author: WALTER, P.J.,

text:
    Gingrich Estate

      William M. Brandt, for estate.

      Jeffrey S. Suavely, for respondent.
    December 16, 1990
   WALTER, P.J.,

On July 10, 1990, the Pennsylvania Department of Revenue, Board of Appeals entered a decision and order denying the protest of the estate of Lloyd F. Gingrich to the department’s appraisement and assessment. Before the court is the estate’s appeal of the board’s decision.

Lloyd F. Gingrich died on May 4, 1988. The estate filed an inheritance tax return with the Department of Revenue. In its notice dated December 11, 1989, the department disallowed one-half of the debt deduction claimed by the estate on the tax return. The estate filed a protest of the disallowance, dated February 9, 1990, with the board, which upheld the Department of Revenue’s action. A hearing before the court on the estate’s appeal was held on October 3, 1990 and the matter is now ripe for disposition.

The events of October 14, 1986 are relevant to this action: On that day, the decedent acquired 2.46 acres of real property located in South Londonderry Township, Lebanon County. The deed conveyed to decedent shows he paid $41,000 to Jacob and Dorothy Brandt for the property.

To make this purchase possible, the decedent and his wife, Linda D. Gingrich (now Binkley), signed a construction loan agreement, a mortgage and a bond and warrant in the amount of $340,000. Each of these contracts, also executed on October 14, 1986, expressly provided for the joint and several benefit and liability of Mr. and Mrs. Gingrich and their successors.

The funds resulting from these agreements were used by the decedent to develop a storage business and the proceeds were placed in his own account. The mortgage, however, was on the property acquired by decedent in his name only as well as other properties in the name of both husband and wife. Upon decedent’s death, his widow inherited all the real estate under the mortgage.

The sole issue here is whether the estate is entitled to deduct the total balance owed on the mortgage at the time of death ($167,971.48) or only one-half of this amount as the Department of Revenue asserts.

We turn first to the Inheritance and Estate Tax Act, section 1729(d), which provides in pertinent part:

“[T]he decedent’s liability (net of all collectible contribution) on a joint obligation is deductible whether or not payment of the obligation is secured by entireties property or property which passes to another under the right of survivorship.”

The crux of the estate’s argument is that the wife received no benefit from the loan proceeds and therefore no right of contribution against her existed and the entire debt remaining should be deductible. The estate cites no case law to support its position.

Unfortunately for appellant estate we find our Supreme Court’s ruling in In re Kershaw’s Estate, 352 Pa. 205, 42 A.2d 538 (1945), to be controlling here. The Kershaw decision held that where a husband and wife are jointly and severally liable for a debt, “no matter how secured,” the estate may deduct one-half of the debt. Kershaw, supra.

The rationale of Kershaw is relevant for the determination of the instant question:

“Prima facie the payment of an indebtedness by one of two or more joint obligors is for the benefit of all, and the one making the payment is therefore entitled to contribution from the others. Hence, if collection on this bond were made from the estate, a right or contribution would automatically arise against the widow; if collection were made from the widow, she would have a similar right of contribution against the estate; therefore the ultimate liability of the estate is only for one-half of the indebtedness. Or, viewing it from another angle, the right of the estate to enforce contribution may be regarded as a taxable asset which offsets, to the extent of one-half, the full deduction to which the estate would otherwise be entitled.”

The Kershaw rules have been extended to other joint debts. In re Kritz Estate, 387 Pa. 223, 127 A.2d 720 (1956); In re Dowler Estate, 368 Pa. 519, 84 A.2d 209 (1951); In re Van Eman Estate, 21 D.&C. 3d 81 (1981). Despite the estate’s attempts to paint Mrs. Gingrich as a mere accommodation party, we must reject the claim for full deduction. The mortgage, bond and warrant signed by her clearly, expressly and without qualification make her jointly liable for the debt. 13 Pa.C.S. §3118(5). We must deny the appeal.

ORDER OF COURT

And now, December 6, 1990, for the reasons set forth in the accompanying opinion, the appeal from the Pennsylvania Department of Revenue, Board of Appeals decision of July 10, 1990, by the estate of Lloyd F. Gingrich, is respectfully denied.

       72 Pa.C.S. §1701 et. seq.


source: Caselaw Access Project

author: HOFFER, J.,

license: Public Domain

text:
    Daniels v. DePaul

      Alberto Roldan, for plaintiffs.

