita Boffa, Robert Lantieri, Thomas Lantieri, Randall A. Segovia, Valerie A. Segovia, Thomas C. Lessik, Denise A. Vassilakos, William Stahmer, Charles Newman, Nancy Newman. Appeal of Helen GOESER, Tobin Calvy, Jr., Colyas Calvy, Tobin Calvy, III, Donald E. Racer, Donna L. Racer, Alexander Colanero, Elizabeth Colanero, Noreen P. Burke, Raymond Pfaff, Deborah Pfaff, Leo M. Albright, Margaret D. Albright, Richard G. Bellwoar, Hugo A. Zaccaria, Erminia R. Zaccaria, Mr. Edward Graulich, Kenneth F. Wochele, Sr., Charlotte A. Wochele, John F. McShane, Rosemarie T. McShane, Margaret M. Kelly, Florence Buonanno, Charles F. Litz, Nancy Litz, Anthony J. Crane, Mary F. Crane, Mary J. Gentner, Dorothy A. Levy, Nicholas A. Cianci, Susan Lee Cianci, Linle Corporation, George P. Weekes, Etta M. Weekes, James Devita, Verna M. Devita, Jeffrey J. McLean, Joseph Boffa, Rita Boffa, Robert Lantieri, Thomas Lantieri, Randall A. Segovia, Valerie A. Segovia, Thomas C. Lessik, Denise A. Vassilakos, William Stahmer. Varrell D. LEEDOM v. Vincent A. SPANO, et al. (Three Cases). Varrell D. LEEDOM v. Vincent A. SPANO and Thomas Spano, individually and Co-partners, d/b/a, et al. Appeal of Robert and Jean SURRICK (Three Cases).
    Superior Court of Pennsylvania.
    Argued Sept. 14, 1993.
    Filed July 22, 1994.

      Rocco P. Imperatrice, III, Newton Square, for appellants (at 2682) and appellees (at 2683, 2684, 2685 and 3096).
    Denis M. Dunn, Media, for Leedom, appellee.
    Thomas B. Rutter, Philadelphia, for Surrick, appellants (at 2683, 2684, 2685 and 3096) and appellee (at 2682).
    Before WIEAND, TAMILIA and HESTER, JJ.
   HESTER, Judge:

This case involves five separate appeals which arose out of a mortgage foreclosure action instituted by the mortgagees Leedom against: 1) the mortgagors Spanos, 2) a large number of homeowners who purchased their properties subject to a single prior mortgage executed by Spanos and from which a forged mortgage release later was filed by an unidentified individual, and 3) the sureties, Surricks, who had guaranteed payment by the original mortgagors to the mortgagees. The jury rendered a verdict in favor of the mortgagees and against Spanos, the sureties, and the homeowners. On July 1, 1992, the Delaware County Court of Common Pleas denied post-trial notions and molded the jury verdict in favor of the mortgagees and against the sureties and the homeowners by eliminating a purported increase in the mortgage interest rate as not binding on them. The court retained intact the original verdict against the mortgagors, which included the claimed increase in the interest rate. The mortgagees then praeciped for entry of judgment against the sureties and the homeowners, and, on July 15, 1992, the trial court directed entry of judgment. The sureties appealed from the judgments entered against them on their guarantee in favor of the mortgagors and in favor of the homeowners. In addition, the homeowners appealed the judgment entered against them in favor of the mortgagees. By order dated December 14, 1993, we consolidated the appeals for disposition. We reverse.

The record reveals the following. Appellants Robert and Jean Surrick, the sureties, appealed from judgment entered against them in a mortgage foreclosure action instituted by Varrell D. Leedom and her now deceased husband, Charles L. Leedom, appellees. The jury found appellants jointly and severally liable as co-sureties to appellees on a mortgage debt owed by Vincent and Thomas Spano t/a Haverford 2 Associates (hereinafter Spanos). Appellees had owned twelve acres of land situated in Upper Providence Township, Delaware County, west of the city of Philadelphia, and formerly known as the Rose Tree Race Track (the “property”). Robert B. Surrick, an attorney, and his wife owned approximately four acres of land which adjoined the property. In 1971, in consideration of a purchase price of $279,000, appellees executed an agreement to sell the property to the Surricks, contingent upon the property being re-zoned to permit the construction of multiple occupancy residential dwellings.

The township zoning board subsequently denied the request for a change in zoning. This decision was appealed and ultimately reversed by our Supreme Court. See Surrick v. Zoning Board of Upper Providence Township, 476 Pa. 182, 382 A.2d 105 (1977). Following this ruling, Robert Surrick persuaded appellees to sell the property directly to Spanos on the same terms as agreed rather than selling to him, and then he assigned his purchase agreement to Spanos. Spanos planned to construct a ninety-seven townhouse development in four stages. Surricks’ four acres which adjoined the site were included in the development. At the closing in October, 1978, the construction lender insisted on a first mortgage position, and therefore, appellees accepted a second mortgage in the amount of the purchase price but with guarantees by appellants of full repayment. The mortgage was payable in four yearly installments with an interest rate of eight and one-half percent.

The first three stages of the development were built and marketed. Appellees executed mortgage releases for each of the three stages of the project as each stage was completed. Spanos timely paid the first three installments of the mortgage debt. Spanos subsequently informed appellees that they were having difficulty in selling the townhouses in the fourth stage as a consequence of the economy and higher interest rates. Spanos indicated that they could not pay the final balloon installment of $104,000 due October 10, 1981. No payment of principal or interest on this debt since has been made to appellees by either Spanos or appellants.

Negotiations followed among the Spanos, appellees, and appellants that began in 1981, and ceased in 1983. On September 22, 1981, Spanos made a “good faith” payment of $25,000 which was applied to one year of interest and was the last payment Spanos made. Spanos then traveled to Florida to convince appellees to accept immediate partial payment of a reduced amount in return for a corrected deed and a mortgage release of the remaining subdevelopment. Appellees signed a corrected deed (in order to show that their title came from a trust rather than from an estate) which subsequently was recorded. Appellees, however, refused to sign the mortgage release since they did not accept Spanos’s compromise. No written resolution regarding repayment of the mortgage debt was reached.

Instead, appellees reached an oral agreement with Spanos to extend the period to repay the debt in exchange for payment of an increased interest rate of “nineteen percent” on the remaining balance rather than “eight and one-half percent.” Formal notice of this mortgage modification was not sent to the appellants as the sureties and consequently, appellants Surrick never agreed to be bound by this increase in the interest rate. At trial, Robert B. Surrick stated his conclusion that he understood that appellees had accepted the compromise since the corrected deed was recorded.

The parties stipulated that a single mortgage release, with the forged signatures of appellees, was recorded which encompassed the fourth stage of the development immediately preceding the sale of the remaining townhouses. The title company did not detect the forgery, and consequently, the purchasers of the townhouses in the fourth stage (hereinafter referred to as “Homeowners”) now hold title to their property subject to the second mortgage of Spanos in favor of appellees.

There is little record evidence of further negotiations between 1983 and 1989, when appellees finally instituted this action against Spanos, appellants, and Homeowners. The Spanos have not paid either principal or interest on the extension of the mortgage. The trial court entered a molded verdict in the amount of $583,579.13 against Spanos as mortgagors, reflecting the full interest rate increase, and a judgment in the amount of $230,054.24 against appellants, which does not include the interest rate increase. Charles Leedom since has died and Robert and Jean Surrick have divorced. This appeal followed entry of the molded judgments.

Mortgagees vs. Sureties

Appellants first argue that appellees’ failure to institute an action against them on their guaranty within six years of default by Spanos results in appellees’ claim being barred by the six-year limitations period for claims based upon contracts. See 42 Pa.C.S. § 5527. Surricks contend the limitations period began to run automatically as soon as the debt matured and Spanos failed to pay. Appellants rely upon First National Consumer Discount Co. v. McCrossan, 336 Pa.Super. 541, 486 A.2d 396 (1984) (guaranty of payment of a note “when due” is actuated upon nonpayment at maturity and the guarantor warrants payment at a particular time, and not after pursuit and insolvency of the principal debtor). They contend that even though Spanos defaulted in 1981 by failing to make the final balloon payment, no action was instituted against appellants until September 30, 1989. Appellants assert that appellees were obligated to institute an action on the guarantee within a reasonable time after appellants were aware that the Spanos had defaulted and failed to do so. We agree.

Instantly, the trial court concluded that, although the guarantee given by appellants does not itself require that notice of a default first must be given before commencement of a claim or actuation of the guarantee, the statute of limitations on the guarantee did not begin to run until appellees elected to declare Spanos, as the principal debtors, to be in default and made a demand upon appellants to pay as the sureties. In essence, this means the sureties are bound by the same limitations period as their principals, the mortgagors. Otherwise, when and what is considered a default by the mortgagors may vary or be premature since they may not elect to declare a default and attempt a “work out.” The trial court relied upon Budget Charge Accounts, Inc. v. Shapson and Schwartz, 35 Pa. D. & C.2d 724 (1963) (Bucks County). Accordingly, it determined that the statute of limitations would not begin to run until a demand was made upon appellants as sureties, which occurred immediately prior to instituting this action.

We agree with appellants that First National Consumer Discount Co. v. McCrossan, supra, holds that the debtor does not have to be pursued and found insolvent before the surety may be held liable and the claim matures. Further, we conclude that the limitations period begins to run within a reasonable time after a material default has occurred. As a general rule, a statue of limitations begins to run when a plaintiffs cause of action arises or accrues. Thorpe v. Schoenbrun, 202 Pa.Super. 375, 337, 195 A.2d 870, 872 (1963); 51 Am.Jur.2d, Limitation of Actions § 126. In a contract case, a cause of action accrues when “there is an existing right to sue forthwith on the breach of contract.” Thorpe v. Schoenbrun, supra (citing 22 P.L.E., Limitation of Actions § 54). See also: Kapil v. Association of Pa. State College and Univ. Faculties, 504 Pa. 92, 99, 470 A.2d 482, 485 (1983) (cause of action accrues when plaintiff first could have maintained action to a successful conclusion); 51 Am.Jur.2d, Limitations of Actions § 107 (cause of action accrues the moment the right to commence an action comes into existence).

It is a fundamental principle of surety law that upon default by the principal, both principal and surety thereupon become liable on the original undertaking. See: Plummer v. Wilson, 322 Pa. 118, 121, 185 A. 311, 313 (1936). See also: Keystone Bank v. Flooring Specialists, Inc., 513 Pa. 103, 112 n. 6, 518 A.2d 1179, 1184 n. 6 (1986); Lincoln Bank of Erie v. Gem City Wholesale Grocery Co., 286 Pa. 421, 425, 133 A. 554, 555 (1926); Homewood People’s Bank v. Hastings, 263 Pa. 260, 265, 106 A. 308, 310 (1919); Pittsburg Construction Co. v. West Side Belt Railroad Co., 227 Pa. 90, 95, 75 A. 1029, 1030 (1910), aff'd 219 U.S. 92, 31 S.Ct. 196, 55 L.Ed. 107 (1911); C.M. Eichenlaub Co. v. Fidelity & Deposit Co. of Md., 293 Pa.Super. 11, 14, 437 A.2d 965, 966-67 (1981). Accord: 12 Am.Jur.2d, Bills and Notes § 1055; 22 P.L.E., Limitation of Actions § 58. Thus, the creditor’s cause of action against the surety accrues upon material default by the debtor. See In re Fidelity America Financial Corp. v. Litt, 35 B.R. 310 (E.D.Pa.Bankr.1983) (cause of action against a surety arose when the underlying contract was breached).

Postponement of the commencement of the limitation until the creditor elects to make demand on the surety places exclusive control of the statutory period in the hands of the creditor. By refusing to make a demand, he can defer the running of the statute of limitations indefinitely. This contravenes the underlying purpose for statutes of limitations and nullifies the benefits therefrom. See: Volpe v. Johns-Manville Corp., 323 Pa.Super. 130, 141, 470 A.2d 164, 170 (1983). Accord: Bell v. Brady, 346 Pa. 666, 670, 31 A.2d 547, 549-50 (1943) (statute of limitations should not be extended by the plaintiffs act or failure to act); Gurenlian v. Gurenlian, 407 Pa.Super. 102, 113 n. 2, 595 A.2d 145, 150 n. 2 (1991) (plaintiff cannot defer the running of the statute of limitations for his own convenience).

With respect to the statute of limitations, our Supreme Court has observed:

a party asserting a cause of action is under a duty to use all reasonable diligence to be properly informed of the facts and circumstances upon which a potential right of recovery is based and to institute suit within the prescribed statutory period.

Pocono Int’l Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983) (emphasis added). This duty is not excused because of mistake, misunderstanding, or lack of knowledge. Id.

In the instant case, the parties are agreed that the developer went into default on October 10, 1981. The present action was not commenced until September 20, 1989. By then the action against appellants was barred by the applicable statute of limitations. No notice of demand was made upon appellants as sureties from the time of Spanos’s material default until the date that this action was instituted. Consequently, we conclude that appellees’ action against appellants is barred by the statute of limitations. Since we find that appellants’ action is time-barred, it is unnecessary to reach the remaining issues which they raise.

Homeowners vs. Sureties

Appellants assert the trial court erred in entering the molded jury verdict against them and in favor of Homeowners as subrogees to the judgment against Homeowners in favor of appellees as mortgagees. Appellants contend that, as sureties, they stand in no higher position than appellees stand as the original creditor. Since appellees should not be entitled to judgment against the sureties, appellants argue that Homeowners, as subrogees to the judgment in favor of appellees, are not entitled to a judgment against them on their guarantee of Spanos. Moreover, there is no duty as sureties running from them to Homeowners.

We agree. Under common law subrogation, Homeowners have a claim against Spanos and through mortgagees against appellees for Spanos’s failure to pay the mortgage debt on demand and for selling houses to them based on a forged partial release that was not executed by appellees. Since appellees are time-barred in their claim against appellants, Homeowners also are time-barred since their claim under the surety agreement arises under appellees’ claim. Homeowners’ remedy instead will lie with claims against their title insurance carriers.

Sureties vs. Mortgagors

Appellants contend that the trial court erred in not granting them judgment notwithstanding the jury verdict against Spa-nos pursuant to their post-trial motions. The court required that liability first must be fixed on the guarantee before they could obtain judgment against Spanos. This requirement no longer applies since we have found appellees’ action is time-barred. Since we have found that appellants are not now obligated to pay appellees on their guarantee, it follows that appellants are not entitled to an immediate judgment back against Spanos.

Homeowners vs. Mortgagors

We now address the claims asserted by Homeowners in their appeal. Homeowners argue that the court should have found that appellees equitably were estopped in their claim against Homeowners’ title to the purchased properties resulting from the non-payment of the mortgage by the Spa-nos as a matter of law. In other words, they contend that a six-year delay by appellees in filing suit after the initial default by Spanos was not justified. This delay led to reliance by Homeowners in purchasing their properties on the presumption that the title was unencumbered. Otherwise, Homeowners assert they would not have purchased their homes if they had known of the default even though a forged mortgage release was filed. They rely upon Union National Bank of Little Rock v. Cobbs, 389 Pa.Super. 509, 567 A.2d 719 (1989), and Fleet Real Estate Funding Corp. v. Smith, 366 Pa.Super. 116, 530 A.2d 919 (1987) (each holding that failure to exercise diligence in following Federal Housing Authority lending procedures could be asserted as an equitable defense in a foreclosure proceeding at law). Finally, they contend that a forged mortgage release passes them unencumbered title. See United States ex rel. Marcus v. Morris, 360 Pa. 298, 62 A.2d 43 (1948). Therefore, they contend the trial court erred in refusing to grant them judgment n.o.v.

We reject this contention. Our standard of review on appeal from the denial of judgment n.o.v. is clear. Seewagen v. Vanderkluet, Inc., 338 Pa.Super. 534, 488 A.2d 21 (1985) (standard of review of denial of a request for a judgment n.o.v. is to decide if there is competent evidence to sustain the verdict giving the verdict winner the benefit of every reasonable inference). As mortgage foreclosure is an action at law rather than at equity, equitable defenses may be asserted only in certain instances. See Fleet Real Estate Funding Corp. v. Smith, supra. The cases cited by Homeowners concern governmental regulations for handling defaulted mortgages which were deemed incorporated into the mortgage agreements, so that compliance with the regulations by the lenders was required before they could proceed in a foreclosure action. There, the claim was that the mortgagors acted too quickly. Here, Homeowners are asserting equitable estoppel from forbearance also rises as an equitable defense as a matter of law in the foreclosure action.

We disagree. We find no basis to conclude that appellees owed Homeowners a duty of due diligence or were precluded from their right to forebear in collecting the debt owed to them. Appellees did not make any positive representations to Homeowners through their forbearance. Homeowners did not establish that appellees had any knowledge whatsoever of the forged mortgage release. Thus, we find Homeowners cannot assert any basis recognized at law for asserting equitable estoppel from appellees’ forbearance as a matter of law. Moreover, the issue of lack of diligence by appellees in pursuing their claim was submitted to the jury as an issue of fact and was decided adversely as to Homeowners. Finally, the bar against an action on the guarantee does not apply to the mortgage foreclosure action.

Next, Homeowners claim that there is no basis in the record to hold their titles subject to the mortgage obligation owed to appellees by Spanos. They maintain that they would not have purchased the property had this mortgage not been released relative to their properties. They assert that they are fault free and have the right to rely on public records. Consequently, they contend they should have been granted judgment notwithstanding the verdict vis-a-vis appellees.

This contention must be rejected. It is correct that Homeowners are the party least related to the forged document. Nevertheless, this claim is similar to their claim of equitable estoppel resulting from lack of due diligence by appellees, which was rejected by the jury. Finally, United States ex. rel. Marcus v. Morris, supra, cited by Homeowners for the proposition that the forged release gave them unencumbered title is inapplicable since it was the seller in that case who forged the document. In this instance, it is not clear who forged the document. Thus, the consequences of the forged release cannot be placed upon appellees as the mortgagees. As the forged release may be rendered void, the consequence is that Homeowners’ title is subject to the mortgage in favor of appellees. Without any duty owed by appellees to Homeowners, we find there is no basis to grant them judgment notwithstanding the verdict.

Next, Homeowners contend that the trial court erred in failing to instruct the jury regarding application of laches. Again, the claim is that appellees waited too long in filing suit after they had knowledge of default by Spanos. They rely upon Suplee v. Leedom, 302 Pa.Super. 39, 448 A.2d 83 (1982), which applied laches as a defense in a suit for specific performance of a land purchase. We conclude the trial court correctly denied this request. Laches is not a defense in a court of law. Beech v. Ragnar Benson, Inc., 402 Pa.Super. 449, 587 A.2d 335 (1991), petition for allowance appeal granted, 527 Pa. 627, 592 A.2d 1295 (1991). Suplee v. Leedom, supra, is not applicable since it involved an equity action to compel specific performance. The current action was at law. Hence, there was no valid basis for the request.

Finally, Homeowners argue that the trial court erred in refusing to instruct the jury regarding the status of Homemakers as bona fide purchasers for value. They contend that they justifiably relied on the state of the public record in purchasing their properties, and that the state of the record resulted from appellees’ unjustified delay in filing suit. Since they paid for their property without knowledge of the defects in the title they assert they are entitled to unencumbered title as bona fide purchasers for value.