      Rebecca N. Tortorici, for defendants.
    August 21, 1990
   HOFFER, J.,

Plaintiffs were tenants at the Carlwynne Manor apartments, Car-lisle, Pennsylvania, through March 1986. During plaintiffs’ tenancy defendant Lauri McDermond was resident manager for a time, and defendant Steve Harper was maintenance supervisor. Defendants Peter DePaul and Eugene DePaul (hereinafter De-Paul Realty Company) own Carlwynne Manor Apartments. Defendant Jeffrey Casper was allegedly a tenant at Carlwynne Manor during plaintiffs’ residence.

According to plaintiffs’ complaint, filed on February 5, 1987, two incidents occurred at the apartment complex on March 10, 1986 which involved harassment and discrimination towards plaintiffs. The incidents involved a verbal confrontation between plaintiffs and Jeffrey Casper, and a discriminatory remark written on the outer wall of plaintiffs’ apartment. Plaintiffs alleged that Jeffrey Casper was responsible for the writing. Defendants Steve Harper, Lauri McDermond and DePaul Realty Company allegedly exacerbated the situation by neglecting to rectify it in some way.

Defendants entered numerous objections to plaintiffs’ complaint, which were argued before this court on June 3, 1987. A final order disposing of these objections was not entered until May 27, 1988, due to procedural difficulties.

Defendants filed an answer with a new matter to plaintiffs’ complaint on July 13, 1988. Shortly thereafter, defendants filed a set of interrogatories and a request for the production of documents on July 20, 1988. Plaintiffs failed to respond to these discovery requests.

On October 26, 1988, defendants filed a motion to compel discovery in an attempt to elicit some response from plaintiffs. This motion went unchallenged by plaintiffs. Thereafter, this court entered an order on March 1, 1989, that plaintiffs comply with defendants’ discovery requests within 30 days. As of this date there has been no response from plaintiffs.

On March 1, 1990, defendants filed a motion for judgment of non pros. The motion was argued by counsel for defendants before this court on April 4, 1990, again with no participation by plaintiffs. Per our request, defendants filed an affidavit that plaintiffs were properly served with defendants’ motion and brief on April 10, 1990.

Plaintiffs have failed to respond to defendants’ discovery requests and have ignored this court’s order of March 1, 1989. Plaintiffs have failed to raise any objection, excuse or rationale for their failure to comply with our mandate or to diligently pursue this case. It is now this court’s duty to determine whether defendants’ motion for non pros should be granted.

DISCUSSION

The sanctions available for various discovery violations are set out in Pa.R.C.P. 4019. Section (c) of the rule provides possible sanctions which can be imposed for reasons set out in section (a) which delineates several discovery violations. Specifically:

“(a)(1) The court may, on motion, make an appropriate order if

“(i) a party fails to serve answers or objections to written interrogatories under Rule 4005; ...”

Section (c) then sets out sanctions which may be imposed:

“(c) The court, when acting under subdivision (a) of this rule, may make

“(1) an order that the matters regarding which the questions were asked, or the character or description of the thing or land, or ■ the contents of the paper, or any other designated fact shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

“(2) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing in evidence designated documents, things or testimony, or from introducing evidence of physical or mental condition;

“(3) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or entering a judgment of non pros or by default against the disobedient party or party advising the disobedience;

“(4) an order imposing punishment for contempt, except that a party may not be punished for contempt for a refusal to submit to a physical or mental examination under Rule 4010;

“(5) such order with regard to the failure to make discovery as is just.”

Defendants have moved specifically for a judgment of non pros pursuant to Pa.R.C.P. 4019(c)(3), or in the alternative, a dismissal of the complaint with prejudice pursuant to Rule 4019(c)(5), the “catch-all” provision. The imposition of specific sanctions for failure to obey a discovery order is largely within the discretion of the trial court. Feingold v. Philadelphia National Bank, 313 Pa. Super. 579, 460 A.2d 339 (1983); Brunetti v. SEPTA, 329 Pa. Super. 477, 478 A.2d 889 (1984).