We note, however, that Homeowners can point to no basis from which to impute that appellees had any knowledge that a forged mortgage release had been filed. Appellees lived in Florida following the sale to Spanos, and did not return to the immediate area. There is no case cited by Homeowners to support the proposition that they may rely on a forged document to assert their status as bona fide purchasers for value. See Brown v. Henry, 106 Pa. 262 (1884) (our Supreme Court rejected a claim that a subsequent purchaser could recover based on a forged satisfaction of a mortgage); Lancaster v. Smith, 67 Pa. 427 (1871) (purchaser could not assert a claim against seller for a forged mortgage satisfaction absent conduct by seller that raises estoppel).

Homeowners also cannot point to any knowledge, duty, or negligence by appellees related to the forged mortgage release which entitles them to impute appellees with responsibility for it. Thus, Homeowners are entitled to rely on the mortgage release only if they can show that it was signed by appellees as mortgagees. See 21 P.S. § 720-2 (mortgage satisfaction effective if it is duly executed by mortgagee). Contrary to assertions by Homeowners, a duty by appellees to correct the situation is not established presumptively merely from the recording of the release unless there is no evidence that appellees had knowledge that it was forged. Accordingly, we conclude the trial court correctly determined that there was no basis for the assertion by Homeowners of their status as bona fide purchasers.

The result is that Homeowners and Spanos are liable to appellees on the mortgage debt since a fraudulent release is voidable and may be set aside. See Butler County v. Brocker, 455 Pa. 343, 314 A.2d 265 (1974); 12 Pa.C.S. § 5107. Appellants are not liable on the surety agreement to either appellees or Homeowners. Homeowners’s remedy for liability for the mortgage debt lies against their title insurance companies for failing to detect a forged release.

Judgment in favor of appellees against Homeowners and Spanos is affirmed. Denial of judgment in favor of appellants against Spanos is affirmed. Judgment against appellants in favor of appellees and Homeowners is vacated. Jurisdiction relinquished.

TAMILIA, J., concurs in the result.

      . We note that separate appeals from separate judgments in the same case is proper. See Pa.R.A.P. 512 (separate parties may appeal separately from the same order); General Electric Credit Corp. v. Aetna Casualty and Surety Co., 437 Pa. 463, 263 A.2d 448 (1970) (taking of one appeal from several judgments is not acceptable practice and is discouraged).

      . Apparently, Surrick wished to avoid any appearance of ethical impropriety resulting from a lawyer engaging in business transactions with his clients.

      . The guarantee signed by both Robert and Jean Surrick reads as follows:
      IN CONSIDERATION OF the agreement by CHARLES L. LEE-DOM and VARREL L. LEEDOM, husband and wife, to permit the assignment by the undersigned to HAVERFORD 2 ASSOCIATES of a certain contract for the stile ' by Leedoms to the undersigned of property located in Upper Providence Township, Delaware County, Pennsylvania, the undersigned do jointly and severally guarantee the performance of that certain mortgage dated October 10, 1978, given by HAVERFORD 2 ASSOCIATES to CHARLES L. LEEDOM and payment of the underlying mortgage debt.

      . Most, but not all, of the homeowners joined in this appeal.

      . We note that 8 P.S. § 1 modified the distinction at common law between a surety, who became immediately liable upon default, and a guarantor, who did not become liable until efforts to collect from the defaulting principal proved unavailing. It provides that all agreements to answer for the debt of another will be regarded as a suretyship, unless the agreement shall contain words in substance stating that "this is not intended to be a contract of suretyship."

      . In 1982, the statute of limitations was amended to provide a limitation of four years on all contract actions, whether the contract was oral or in writing, so long as it was not under seal. 42 Pa.C.S. § 5525(8) (Supp.1982).

      . Even where a demand is necessary to begin the running of the statute of limitation, the demand must be made within a reasonable time. See: Bell v. Brady, 346 Pa. 666, 670, 31 A.2d 547, 549 (1943); Gurenlian v. Gurenlian, 407 Pa.Super. 102, 113 n. 2, 595 A.2d 145, 150 n. 2 (1991); 51 Am.Jur.2d, Limitation of Actions, § 68. In this case, the creditor waited almost eight years before making a demand on the surety. This clearly is an unreasonable time.


source: Caselaw Access Project

author: CERCONE, Judge:

license: Public Domain

text:
    647 A.2d 229
    COMMONWEALTH of Pennsylvania v. Albert B. MINOR, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 27, 1994.
    Filed Aug. 8, 1994.

      Rachel L. Morocco, Asst. Public Defender, Greensburg, for appellant.
    Jack C. Christin, Asst. Dist. Atty., Greensburg, for Com., appellee.
    Before McEWEN, CIRILLO and CERCONE, JJ.
   CERCONE, Judge:

This is a direct appeal from the judgment of sentence entered by the lower court after appellant, Albert B. Minor, was convicted of driving while his operator’s license was suspended or revoked for a DUI-related offense. We affirm.

District Justice Douglas Weimer found appellant guilty of the summary offense of driving while operating privileges are suspended, DUI-related. Appellant requested a trial de novo which was held before the Honorable Richard E. McCormick, Jr., who found appellant guilty. Judge McCormick denied appellant’s post-verdict motions and subsequently sentenced appellant to serve ninety (90) days imprisonment and to pay a fine of one thousand dollars ($1,000). The instant timely appeal followed in which appellant raises one issue: whether the trial court erred as a matter of law when determining that appellant’s failure to provide the Department of Transportation with a current address precluded his reliance on the defense of lack of notice.

The heart of appellant’s argument is the claim that he was entitled to actual notice of the underlying suspension, despite the fact that he had failed to provide the Department of Transportation with his correct mailing address. This argument is premised upon the Pennsylvania Supreme Court’s ruling that a defendant must receive actual notice that his operating privileges have been suspended or revoked before he may be convicted of the secondary offense of driving while those privileges are under suspension. Commonwealth v. Kane, 460 Pa. 582, 333 A.2d 925 (1975). The Commonwealth may not satisfy this requirement merely by introducing evidence of the fact that the Department of Transportation sent a suspension notice to the defendant via first class mail. Id. at 586, 333 A.2d at 927.

Subsequent to Kane, several appellate cases have clarified the Supreme Court’s decision by holding that the Commonwealth proved “actual notice” where additional evidence was presented which merely implied actual notice. In Common wealth v. Heckman, 404 Pa.Super. 335, 590 A.2d 1261 (1991), a panel of this court explicitly discussed the Pennsylvania Motor Vehicle Code’s requirement that motorists apprise the Department of Transportation regarding any address changes. Id. at 346, 590 A.2d at 1266 (citing 75 Pa.C.S.A. § 1515). The Heckman court held that “when a defendant fails to notify PennDOT of a change in address pursuant to 75 Pa.C.S.A. § 1515, the defendant cannot rely on this violation of the law to insulate him from more serious violations by claiming lack of actual notice.” Id. at 346-46, 590 A.2d at 1267.

In the instant case, the. arresting officer testified that he observed appellant fail to obey a solidly red traffic light, and therefore stopped him to issue a citation. N.T. 9/13/93 at 4. Appellant presented an expired operator’s license to the officer. Id. at 5. The officer thereupon checked appellant’s operator’s number and learned that appellant’s license had been seized and suspended for a DUI-related offense. Id. The address on the expired license did not correspond with the address listed on the certified driver’s record; and neither matched the location appellant gave as his current address. Id. at 8-12.

Judge McCormick explained the evidence admitted at trial in the following manner:

The Commonwealth introduced the certification statement of the Department of Transportation indicating the suspension notice herein was mailed to the defendant on February 20, 1992, to AP8244, Drawer A, Old Route 22, Cresson, Pa 16630. We know that that address was the State Correctional Facility at Cresson, where the defendant was incarcerated for a period of time. Unfortunately, after he was paroled from his incarceration, he failed to notify the Department of Transportation of his change of address, as required by 75 Pa.C.S. § 1515, wherein such notification of change of address is required within 15 days of the change.

Trial court opinion docketed January 27, 1994 at 13-14. In light of all this evidence that appellant had not provided the Department of Transportation with his current address, Judge McCormick found that appellant was precluded from presenting the defense that he lacked actual notice of the underlying suspension. We find this ruling to be correct and in conformity with Commonwealth v. Heckman, supra.

Judgment of sentence affirmed.

      . 75 Pa.C.S.A. § 1543(b).

      . See, e.g., Commonwealth v. Horney, 365 Pa.Super. 152, 529 A.2d 18 (1987) (notice requirement met where evidence was presented that notice was mailed and defendant admitted that he had received prior notice mailed to same address apprising him that he was required to take special examination prior to reissuance of license); Commonwealth v. Gray, 356 Pa.Super. 299, 514 A.2d 621 (1986), appeal denied, 514 Pa. 638, 523 A.2d 345 (1987) (notice was sufficient when mailed to correct address and defendant had previously surrendered his license in response to notice mailed to him at same address); Commonwealth v. Burkett, 300 Pa.Super. 72, 445 A.2d 1304 (1982) (defendant had surrendered license and attempted to conceal fact he was driving by removing himself from driver’s seat).

      . We are cognizant of the fact that appellant believes he is entitled to relief because of sentiments expressed in the opinions in support of reversal in Commonwealth v. Warrenczuk, 534 Pa. 623, 633 A.2d 1167 (1993) , cert. denied, - U.S. -, 114 S.Ct. 1854, 128 L.Ed.2d 478 (1994) and Commonwealth v. McDonough, 533 Pa. 283, 621 A.2d 569 (1993). Both cases are plurality decisions by an equally divided Pennsylvania Supreme Court. It is well-settled that plurality opinions do not have precedential authority. Commonwealth v. Bracero, 325 Pa.Super. 494, 590 n. 3, 473 A.2d 176, 179 n. 3 (1984), aff’d, 515 Pa. 355, 528 A.2d 936 (1987). Non-majority decisions of the Pennsylvania Supreme Court are not binding on lower courts. Commonwealth v. Davenport, 462 Pa. 543, 559 n. 3, 342 A.2d 67, 75 n. 3 (1975); Commonwealth v. Mignogna, 401 Pa.Super. 188, 195 n. 1, 585 A.2d 1, 4 n. 1 (1990), appeal denied, 530 Pa. 660, 609 A.2d 167 (1992). Accord Commonwealth v. Covil, 474 Pa. 375, 378 A.2d 841 (1977) (opinion in support of affirmance had no precedential value where it was adopted by only three of six justices, and could be cited only for its persuasive value). Unless or until a majority decision of the Pennsylvania Supreme Court decides otherwise, Commonwealth v. Heckman, supra constitutes viable precedent.


author: HOFFMAN, Judge:

text:
    647 A.2d 231
    Jason PASCAL and Martin Pascal, Appellants, v. Jeffrey CARTER, M.D. and Radiological Diagnosis, Inc.
    Superior Court of Pennsylvania.
    Argued April 26, 1994.
    Filed Aug. 23, 1994.

      William D. Marvin, Bensalem, for appellants.
    Jonathan K. Miller, Philadelphia, for Jeffrey Carter, M.D., appellee.
    Before McEWEN, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment entered pursuant to the November 23, 1993 order denying appellants’ post-trial motions. Appellants, Jason and Martin Pascal, present the following issues for our review:

1. Where the minor plaintiff accurately reported a hand injury and symptoms to his parents and his athletic trainers, was there sufficient evidence to charge both him and his non-custodial father with contributory negligence for failing to seek medical treatment sooner than they did?

2. Can a radiologist who misses an obvious wrist fracture on an X-Ray film raise a contributory negligence defense where the causation element of that defense depended upon speculation that if the minor plaintiff had sought treatment earlier, a different doctor would have made the correct diagnosis and proper treatment would have followed?

3. In a medical negligence case, does a patient’s conduct before consulting the defendant physician, alleged only to contribute to the condition for which the patient sought treatment, constitute contributory negligence?

4. Where a minor plaintiff claims damages for medical negligence, and the minor’s father joins as plaintiff to assert a derivative claim for medical expenses, should the alleged contributory negligence of either or both plaintiffs be considered jointly permitting the father’s negligence to be imputed to his son and thereby barring the son’s recovery?

Appellants Brief at 4. For the reasons set forth below, we reverse.

Appellant, Jason Pascal, injured his wrist while participating in a football game in the fall of 1988. In February of 1989, the injury was exacerbated during a volleyball game. In March of 1989, X-Rays were taken of Jason’s wrist at Radiological Diagnosis. Dr. Jeffrey Carter, a radiologist employed there, read the X-Rays and reported that there was no evidence of fracture or abnormality. Due to continued wrist pain, another X-Ray was taken of appellant’s wrist in January of 1990. A fracture of the carpal navicular bone in Jason’s wrist was diagnosed. Jason then underwent surgery to repair the wrist. On October 15, 1991, appellants filed a complaint alleging medical malpractice against appellees, Dr. Carter and Radiological Diagnosis, Inc.. The case proceeded to trial before the Honorable Charles C. Keele. On February 8, 1993 the jury returned a verdict in favor of appellees. Post-trial motions were filed and denied. This timely appeal followed.

We will address appellants second argument first as it is dispositive of this appeal. Appellants argue that they are entitled to a new trial as the court erred in charging the jury on contributory negligence. Specifically, appellants contend that as their alleged negligence was neither the cause in fact nor legal cause of the injury, the court erred in instructing the jury on contributory negligence. We agree.

In the instant case, appellant Jason Pascal initially injured his wrist in the fall of 1988. Appellant however, did not seek medical treatment of the wrist until March of 1989. In March of 1989, appellee, Dr. Carter read X-Rays of appellant’s wrist. The X-Rays demonstrated a fracture of the carpal navicular. Dr. Carter, however, informed appellants that there was no evidence of a fracture or abnormality. Dr. Carter admitted at trial that his failure to diagnosis the fracture was negligent. The trial court instructed the jury that Dr. Carter was negligent as a matter of law. The trial court also instructed the jury that it could find appellants contributorily negligent for their failure to seek treatment earlier than March of 1989. This instruction however was erroneous.

If there is some evidence of contributory negligence, the issue should be submitted to the jury. McCullough v. Monroeville Home Ass’n, Etc., 270 Pa.Super. 428, 411 A.2d 794, 795 (1979). However, the burden of establishing contributory negligence rests on the defendant. Id. at 431, 411 A.2d at 795. Additionally, for a plaintiffs negligent conduct to effect his recovery, his conduct must be a proximate cause of his injury. Koelle v. Philadelphia Electric Co., 443 Pa. 35, 42, 277 A.2d 350, 354 (1971). In order for negligent conduct to be a proximate cause of an injury it must be a substantial factual cause of the injury for which damages are sought. Dornan v. Johnston, 421 Pa. 58, 60, 218 A.2d 808, 809 (1966).

Here, appellants alleged contributory negligence was in failing to seek treatment for Jason Pascal’s injured wrist earlier. Appellees argued that if Jason Pascal had sought treatment for the wrist soon after the initial injury, the treatment could have obviated the need for surgery. There was testimony presented that earlier treatment might have made surgery unnecessary. However, there was no testimony presented that a proper diagnosis of the fracture could have been made at an earlier date. Deposition of Dr. Bong S. Lee, 1/11/93 at 82. In fact, the expert testimony indicated that the fracture became clearer over time. Deposition of Dr. William B. McNamee, 1/22/93 at 60. Without any evidence demonstrating that an earlier diagnosis would have been successful in discovering Jason Pascal’s injury, the failure to seek such a diagnosis cannot have been a cause of the need for surgery on the wrist. Moreover, it would be entirely speculative to assume without the benefit of expert testimony on the issue, that simply because it was negligent for Dr. Carter to fail to diagnosis the fracture in March of 1989, an earlier diagnosis would have been successful in discovering the injury to the wrist. See Dornon at 60-61, 218 A.2d at 810. Thus, as there was no evidence of causation between appellants’ negligence and the injury alleged, the trial court erred in instructing the jury on contributory negligence. See Cuthbert v. City of Philadelphia, 417 Pa. 610, 615, 209 A.2d 261, 264 (1965). Moreover, as this error clearly influenced the verdict, a new trial must be granted. Accordingly, the order is reversed and the case is remanded for a new trial.

Reversed and remanded. Jurisdiction is relinquished.

McEWEN, J. concurs in the result.

      . Due to our disposition of this issue, we need not address the other issues raised by appellants.


author: CIRILLO, Judge:

text:
    647 A.2d 233
    Shirley NUDELMAN and Samuel Nudelman, Her Husband, Appellants, v. Kevin Donald GILBRIDE.
    Superior Court of Pennsylvania.
    Submitted May 25, 1994.
    Filed Aug. 30, 1994.

      Joseph G. Price, Scranton, for appellants.
    George E. Mehalchick, Scranton, for appellee.
    Before CAVANAUGH, CIRILLO and BROSKY, JJ.
   CIRILLO, Judge:

Shirley Nudelman and Samuel Nudelman (the Nudelmans) appeal from an order entered in the Court of Common Pleas of Lackawanna County denying their motion for a new trial. We affirm.

The instant appeal arises out of a motor vehicle accident, whereby the Nudelmans filed a civil action against Kevin D. Gilbride seeking recovery for pain and suffering and loss of consortium.

On November 13, 1990, Kevin Gilbride was driving down Vine Street in Lackawanna County. Shirley Nudelman, 63 years of age at the time, having just exited a fashion show at the Masonic Temple, was attempting to cross Vine Street at the intersection of Vine Street and North Washington Avenue. As she proceeded across the intersection she was struck by a car driven by Kevin Gilbride. Mrs. Nudelman suffered nerve damage to her knee and lower left leg. The damaged nerve caused her to experience burning pain and paresthesias in her left leg and knee. She also suffered torn cartilage in her left knee, a fractured right toe, and indentations on the inside of her left knee. The collision also aggravated her pre-existing condition of osteoarthritis in her left knee. Mrs. Nudelman had a long standing history of degenerative arthritic condition in both knees, and was treated with steroid injections approximately ten years prior to the accident.

Shirley Nudelman was taken to Moses Taylor Hospital, by ambulance, treated for her broken toe and released. She was not given crutches or any other device to assist in walking. After about a week of home rest, she went to her family doctor, Dr. Udomsak, for treatment of the continuing pain she was experiencing. Dr. Udomsak put Mrs. Nudelman on a physical therapy program which did not bring her any relief. Dr. Udomsak next referred her to Dr. Malloy, an orthopedic surgeon. Dr. Malloy ran several tests and recommended steroid injections. Mrs. Nudelman gained little relief from this treatment. About two months latter, she returned to Dr. Malloy, who at that time opined that she was exaggerating her injuries based on her subjective belief that she was suffering from a swollen knee. By objective measurement the knee was only slightly swollen and had no effusion of any kind. Dr. Malloy also admitted that the pain and swelling could have been due to her pre-existing arthritic condition in both knees. At this point Dr. Malloy treated her with anti-inflammatory drugs. As a result of this medication, Mrs. Nudelman developed ulcers and acute pancreatitis, which required three days of hospitalization. Dr. Malloy then resorted to more steroid injections and heat therapy.