Generally, in formulating an appropriate sanction order we must select a punishment which fits the offense. Id. at 482, 478 A.2d at 891. However, we are mandated to examine the issue of possible prejudice suffered by the moving party prior to issuing any order for sanctions by reason of failure to obey discovery orders. Id. at 482, 478 A.2d at 891 (1984). As was noted above, the gravamen of plaintiffs’ complaint involves an alleged incident of harassment occurring on or about March .10, 1986, while plaintiffs were tenants of Carlwynne Manor Apartments. Inhabitants of apartment complexes are often transient. By this time, defendants would have great difficulty contacting other residents who resided at Carlwynne Manor in March 1986. In some instances, it may be impossible for defendants to garner any information from neighboring tenants in order to prepare a defense. Therefore, it is apparent plaintiffs’ delay has prejudiced defendants.

A judgment of non pros is a sanction regarded as a severe penalty which should not be lightly entered. Verbalis v. Verbalis, 286 Pa. Super. 209, 211, 428 A.2d 646, 647 (1981). Bearing this in mind, we must consider the particular circumstances of the case at hand as well as whether any of the other available sanctions are more appropriate.

Plaintiffs have ignored our discovery order for over a year. There has been no activity in this case by plaintiffs since arguments on defendants’ preliminary objections were heard on June 3, 1987. Since that date defendants have argued a motion to compel discovery in October 1987, as well as their current motion for non pros, with no participation by plaintiffs.

We requested defendants provide us with an affidavit that plaintiffs were served a copy of defendants’ motion for non pros and brief. Defendants complied with our request. Plaintiffs must be quite aware of defendants’ activities during plaintiffs’ three-year hiatus. Using the Crimes Code provision that a requirement of willfulness is satisfied by acting knowingly (18 Pa.C.S. §302(g)) as a guideline, it is evident that plaintiffs have willfully disobeyed our discovery order.

Willfulness is not an essential condition precedent to the power to impose a sanction. Roman v. Pearlstein, 329 Pa. Super. 392, 399, 478 A.2d 845, 848 (1984). However, whether the failure to provide information represents a willful disregard of a court order is a factor to be considered in fashioning the severity of a sanction. Pride Contracting Inc. v. Biehn Construction Inc., 381 Pa. Super. 155, 159, 553 A.2d 82, 84 (1989).

Turning to consideration of other available sanctions, set out above, none are practicable in this situation. Plaintiffs have already ignored our order to compel discovery for over a year, and have offered no justification for this failure or objections to the order. Plaintiffs have failed to participate in this litigation for over two years; in so doing, plaintiffs ran a grave risk that sanctions, including a punishment for contempt or judgment of non pros, would be entered against them. Verbalis, supra.

Under the circumstances, a judgment of non pros pursuant to Pa.R.C.P. 4019(c)(3) is most appropriate. The purpose of Rule 4019 is to ensure compliance with proper orders of the court and adequate and prompt discovery of matters followed by the Rules of Civil Procedure. Feingold at 585, 460 A.2d at 343 (1983).

Plaintiffs, through their complete inattention to this litigation, leave us no choice but to grant defendants’ motion for non pros, as it is our duty to ensure prompt procedure within our courts. While this need must be balanced against the substantive rights of plaintiffs, the plaintiffs have offered no objections or rationale for their dilatory behavior. See Brunetti, supra. The circumstances are such that defendants’ motion for a judgment of non pros should be granted.

ORDER OF COURT

And now, August 21, 1990, defendants’ motion for judgment of non pros is granted.

      . While a dismissal of a complaint with prejudice is not a sanction specifically provided for by the rule, the “catch-all” provision of Pa.R.C.P. 4019(c)(5) has been interpreted to include dismissal of the complaint with prejudice. Pride Contracting Inc. v. Biehn Construction Inc., 381 Pa. Super. 155, 159, 553 A.2d 82, 83 (1989).

      . Defendants moved for dismissal of the complaint with prejudice as an alternative to a judgment of non pros. The option of dismissing a complaint has been recognized as “the defendant’s counterpart to a plaintiff’s default judgment . . . [and is] seldom, if ever, appropriate.” Feingold v. Philadelphia National Bank, 313 Pa. Super. 579, 584, 460 A.2d 339, 342 (1983). As we deem non pros appropriate, we need not discuss this option any further.


author: MILLER, P.J.,

text:
    Buckeye v. Parenti

      Michael Halliday, for plaintiffs.

      Gary A. Fabian, for defendants.
    December 31, 1990
   MILLER, P.J.,

In a suit by an employee against a third person, are the employer’s rules for the conduct of the enterprise admissible on the standard of care required by the employee under the particular circumstances in determining whether or not the employee was contri-butorily negligent?

BACKGROUND

Robert D. Buckeye was injured in an automobile accident that occurred when á PennDOT truck he was operating made a left-hand turn at or about the same time that Michael J. Parenti was approaching the truck from the rear and starting to pass it.

In the new matter which defendants included in their answer they alleged, inter alia, that Mr. Buckeye failed to comply with his employer’s rules and regulations as to stopping of PennDOT vehicles and working along roadways (Answer 27(f)).

Plaintiffs filed preliminary objections alleging, inter alia, that the allegation contained in paragraph 27(f) of defendants’ answer and new matter should be stricken as being impertinent and irrelevant.

DISCUSSION

Defendants maintain that in determining whether Mr. Buckeye was himself negligent we must determine if he acted as a reasonably prudent person under the circumstances then and there existing. Mr. Buckeye’s employer’s rules and regulations either create a standard of care or are part of a larger standard of care. In deciding how a reasonably prudent person would act under the circumstances, the circumstances in which Mr. Buckeye was operating included his employer’s work rules and regulations.

The specifics of the work rules and regulations are not important at this point. However, it is alleged that PennDOT operations manuals or standards regarding emergency repair of potholes require certain advance warnings, signs and notices.

In support of their argument defendants cite Norton v. Railway Express Agency Inc., 412 F.2d 112 (1969); Dallas V. F.M. Oxford Inc., 381 Pa. Super. 89, 552 A.2d 1109 (1989), alloc, den., 563 A.2d 498; and Walsh v. Miehle-Goss-Dexter Inc., 378 F.2d 409 (1967). Those cases are not applicable here.

In Norton, supra, the plaintiff was injured when he was taking a barrel down a narrow stairway with a dolly, with the help of an employee of the defendant. Custom and practice should have been considered by the jury to establish the standard of care to which the party charged with a wrongful act would be required to conform.

In Dallas, supra, the custom and practice within the elevator industry was admissible on the issue of whether or not the elevator that caused the specific harm should have had a photoelectric safety device.

In Walsh, supra, the plaintiff was an employee who sued the manufacturer of a machine he was working on. Custom and usage were relevant and material to the issue of contributory negligence.

These cases are distinguishable because they involve the applicability of custom and practice, not the rules and regulations of an employer, as to an employee’s standard of care. In Norton and Dallas, supra, the practice and custom is not applied to the conduct of the injured party, but to whether or not the tort-feasor was negligent.

This case is governed by West v. Morgan, 345 Pa. 61, 27 A.2d 46 (1942). The facts are surprisingly similar. In West a highway department worker, who apparently did not put up all of the warning signs required by the department’s safety manual, was working at the rear of a highway truck that was engaged in removing streetcar rails from the center of the road. He was struck when the defendant’s truck swerved to miss the highway truck and struck the plaintiff as the plaintiff was trying to escape.

Our Supreme Court stated:

“In suits against an employer, brought either by an employee or by a third person, it may be proper in some cases to admit rules and regulations adopted by the employer for the conduct of the enterprise as furnishing some evidence of the employer’s own belief, or constituting an implied admission, as to the standard of care required under the particular circumstances; there is no ground, however, for the admissibility of such evidence and actions by an employee against the third person. Moreover, it is clear in the present case that the failure to place the caution sign at a greater distance or to station a flagman did not contribute as a causal factor to the happening of the accident.” West, supra.

Therefore, plaintiffs’ preliminary objections are well taken. Defendants’ request to amend their new matter should be denied.

       Defendants have already admitted that paragraph 27(e) of their new matter is not proper and have, in their brief, consented to the removal of that subparagraph.


author: DOWLING, J.,

text:
    In re Name Change Petition of Stanley Larue Bethea

      Stanley Larzie Bethea, in properia persona.
    January 15, 1991
   DOWLING, J.,

For a person to have a new and highly descriptive name bestowed upon himself is a circumstance well-known to history. Alexander of Macedón, Peter I and Catherine II of Russia, and Frederick of Prussia, after all, had the sobriquet “the Great” added to their names, in recognition of their formidable conquests and achievements as empire-builders; and Shakespeare’s magnificent warrior-hero, who started life as Caius Marcius, finds himself new-christened when, after his stunning victory at Corioles, he hears his fellow general Cominius proclaim:

Therefore be it known,
As to us, to all the world, that Caius Marcius Wears this war’s garland; in token of the which, My noble steed, known to the camp, I give him, With all his trim belonging; and from this time, For what he did before Corioles, call him With all th’ applause and clamor of the host, Marcius Caius Coriolanus! Bear The’ addition nobly ever!