The appellee, Kevin Gilbride, did not provide any experts to contradict Dr. Malloy’s testimony. However, on cross-examination of Dr. Malloy and Shirley Nudelman, it was evident that Mrs. Nudelman did not experience constant pain, but sporadic pain in the knee. In fact, the knee functioned painlessly in a range of motion test. The size of the area that the skin was indented was about 3 inches by 2 inches on the inside of the knee. Further, Dr. Malloy stated that Shirley Nudelman had no difficulty in walking. Also, by her six-month visit in December, Dr. Malloy noted that there were no sensory abnormalities such as numbness or lack of sensation.

At trial, the jury was instructed on the issue of comparative negligence. The jury determined that Mrs. Nudelman was fifty percent (50%) comparatively negligent and that Kevin Gilbride was also fifty percent (50%) responsible. The jury then returned a verdict awarding Shirley Nudelman $5,000.00 for past, present, and future physical pain and suffering. The jury awarded zero damages for past, present, and future emotional distress, disfigurement, mental anguish, embarrassment, humiliation, and loss of enjoyment of life. The jury also awarded zero damages to Samuel Nudelman, the husband of Shirley Nudelman, for loss of consortium. The Honorable Chester T. Harhut molded the jury’s verdict of $5,000.00 to $2,500.00, to reflect the jury’s determination that Shirley Nudelman was fifty percent comparatively negligent.

The Nudelmans moved for a new trial, claiming the jury award was inadequate and against the weight of the evidence. The trial court denied the motion for a new trial, concluding that “[t]he $5,000 bears a reasonable relation to the proven damages.” The Nudelmans also asserted that the jury finding of comparative negligence was without merit. The trial court denied the motion for a new trial. This appeal followed.

The Nudelmans raise the following issues for our review:

(1) Whether the jury award of damages in the amount of twenty-five hundred ($2,500) dollars was manifestly against the weight of the evidence, and failed to justly compensate the plaintiffs for the injuries sustained as a proximate result of the defendant’s negligence, considering the uncontradicted medical evidence presented at trial?
(2) Whether the jury award of twenty-five hundred ($2,500) dollars in damages was contrary to the charge of the court and manifestly against the weight of the evidence?
(3) Whether the jury award of zero damages with regard to the loss of consortium claim by Samuel Nudelman was grossly inadequate and manifestly against the weight of the evidence proffered at trial?

The decision to grant or deny a new trial, because of inadequacy of the verdict, is a decision particularly -within the discretion of the trial court, and will not be overturned on appeal unless the trial court clearly and palpably abused its discretion or erred as a matter of law. Stevenson v. General Motors Corp., 513 Pa. 411, 521 A.2d 413 (1987); see also Botek v. Mine Safety Appliance Corp., 531 Pa. 160, 611 A.2d 1174 (1992); Leslie v. Pennco Inc., 323 Pa.Super. 23, 470 A.2d 110 (1983); Bortner v. Gladfelter, 302 Pa.Super. 492, 448 A.2d 1386 (1982). Further, a new trial should not be granted because of a mere conflict in testimony, or because the trial judge on the same facts would have arrived at a different conclusion. A new trial should be awarded when a jury’s verdict is so contrary to the evidence as to shock one’s sense of justice, and the award of a new trial is imperative so that right may be given another opportunity to prevail. Thompson v. City of Philadelphia, 507 Pa. 592, 597-98, 493 A.2d 669, 672 (1985); Giovanetti v. Johns-Manville Corp., 372 Pa.Super. 431, 439-40, 539 A.2d 871, 875 (1988); S.N.T. Industries, Inc. v. Geanopulos, 363 Pa.Super. 97, 104, 525 A.2d 736, 740 (1987).

As a rule, a verdict in an action for a personal tort may be set aside as inadequate when, and only when, it is so inadequate as to. indicate passion, prejudice, partiality, or corruption, or where the jury disregarded the instructions of the court, or in some instances, where there was a vital misapprehension or mistake on the part of the jury, or where it clearly appears from the uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff, or, according to some of the cases, where, otherwise, there has been an evident failure of justice to the plaintiff. Generally, a verdict will not be disturbed merely on account of the smallness of the damages awarded or because the reviewing court would have awarded more.

22 Am.Jur.2d, Damages, § 1029 (1988). See also Bortner v. Gladfelter, 302 Pa.Super. 492, 448 A.2d 1386 (1982); Mueller v. Brandon, 282 Pa.Super. 37, 39-40, 422 A.2d 664, 665 (1980); Morris v. Peckyno, 202 Pa.Super. 490, 492, 198 A.2d 396, 397 (1964).

As noted by the Pennsylvania Supreme Court in Elza v. Chovan, 396 Pa. 112, 152 A.2d 238 (1959):

It is the province of the jury to assess the worth of the testimony and to accept or reject the estimates given by witnesses. If the verdict bears a reasonable resemblance to the proven damages, it is not the function of the court to substitute its judgment for the jury’s.

Id. at 115, 152 A.2d at 240.

“Where the trial court grants a new trial on the ground of inadequacy the appellate courts will not interfere in the absence of a gross abuse of discretion.... When the trial court refuses relief against an allegedly inadequate verdict, the appellate court will exercise even greater caution in reviewing its action.” Mueller v. Brandon, 282 Pa.Super. 37, 41, 422 A.2d 664, 666 (1980) (emphasis in original) (quoting Paustenbaugh v. Ward Baking Co., 374 Pa. 418, 420-421, 97 A.2d 816, 818 (1953)).

This narrow standard of review stems from the nature of the entire judicial process. The jury and trial judge are clearly in the best position to evaluate the evidence. They have the opportunity to look into the eyes of the litigants, and evaluate the veracity of the witnesses’ statements. They also have the benefit of viewing the photographic record, and viewing the damage done to victims presented at the time of trial. Further, the reviewing court has no way of knowing how or why a jury reached their verdict in a given case, the presence of passion, partiality, or corruption on the part of the jury, or whether the jury disregarded instructions, acted under misapprehension or mistake. Mueller, 282 Pa.Super. at 39-40, 422 A.2d at 665. The reviewing court must look at the entire record to see if “the injustice of the verdict stand[s] forth like a beacon.” Elza, 396 Pa. at 118, 152 A.2d at 241, or, as Justice Musmanno eloquently stated, when “the figure of Justice totters on her pedestal.” Lupi v. Keenan, 396 Pa. 6, 16, 151 A.2d 447, 453 (1959) (Musmanno, J., dissenting).

Id. at 15-16, 151 A.2d at 452.

Generally, victims are entitled to be compensated for all of their losses caused by negligence of another. However, not every injury results in compensable pain. Boggavarapu v. Ponist, 518 Pa. 162, 166-67, 542 A.2d 516, 518 (1988); Hawley v. Donahoo, 416 Pa.Super. 469, 470-71, 611 A.2d 311, 312 (1992). In Boggavarapu, the Pennsylvania Supreme Court stated that injuries which are obviously accompanied by pain include a broken bone, stretched muscle, twist of skeletal system, injury to nerve, organ, or function, and all consequences of medical science and common experience as sources of pain and suffering. Boggavarapu, 518 Pa. at 162, 542 A.2d at 518. But the jury, having seen and heard the plaintiff, her doctor, and her other witnesses is “not required to accept everything or anything the plaintiff and her doctor [or other witnesses] said, even if their testimony was uncontradicted.” Bronchak v. Rebman, 263 Pa.Super. 136, 140-41, 397 A.2d 438, 440 (1979).

In the instant case, the Nudelmans contend that the jury award was inadequate and against the weight of the medical evidence. We disagree.

In Karcesky v. Laria, 382 Pa. 227, 114 A.2d 150 (1955), the Pennsylvania Supreme Court awarded $5,000.00 to two pedestrians struck by an automobile. One pedestrian spent seventeen days in the hospital with a fractured left clavicle and numerous contusions. The other pedestrian spent seventy-five days in the hospital for fractured teeth, sacrum, pelvis, and left fibula. The Pennsylvania Supreme Court denied the pedestrians’ motion for a new trial. The court found the verdict to be adequate as a compromise verdict based upon conflicting testimony on negligence.

In Bronchak, supra, this court, found the verdict of $63.30 did not warrant a new trial when the plaintiff’s vehicle was struck by another vehicle. This court did recognize that the verdict was low, but concluded that since evidence of a preexisting condition of calcium deposits and cervical arthritis was presented at trial, the jury could reasonably conclude that these pre-existing injuries were more responsible for the plaintiff’s neck pain than the accident. Thus, this court denied a motion for a new trial.

Not all jury verdicts, however, are upheld on appeal. In Deitrick v. Karnes, 329 Pa.Super. 372, 478 A.2d 835 (1984), for example, this court found that damages awarded to a plaintiff were inadequate. The jury awarded the plaintiffs, Robert and Jane Deitrick, $500.00 for pain, suffering, and lost wages, while Jane Deitrick was awarded zero damages for loss of consortium. The jury found the plaintiff 50% negligent. Robert Deitrick suffered a fractured vertebra in a boating accident. He was required to stay in bed for lengthy periods of each day, for three months. Once the plaintiff returned to work, he could only work on a limited schedule because of the pain. Further, he was given prescriptions for muscle relaxarás and fitted with a corset. In Mueller, supra, the plaintiff was involved in an automobile accident. She was thrown against the inside windshield of a car, and was rendered unconscious. The plaintiff spent three days in the hospital and was diagnosed with a fractured ankle, cerebral concussion, and contusions of the knees. Id. 282 Pa. Super. at 39-40, 422 A.2d at 665. The plaintiff received a nonwalking cast to the left leg. Half of her left eyebrow was gouged out, which resulted in a permanent scar above the left eye. The plaintiff also underwent surgery for a fractured nose which she received in the accident. There was no mention of pre-existing conditions of any kind. Also, liability was not in dispute. In this case we concluded that since the appellant’s pain was not caused by pre-existing injuries, liability was conceded, and the evidence of injury was objective and uncontradicted, an award for $663.00 in damages was inadequate.