However, there is one significant difference between the fairly grandiose examples cited above and the case currently before us, in that the monarchs and world-shakers to whom we referred were given their titles by popular acclamation. It has fallen to us, in the instant matter, to decide whether a name that is, to say the least, of an unusual character can or should be granted to an individual on his own motion.

Petitioner in this instance, Stanley Larue Bethea, has submitted a request to this court, asking that his name be formally changed to “World Saviour.” The only pertinent question to be addressed herein is whether it would be a proper exercise of our discretion to grant this request.

We must hold that it would not be. It appears to us that the case of Petition of Falcucci, 355 Pa. 588, 50 A.2d 200 (1947), has set forth the governing principles in matters such as these with an admirable cogency. The court in that instance stated:

“In this Commonwealth an individual cannot change his name without permission of the appropriate court acting upon a petition complying with the statutory requirements. In granting or refusing the petition after due hearing and notice the court has wide discretion. If there is '‘lawful objection’ to the granting of the petition it will be denied. If there is no such lawful objection the petition may be granted. Under certain circumstances a court even in the absence of lawful objection should deny such a petition. For example, if some medical practitioner petitioned for leave to change his name to that of an eminent and successful medical practitioner in the former’s vicinity the court would properly deny the petition on the ground that a fraud on the public was intended. The same would be true if some member of the legal profession or some actor or practitioner of another profession would seek judicial authority to assume the name of an other [sic] person who had gained renown in the petitioner’s profession. When a petitioner for a change of name is a competitor of a highly successful person whose name he wishes to assume there is reasonable ground for suspicion that his motive in seeking a change of name is an unworthy one, and a due regard for both the public interest and for the person whose name is coveted would constrain a court to deny his petition. A court would also properly refuse a request for a change in name if petitioner asked for the privilege of assuming a name that was bizarre or unduly lengthy or which would be difficult to pronounce or would have a ridiculous or offensive connotation. Whenever a court has discretion in any matter (as it has in the matter of a change of name) it will exercise that discretion in such a way as to comport with good sense, common decency and fairness to all concerned and to the public.” Falcucci, supra, (emphasis supplied)

It is by these criteria that we have judged this current matter. We must state at the outset that there has, to date, been no objection, lawful or otherwise, to this petition, so that one of the requirements contained in the above passage has already been resolved in the petitioner’s favor — although it is something of a field day for the poetic imagination to envision the circumstances under which such a protestation could be raised in the case at bar.

However, petitioner is on far shakier ground when the other criteria from Falcucci are examined. As to the bizzarerie attendant upon this petition, we can attest with certitude that, in all of our many years on this bench, no one has ever asked us to invoke our legal authority to certify them as a savior of man. We are also mindful of the fact that the majority of the human race either believes that their savior has already come (which, if true, would mean that the name would be misapplied in this instance), or that he is yet to come (which, if true, would almost certainly mean that his stature would, at that time, be certified by the sort of public acclaim which surrounded the figures we named at the outset of this opinion, and of which we see no evidence in the matter currently at bar). Those who accept either of these propositions would, of course, find the appellation under discussion to be highly offensive if bestowed upon anyone other than the One in whom they believe.

While we concede that the case currently before us is probably not quite what Chief Justice Maxey had in mind when he referred to “a petitioner for a change of name [who] is a competitor of a highly successful person whose name he wishes to assume,” there is, as the Scripture reminds us, “a time for every purpose under heaven”; and the principle behind His Honor’s reasoning seems to us to apply here, even if in a somewhat rarefied state.

Finally, while there is no evidence that petitioner has submitted this request with an eye to the commission of any fraud, we cannot escape the disquieting feeling that a granting of this petition would make the likelihood of, if not fraud, certainly repeated and egregious error much more likely. We find it difficult to imagine the ordinary duties of a citizen in our modern society — in areas as diverse as responses to income tax mailings, census questionnaires, and opinion polls — being conducted under the heading of this particular moniker. Also, the fact that there is such diversity of opinion as to the nature and identity of the one to whom so many refer by that word “savior” would, we feel, greatly increase the possibility of an improper use of this name being made by unscrupulous characters. We have only to remember the oceans of blood that have been wrongly spilled over the centuries by those who claimed to be acting on behalf of a wide variety of prophets, seers and divine messengers to take this potential for abuse seriously.

Accordingly, we enter the following

ORDER

And now, January 15, 1991, the petition for change of name by Stanley Larue Bethea to change his name to “World Savior” is denied.

      . Coriolanus, Act I, Scene 9.

      . Petitioner gives as his reason for wanting this change of name the proposition that it will facilitate him in becoming a vehicle for “peace in the Middle East and the rest of the world.” With the prospect of war in that region hovering over our heads as of the date of this writing (January 10), we are bound to say that this avenue towards peace would seem about as likely to bear fruit as any other.

      . Ecclesiastes 2:1.


text:
    Todd Giddings and Associates Inc. v. Avery Chemical Division - Avery International Inc.

      Joel L. Lennen, for plaintiff.

      Fredrick Farber, for defendant.
    January 19, 1991
   BROWN,/.,

This mechanics’ lien claim arises out of efforts to respond to a solvent spill at defendant’s chemical plant in Mill Hall, Pennsylvania. Because the spill caused groundwater contamination, in December 1988 the Department of Environmental Resources threatened to close the plant if defendant did not submit and implement an acceptable assessment and abatement plan.

On or about January 19, 1989, defendant entered into an oral agreement with plaintiff to provide hydrogeologic and engineering services related to the spill. There appears to be some disagreement as to the scope of the alleged oral contract. Plaintiff contends that it agreed to conduct assessment of groundwater contamination, to develop an assessment and abatement plan satisfactory to DER, and to implement that abatement plan. Defendant says it hired plaintiff only to prepare an assessment and abatement plan satisfactory to the DER. It is uncon-troverted that the abatement plan prepared by plaintiff was not accepted by the DER and that defendant terminated plaintiff upon such notification from the DER on July 7, 1989.

Between January 19, 1989 and July 7, 1989, plaintiff contends that it designed and supervised partial installation of an “improvement” on defendant’s property in the form of an “abatement facility.” Plaintiff’s proposed “abatement facility” would have consisted of pipes, pumps and water purification equipment. It is uncontroverted that plaintiff supervised the drilling of numerous monitoring wells on defendant’s premises. These wells were useful to plaintiff in the assessment process. Plaintiff argues that the wells would have become part of the “abatement facility” that plaintiff proposed. Alternatively, plaintiff contends its work was a repair. Following oral arguments on the pending motion, plaintiff submitted a supplemental memorandum and affidavit stating that plaintiff designed and supervised the installation of flexible plastic pipes that changed the discharge locations of roof drains at defendant’s plant.

Defendant contends that the materials and services provided by plaintiff did not effect any permanent or substantial improvement on defendant’s property. Specifically, defendant represents to the court that most of the monitoring wells installed under plaintiff’s supervision have been removed. Although plaintiff apparently intended to use those monitoring wells as part of its proposed abatement plan, that plan was never put into effect and consequently, defendant argues, the monitoring wells were not part of an abatement process or permanent improvement at the plant. In response to plaintiff’s supplemental memorandum and affidavit alleging that plaintiff designed and supervised installation of a new drainage system on the office and manufacturing facility, defendant filed a supplemental affidavit from its plant manager stating that the drain pipes were installed under plaintiff’s supervision.

Plaintiff filed a mechanic’s lien in the amount of $55,849.02, plus interest, on October 10, 1989. On November 15, 1989 plaintiff filed a complaint requesting that judgment be entered on the mechanic’s lien claim. In its answer defendant alleges that plaintiff failed to perform the services originally agreed to, that plaintiff failed to perform in a workmanlike manner, and that plaintiffs work was defective and in fact worsened conditions at the plant. (Answer paragraph 5.) In its answer, new matter, and set-off, defendant alleges breach of contract by plaintiff and claims a set-off against plaintiff in excess of $10,000. Defendant also filed the instant motion for summary judgment challenging the validity of plaintiffs mechanics’ lien claim.