In the instant case, Shirley Nudelman had osteoarthritis in both knees prior to the accident. The issue of liability was hotly contested, as evidenced by the jury’s 50% comparative negligence determination. Shirley Nudelman’s injuries were a combination of objective and subjective injuries. She received a fractured toe, damage to the saphenous nerve in her left leg and left knee, an indentation in her skin on the inside of her left knee, and torn cartilage in her left knee. The fractured toe healed fully. The damage to the saphenous nerve and the indented patch of skin will be permanent injuries, as well as the torn cartilage in her left knee. She did not stay in the hospital overnight as a direct result of the accident. Only after receiving medication, which caused her to have pancreatitis and ulcers, did she have to stay in the hospital for three days. She did not have surgery nor did she receive a cast. She also did not receive crutches, a walker, or any other device to aid her in walking. Further, at no time was Mrs. Nudelman restricted from doing activities of any kind by the hospital staff, or her own doctors. The combination of the pre-existing condition of osteoarthritis, the fact that liability was hotly contested, and the type of injuries involved in the instant case more closely matches those factors found in Bronchak and Karcesky, where the courts denied a motion for a new trial.

In Bortner v. Gladfelter, 302 Pa.Super. 492, 448 A.2d 1386 (1982), this court set forth five considerations to determine whether a verdict should be set aside as inadequate.

(1) the verdict awarded in case indicates passion prejudice, partiality, or corruption on the part of the jury, or

(2) the verdict reveals that the jury either disregarded or misapprehended the instructions by the court, or

(3) the verdict awarded bears no reasonable relation to the losses sustained by the plaintiff, or

(4) the verdict evidenced a failure of justice to the plaintiff, or

(5) the verdict is so inadequate that it should not be permitted to stand.

Id. at 496, 448 A.2d at 1389.

After a thorough review of the record, this court finds no evidence that the jury was influenced by passion, prejudice, partiality, or corruption in reaching their verdict. By analyzing the instructions of the trial court, it is clear that the jury neither disregarded nor misapprehended the instructions of the court. The jury first found that the plaintiff, Shirley Nudelman, and the defendant, Kevin Gilbride, were both fifty percent comparatively negligent. The judge then properly instructed the jury to award damages to Shirley and Samuel Nudelman without factoring in the comparative negligence of the plaintiff. The jury followed the judge’s instructions, and awarded to Shirley Nudelman $5,000.00 for past, present, and future pain and suffering. The trial judge found that this verdict was reasonable in relation to the proven damages. We also agree that this verdict for $5,000.00 for past, present, and future pain adequately reflected the damages proven by the plaintiffs. This verdict does not evidence a failure of justice to the plaintiff, nor is the verdict so inadequate that it should not stand.

The Nudelman’s final issue states that the jury’s verdict was inadequate and against the weight of the evidence in regard to Samuel Nudelman’s loss of consortium. In determining whether the jury’s award was inadequate and against the weight of the evidence in the instant case, we look to the unique facts, and review the extent of the deprivation to Samuel Nudelman and the disruption to the Nudelman’s family life. Burns v. Pepsi-Cola Metropolitan Bottling, 353 Pa.Super. 571, 576-78, 510 A.2d 810, 813 (1986). The deprivation was calculated by the jury evaluating testimony regarding the aid, assistance, comfort, and society Shirley Nudelman provided to Samuel Nudelman prior to the accident.

This court addressed the issue of loss of consortium in Deitrick, supra. There, we found that the award of zero damages to the wife for loss of consortium was “shocking and inadequate.” Deitrick, 329 Pa.Super. at 380, 478 A.2d at 839. In reaching this conclusion, this court pointed to the fact that the wife was forced to sleep on the couch in the living room due to her husband’s continual moaning as a result of the pain from the accident. The husband was unable to provide his wife assistance at home, in the form of cooking, taking out the garbage, mowing the lawn, and moving heavy equipment at her gift shop. This court also focused on the fact that Deitrick’s wife worked long hours at her shop. “[Robert] Deitrick’s inability to perform these chores was particularly significant since Jane Deitrick owned a gift and craft shop which required her attention for long hours every day.” Id. at 380-81, 478 A.2d at 839. In Deitrick, this court concluded that if the evidence of damages was contradicted by the defense, then the jury was justified in determining the credibility of witnesses, and in returning nominal damages. Id. at 380-82, 478 A.2d at 839. This court found, however, that the damages were uncontradicted and awarded a new trial.

In the instant case, Samuel Nudelman testified that he was a retired carpet salesman at the time of the accident. He further testified that he had to clean the house, wash the floors, and drive his wife to doctors appointments. It was revealed on cross-examination that Samuel Nudelman had never done any housework in his thirty six years of marriage with Shirley, prior to the time of the accident. Samuel Nudelman also claimed that it was a burden to drive his wife to doctors appointments. He admitted however, that his wife did not drive prior to the accident. Shirley and Samuel Nudelman were not prevented from sleeping together as a result of the accident. Additionally, Samuel Nudelman claimed that he and his wife could not walk around the lake as many times after the accident as before the accident, and that she could not attend the theater with him. Dr. Malloy, the plaintiffs own witness, stated that Shirley Nudelman never appeared to have problems walking during doctors appointments, nor did she mention any ambulatory problems to him. Following the reasoning in Deitrick, since the damages to Samuel Nudelman were contradicted by the defendant, the jury was justified in evaluating the credibility of the witnesses and awarding nominal damages. Damages for loss of consortium have no market value, and the amount awarded for loss of consortium is left to the sound judgment and common sense of the jury. Mueller, 282 Pa.Super. at 41-43, 422 A.2d at 666. In the instant case, this court recognizes that the jury used sound judgment and common sense in considering Samuel Nudelman’s claim for loss of consortium.

We are not shocked by the jury’s verdict nor are we shocked by the trial court’s refusal to grant a new trial. After analyzing the entire record, the injustice of the verdict does not “stand forth like a beacon.” Elza, supra. Therefore, we affirm the trial court’s denial of a motion for a new trial.

Judgment Affirmed.

      . In the absence of entry of judgment on a verdict, "we have repeatedly advised the profession that an order refusing a new trial is interlocutory and unappealable,” and that such an appeal should not be entertained until a final judgment is entered. Dennis v. Smith, 288 Pa.Super. 185, 186, 431 A.2d 350, 351 (1981); see Pa.R.A.P. 301. Here, the Nudelmans filed their notice of appeal on December 17, 1993. Pursuant to a per curiam order of this court, final judgment in this matter was entered on July 22, 1994. “A notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the day thereof.” Pa.R.A.P. 905(a). While the verdict in this case was reduced to judgment after the notice of appeal was filed, the appeal is properly before this court.


author: SAYLOR, Judge:

text:
    647 A.2d 240
    Margaret E. DRAWBAUGH, Appellee, v. Leon R. DRAWBAUGH, Appellant.
    Superior Court of Pennsylvania.
    Argued May 11, 1994.
    Filed Sept. 2, 1994.
    Richard H. Mylin, III, York, for appellant.
    Claudia DeArment, York, for appellee.
    Before WIEAND, SAYLOR and CERCONE, JJ.
   SAYLOR, Judge:

This is an appeal from the trial court’s order of November 16, 1993, directing Appellant, Leon R. Drawbaugh, to pay child support for his stepchildren, Joshua and Lynne Moore.

Leon Drawbaugh (Stepfather) and Margaret E. Drawbaugh (Mother) began residing together in 1982, and were married on December 6, 1986. Mother has two children from a previous marriage, Joshua Moore, born December 16, 1980, and Lynne Moore, born' January 21, 1982. Stepfather is the only father that the two children have known since 1983. Joshua has not seen his natural father since he was eight months old, and Lynne has apparently never seen her natural father. While the parties were married, Stepfather and Mother pooled their resources to provide food, clothing, shelter, and medical care for the children. Stepfather was also involved in the rearing of the children who referred to him as “dad.”

Mother has attempted to obtain support from the natural father, but her efforts at locating him and pursuing support have been unsuccessful. Adams County has continued to maintain an arrearage claim against the natural father for a number of years, but according to Mother, a charging order has not been in existence for some time. Stepfather encouraged Mother to pursue the child support action against the natural father and accompanied Mother to the domestic relations office in an effort to get the support order enforced. Although the diligence with which Mother pursued this support claim apparently diminished over time, Stepfather never told Mother to abandon efforts to enforce the support order against the natural father.

Mother filed for a divorce in November 1992 and moved out of the house with her two children in December 1992. Stepfather claims that Mother voluntarily departed from the marital residence, and that he was unaware of any conduct on his part which justified her withdrawal from the residence. The trial court agreed and denied Mother’s claim for spousal support.

Stepfather filed a petition for minimal visitation with the two children on May 3, 1993, since Mother stopped any and all contact between Stepfather and the children claiming that Stepfather had no legal rights to visitation. After the trial court entered an order granting Stepfather visitation with the children, Mother filed a claim for child support against Stepfather. On November 16, 1993, the trial court held a hearing after which it concluded that Stepfather had assumed the status of in loco parentis in regard to the two children and was thus responsible for their support. Accordingly, the court entered an order directing Stepfather to pay child support for Joshua and Lynne Moore at the rate of $89.00 per week plus $5.00 per week on account of arrears. It is from this determination that Stepfather appeals.

Our standard of review in considering a trial court’s decision in a child support action is clear:

A child support order will not be disturbed unless the trial court committed an abuse of discretion. An abuse of discretion is more than an error of judgment. It must be a misapplication of the law or an unreasonable exercise of judgment.

DeNomme v. DeNomme, 375 Pa.Super. 212, 218, 544 A.2d 63, 66 (1988), citing Scheidemantle v. Senka, 371 Pa.Super. 500, 538 A.2d 552 (1988).

Stepfather presents but one issue on appeal: Whether a stepfather has a legal obligation to support stepchildren even though the natural father’s rights have not been terminated by the court and the stepfather has never encouraged the natural mother not to collect child support from the natural father or prevented her from doing so.

We must therefore examine the circumstances, if any, under which a stepfather may be held liable to support the children of his wife’s prior marriage. We begin with the general rule that a stepparent has no legal obligation to support his or her stepchild. DeNomme v. DeNomme, 375 Pa.Super. 212, 544 A.2d 63 (1988); Klein v. Sarubin, 324 Pa.Super. 363, 471 A.2d 881 (1984); Commonwealth ex. rel. Hagerty v. Eyster, 286 Pa.Super. 562, 429 A.2d 665 (1981). However, it is Appellee’s theory, with which the trial court agreed, that Stepfather stands in loco parentis to wife’s children and, as a consequence, has a duty to support them.

It is true that a stepfather who lives with his wife and her natural children may assume the relationship of in loco parentis. Spells v. Spells, 250 Pa.Super. 168, 378 A.2d 879 (1977). Such status “embodies two ideas: first, the assumption of parental status, and second, the discharge of parental duties” and the “[ejxistence of such a relationship is largely dependent upon the intention of the person assuming the parental status.” Klein v. Sarubin, 324 Pa.Super. at 367-368, 471 A.2d at 883. Whether or not such status exists is a “question of fact to be determined by an evaluation of all of the circumstances, rather than a matter of strict legal definition.” D’Auria v. Liposky, 197 Pa.Super. 271, 279, 177 A.2d 133, 136 (1962).

In Klein v. Sarubin, 324 Pa.Super. 363, 471 A.2d 881 (1984), the Superior Court held that the trial court did not error in refusing to allow the natural father to fully develop his theory in a support proceeding that a second husband has assumed the status of in loco parentis and was thus obligated to support his stepchildren. The court did state that “in particular instances, a support obligation has been imposed as a consequence [of assuming in loco parentis status],” and cited Commonwealth ex. rel. Bulson v. Bulson, 278 Pa.Super. 6, 419 A.2d 1327 (1980) and Commonwealth v. Cameron, 197 Pa.Super. 403, 179 A.2d 270 (1962) for this proposition. Klein v. Sarubin, 324 Pa.Super. at 368, 471 A.2d at 883. Bulson, however, was a spousal support case and not a child support case; although there is dicta in Bulson to support wife’s position, Bulson held only that it was not an abuse of discretion for the trial court, in calculating a spousal support award against husband, to take into account the cost to the wife of supporting her child from a prior marriage since husband knew when he married her that she had this responsibility. And in Cameron, the stepfather had joined with the mother in executing a written release in favor of the natural father releasing him from all liability for child support and contractually undertaking to support the child of the wife’s former marriage. See, also, Roberts v. Furst, 385 Pa.Super. 530, 561 A.2d 802 (1989) (a written agreement between mother, her second husband, and the natural father to release the natural father from his child support obligation was enforceable).

In Commonwealth ex. rel. McNutt v. McNutt, 344 Pa.Super. 321, 496 A.2d 816 (1985), appellant was ordered to pay support for the natural daughter of his former wife. At the time of the parties’ marriage, the child was two months old and the whereabouts of the natural father were unknown. The appellant never adopted his wife’s daughter. During their marriage, the parties had a child of their own and after their divorce, the appellant continued to visit with both children. The trial court found that the appellant had acted in loco parentis toward his former stepdaughter and was therefore liable for her support. In reversing the support order, the Superior Court held as follows:

The trial court found that the Appellant acted in loco parentis both before and after the dissolution of the marriage and this is a finding of fact we will not disturb. We do not agree however that the Appellant’s past and continued love and devotion to his former stepchild carry with it the duty to financially support [the stepchild]. This would be carrying the common law concept of in loco parentis further than we are willing to go. There is authority in other jurisdictions for the proposition that a stepparent who stands in loco parentis may be held liable for the support of a child during the marriage, (citations omitted). However, this obligation does not survive the dissolution of the marriage of the child’s natural parent and stepparent. The general rule is that no legal duty rests upon the stepparent to support after the termination of the marriage, (citations omitted).
If we were to hold that a stepparent acting in loco parentis would be held liable for support even after the dissolution of the marriage then all persons who gratuitously assume parental duties for a time could be held legally responsible for a child’s support.... These acts of generosity should not be discouraged by creating a law which would require anyone who begins such a relationship to continue financial support until the child is eighteen years old. (emphasis added)
... [w]e cannot extend the law so far as to hold a former stepparent financially responsible for a child whom he loves and cares for but has not adopted.

Finally, in DeNomme v. DeNomme, 375 Pa.Super. 212, 544 A.2d 63 (1988), the Superior Court reiterated the general rule that a stepparent has no legal obligation to support stepchildren. It noted that an exception has been found where the stepparent assumes in loco parentis status, citing Spells v. Spells, 250 Pa.Super. 168, 378 A.2d 879 (1977). Spells, however, did not involve child support and held only that a stepfather, found to be in loco parentis with his stepchildren, should be permitted to visit with his stepchildren after the stepfather and the childrens’ mother had separated. The Court in DeNomme also noted that the New Jersey Supreme Court has created an equitable estoppel exception to this general rule where the stepparent’s actions have caused the spouse to-abandon her support claim against the natural parent, resulting in such claim being barred by law, Miller v. Miller, 97 N.J. 154, 478 A.2d 351 (1984), but found no estoppel established on the record. In any event, our Supreme Court has not adopted this equitable estoppel exception as the law in this Commonwealth.

Thus it appears that no appellate case in Pennsylvania has imposed a duty of support on a stepparent, even one who stands in loco parentis to his stepchildren, following the dissolution of the parties’ marriage, absent a written agreement to assume such obligation. Instantly, although the parties’ divorce was not final at the time the trial court entered the support order, Wife had filed for a divorce, left the marital home, and was living with her boyfriend; the marriage was therefore for all intents and purposes over.

Here, as in McNutt, Stepfather should not be penalized for having provided both financial and emotional support to his stepchildren for the past ten years. Although Stepfather sought visitation rights, to which he is entitled on this record, Spells v. Spells, supra., and clearly loves and cares about his stepchildren, it was an abuse of discretion to hold him legally responsible for their support.

Accordingly, the order of the trial court directing Stepfather to pay support for his two stepchildren is reversed.

      . In its Rule 1925 statement, the trial court stated that "[t]he Plaintiff has, in recent years, abandoned efforts to pursue the natural father based upon her reliance upon the Defendant assuming an increasing role in the support and discharge of parental duties and responsibilities towards her children." However, Wife was at all times free to pursue a support action against the natural father, and the eventual unavailability of the natural father was not due in any way to the actions of Stepfather. In fact, the trial court found that the Stepfather “has apparently encouraged [Wife] at times to pursue the child support action against the natural father and taken her to the domestic relations office for that purpose, however, without any success.” (Trial Court Opinion of 11/16/93, p. 4).


author: OLSZEWSKI, Judge: McEWEN, Judge, dissenting:

text:
    647 A.2d 243
    In re ESTATE OF Sarah W. HESKE, Deceased. Appeal of Maryanne ERHLICH.
    Superior Court of Pennsylvania.
    Argued May 11, 1994.
    Filed Sept. 6, 1994.

      Robert I. Tuteur, Philadelphia, for appellant.
    James L. Hollinger, Norristown, for Theodore Heske, Jr., participating party.
    Before McEWEN, OLSZEWSKI and DEL SOLE, JJ.
   OLSZEWSKI, Judge:

Maryanne Erhlich is the daughter of Sarah Heske, deceased, and residuary legatee of Sarah’s will. Theodore Heske, Sarah’s son, is also a residuary legatee of the will, but, more importantly, is the joint owner of four bank accounts established by Sarah during her life. Sarah opened the accounts exclusively with her money in 1989. In May 1991, Sarah drafted a will making no mention of the accounts and shortly thereafter executed a written document which stated that

the several certificates of deposit, including but not limited to accounts in the Meridian Bank, Continental Bank and Fidelity Bank, are owned solely by me, and that I have added my son Theodore’s name to said accounts for convenience only and not as gifts inter vivos. It is contemplated that the funds in these accounts may be rolled over or reinvested at their maturities and that it shall be my continuing purpose and intent to retain sole ownership therein.

R.R. at 4a. The Orphan’s Court en banc decided that Maryanne failed to overcome the presumption that, unless established otherwise by clear and convincing evidence, contents of joint accounts are intended to pass to a surviving owner. 20 Pa.C.S.A. § 6304. It thus ordered that the funds in the accounts be awarded to Theodore and, as it affects this case, excluded them from the estate’s account.

Section 6304 of the Fiduciary Code is very clear:

(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.

“Clear and convincing evidence” is the highest burden in our civil law and requires that the fact-fínder be able to “come to clear conviction, without hesitancy, of the truth of the precise fact in issue.” Lessner v. Rubinson, 527 Pa. 393, 400, 592 A.2d 678, 681 (1991).

Here, the case was submitted before the Orphan’s Court on stipulated facts and the only evidence regarding Sarah’s intent at the time she formed the accounts was the declaration she signed nearly two years after opening them. While we agree that this evidence is probative of Sarah’s intent at the time the accounts were created, it is hardly clear and convincing. Sarah’s attorney would have testified that “he advised the decedent that he had some reservations about the legal effectiveness of the declaration of intent.” See Parties’ Stipulation, ¶ 10; R.R. at 19a. Thus, the only evidence which would rebut the presumption that Sarah intended Theodore to own the accounts if he survived her is a document which could support the conclusion that Sarah had a change of heart just as easily as it could support a finding that she intended a convenience account from the start. Since our function on appeal from an Orphan’s Court matter is only to determine whether the court’s findings are adequately supported by the record, Estate of Shahan, 429 Pa.Super. 91, 631 A.2d 1298 (1993), we cannot find any error in the court en banc’s holding.

Maryanne contends vehemently that the trial court committed an error of law by not considering the declaration at all. She contends, and we agree, that evidence procured after the account’s creation is still probative of intent at the time of creation. Estate of Dembiec, 321 Pa.Super. 515, 468 A.2d 1107 (1983). The court en banc wrote in its final decree:

While Sarah W. Heske failed to evidence a “different intent” at the time she created the accounts in question, she executed subsequently a “Declaration of Intent” wherein she expressed her desire that the funds in the accounts in question be paid equally as between her daughter, Maryanne Erhlich, and her son, Theodore Heske, Jr. While the “equities” favor distribution in accordance with Sarah W. Heske’s “Declaration of Intent,” the clear language of the Statute precludes such a distribution.

Final Decree at 2; R.R. at 46a. After reviewing the court en banc’s decree, it is reasonably clear that it actually considered the “Declaration of Intent,” but simply found that it tended to prove Sarah’s intention at the time she wrote the declaration, and not at the time she created the accounts. The court specifically noted that there was no positive evidence establishing Sarah’s intent at the time she created the accounts and that, instead of drafting the Declaration of Intent, Sarah could changed ownership of the accounts. We cannot, therefore, fault the court below for being suspicious of Sarah’s belated efforts. We agree with the court en banc that the Declaration of Intent, standing alone, is insufficient to rebut the statutory presumption.

Finally, Maryanne argues that since the accounts were rolled over in 1992, the Declaration of Intent is effective with regard to the “new” investments. We disagree. First, the parties never stipulated that the accounts were rolled over and this fact was therefore not before the court. More importantly, however, the presumption requires a party to prove her intent at the time of the accounts’ “creation.” There is no dispute in this case that the accounts in question were created well before the “Declaration of Intent” was signed, and we are aware of no law which elevates a decision to continue an investment to one which creates a new account. Indeed, the presumption’s efficacy lies in the “assumption that most persons who use joint accounts want the survivor or survivors to have all balances remaining at death.” 20 Pa.C.S.A. § 6304, Official Comment. Thus, the intent under scrutiny should be the one concomitant to the initial decision to name a joint owner — not the financial decision to remain committed to the investment.

Order affirmed.

McEWEN, J., files a dissenting opinion.

McEWEN, Judge, dissenting:

While the statement of the majority provides a thorough analysis of and persuasive expression upon the issue presented, I am obliged to dissent for I agree with the distinguished Chancellor, Judge Alfred L. Taxis, Jr., that the accounts established by the decedent were merely convenience accounts and that the accounts should, therefore, be included in the distributable estate. The Chancellor specifically found that “the Declaration of Intent is in fact clear and convincing evidence that these accounts were convenience accounts and therefore they are and should be put into Sarah Heske’s estate for distribution under her Will”. I too am of the mind that there was clear and convincing evidence that the decedent never intended, at the time of the creation of the accounts or at any time thereafter, to make a gift of the accounts to appellee.

As a matter of law, I cannot agree -with the conclusion of the en banc trial court that the letter of intent executed by the decedent, after consultation with counsel, was “insufficient” to establish her intent at the time of the creation of the accounts. Neither the statute nor case law compels such a conclusion. The purpose of Chapter 63 of the Probate Estate and Fiduciaries Code, 20 Pa.C.S. §§ 6301 et seq., which favors the surviving party over the estate of the decedent, was the elimination of uncertainty where a joint account existed. In re Estate of Meyers, 434 Pa.Super. 165, 171, 642 A.2d 525, 528 (1994). While the statute prescribes that there must be “clear and convincing evidence” (20 P.S. § 6304) of intent to create a convenience account, the purpose of the statute was assuredly not to defeat the well-settled and clearly expressed intent of the decedent.

Clear and convincing evidence is evidence which:

is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.

Matter of Chiovero, [524 Pa. 181, 187, 570 A.2d 57, 60 (1990) ]; Matter of Sylvester, [521 Pa. 300, 304, 555 A.2d 1202, 1203-04 (1989)]; Matter of Braig, [520 Pa. 409, 41314, 554 A.2d 493, 495 (1989) ]; JIRB v. Snyder, [514 Pa. 142, 151-53, 523 A.2d 294, 299 (1987) ].

sfs * * * * *

The effects of conflicts in the evidence or corroboration of particular evidence will vary depending upon the credibility of the individuals involved, the degree of conflict or corroboration, and the importance of the point with respect to which the conflict or corroboration occurs. The existence of a conflict in the evidence with regard to a material fact, by itself, may preclude a finding that a charge has been sustained by clear and convincing evidence. See e.g. Matter of Johnson, [483 Pa. 227, 395 A.2d 1319 (1978) ]. On the other hand, there is no mechanistic corroboration requirement; rather, a charge could be sustained on the basis of the uncorroborated testimony of a single credible witness in an appropriate case. Compare In re McDonough, 296 N.W.2d 648, 692 (Minn.1980) (“no mechanistic corroboration requirement is necessary ... in fact, depending on its source, uncorroborated evidence may be more reliable than that remotely corroborated by a dubious source”)....

Matter of Larsen, 532 Pa. 326, 333, 616 A.2d 529, 532 (1992), cert. denied, — U.S.-, 114 S.Ct. 65, 126 L.Ed.2d 34 (1993) (emphasis in original). See, e.g.: Commonwealth v. Sam, 535 Pa. 350, 635 A.2d 603 (1993), cert. denied, — U.S.-, 114 S.Ct. 2123, 128 L.Ed.2d 678 (1994) (defendant asserting incompetency to stand trial has the burden of establishing his or her incompetency by clear and convincing evidence); In re E.M., 533 Pa. 115, 620 A.2d 481 (1993) (existence of grounds necessary to terminate parental rights must be proven by clear and convincing evidence); Appeal of Gaus, 531 Pa. 133, 611 A.2d 696 (1992) (one who sets up the existence of a public highway has the burden of showing acceptance of the dedication by clear and convincing evidence); Moser v. DeSetta, 527 Pa. 157, 589 A.2d 679 (1991). I believe that appellant presented, under the facts of the instant case, the clear and convincing evidence necessary to overcome the statutory presumption of survivor-ship rights to the account in appellee.

Moreover, even if the statutory presumption operated, at the time that the decedent opened the accounts in October 1989, to impose a survivorship status upon the accounts, the statute does not declare that the presumption becomes permanent and beyond revocation. Appellee contended in the exceptions he filed to the decree nisi of the chancellor that the declaration of intent executed by the decedent on June 25, 1991, with the advice of counsel “could not apply to remove the survivorship rights of exceptant unless changes to the accounts themselves were made”. The court en banc ruled, in response to the exceptions filed by appellee, that:

While the “equities” favor distribution in accordance with Sarah W. Heske’s “Declaration of Intent”, the clear language of the Statute precludes such a distribution. Therefore, the critical time, for purposes of the Statute, is the “time of creation”. Had Sarah W. Heske desired to terminate Theodore Heske, Jr.’s survivorship rights to these accounts, Mrs. Heske should have pursued other options. She should have appeared at the bank(s), in person, to change the ownership, or if unable to do so, either by reason of physical disability or otherwise, she should have arranged for a bank official to come to her home to meet with her to change the ownership.

I disagree for, in my view, the decedent, once the accounts were opened, was free, as sole owner of the funds in the accounts, to revoke the survivorship status of the accounts by — inter alia, but only inter alia — changing the survivorship status of the record of the accounts at the banking institution — or by other clear expression of intent. I am of the mind that the decedent proceeded to just such a clear expression — a re-expression, as I see it — of intent by execution of a document, prepared by counsel pursuant to earlier delivered instructions, as a complement to a will which in itself was an implicit declaration that the accounts were but convenience accounts.

The Chancellor concluded that the Declaration of Intent established that the accounts were convenience accounts. The trial court en banc opined that the “equities” favor distribution in accordance with the “Declaration of Intent”. That sound instinct of the trial court en banc triggers recollection of observations expressed in dissent a decade ago:

First, it is a principle of Biblical authenticity that fairness is the standard by which human affairs should be conducted and to which disputes should be addressed. Second, it is undisputed that a statute ... is but a codification of the measure of fairness or equity to be applied in particular situations or to specific events. I, therefore, would urge that when the statutory prescription for equity produces grave injustice, it must bow to pervading fairness. In other words, while Themis, the goddess of justice, dearly loves all of her children, she would be quick to concede that equity demands the most care and must, therefore, receive the most protection.

Wilkins v. Heebner, 331 Pa.Super. 491, 500, 480 A.2d 1141, 1146 (1984) (McEwen, J., dissenting). Thus, it is that I conclude that the Declaration of Intent was clear and convincing evidence of decedent’s intent to create convenience accounts, or, at least, ample and abundant evidence of revocation and thereby rebuttal of any statutory presumption to the contrary. Thus, I would include the accounts in the distributable estate.