ISSUES

(1) Whether defendant is entitled to summary judgment on the ground that plaintiff did not erect, construct, alter or repair, or furnish labor, material or supervision for the erection, construction, alteration or repair of an improvement as required by the Pennsylvania Mechanics’ Lien Act, 49 Pa.C.S. §1101 et seq.

(2) Whether this action is barred by the applicable statute of limitations set forth in 49 Pa.C.S. §1502(a)(l).

(3) Whether the court should strike plaintiff’s mechanic’s lien claim on the ground that plaintiff failed to provide a detailed statement of the kind of labor or material furnished pursuant to 49 Pa.C.S. §1503(b).

DISCUSSION

Under Pa.R.C.P. 1035(b), the court shall enter summary judgment where “there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.” In ruling on a motion for summary judgment, the court is required to view the evidence in the light most favorable to the non-moving party. Schacter v. Albert, 212 Pa. Super. 58, 239 A.2d 841 (1968). The court must accept as true all well-pleaded facts in the non-moving party’s pleadings, and give the non-moving party the benefit from all reasonable inferences that can be drawn therefrom. Id.

Mechanic’s liens were not recognized at common law. Because they are purely a creation of statute, the Pennsylvania courts require that the Mechanics’ Lien Law be given a strict construction. Sampson-Miller Associated Companies Inc. v. Landmark Realty Co., 224 Pa. Super. 25, 303 A.2d 43 (1973). The Pennsylvania Mechanics’ Lien Act provides:

“Every improvement and the estate or title of the owner in the property shall be subject to a lien . . . for the payment of all debts due by the owner to the contractor or by the contractor to any of his subcontractors for labor or materials furnished in the erection or construction, or the alteration or repair of the improvement, provided that the amount of the claim . . . shall exceed $500.” 49 Pa.C.S. §1301. (emphasis supplied)

Thus, to claim a mechanic’s lien, a contractor must have undertaken the erection, construction, alteration, or repair of an “improvement.” An “improvement” includes:

“[A]ny building, structure or other improvement of whatsoever kind or character erected or constructed on land, together with the fixtures and other personal property used in fitting up and equipping the same for the purpose for which it is intended.” 49 Pa.C.S. §1201(1).

Pennsylvania courts have held that an “improvement” must be both substantial and permanent. Sampson-Miller at 29, 303 A.2d at 45. Additionally, the services, labor, and materials provided by the contractor must increase the value of the property or there is no right to a lien. Dagit v. Radnor Convalescent &. Nursing Home, 38 D.&C. 2d 389, 391 (1965). Finally, an improvement must be either physically attached to an existing structure or must be incidental to the erection, construction, alteration or repair of an existing building or structure. Joyce v. Sarnelli, 29 D.&C. 3d 544 (1984).

The court finds as a matter of law that the installation of monitoring wells is not an “improvement” under Pennsylvania law. Each monitoring well consisted of a piece of PVC piping two inches in diameter that was inserted into a drilled hole and capped on the surface end. The monitoring wells were not attached to any building, facility or structure. The wells could be removed simply by pulling the pipe out of the ground.

It is uncontroverted that most of the monitoring wells have now been removed. Accordingly, the court must accept as true the fact that the monitoring wells were not permanent. The court recognizes that plaintiff is arguing the wells would have been permanent had plaintiff’s proposed abatement plan been put into effect. Because plaintiff’s plan was abandoned, however, the wells apparently have served no permanent function. Additionally, there is no evidence in the record to suggest that the installation of the monitoring wells increased the value of defendant’s property. On the contrary, defendant alleges that the wells served to aggravate the existing problem with groundwater contamination and thereby increased the costs of abatement. Finally, it is uncontroverted that the monitoring wells were not attached in any way to an existing improvement on defendant’s property.

The court also finds as a matter of law that the installation of flexible plastic pipes onto the roof drains at defendant’s office and manufacturing plant does not constitute an improvement. The affiant, M. Todd Giddings, states that the purpose of rerouting the drain pipes was to contain groundwater contaminants until the abatement process. This function is akin to plaintiff’s assessment responsibilities. Simply containing contamination, pending remediation, is not a permanent improvement. Moreover, the supplemental affidavit of defendant’s plant manager indicates that the flexible plastic pipe that plaintiff suggested defendant’s personnel attach to the roof drains has already been removed. Thus, the argument that the plastic pipes were somehow permanent is unavailing. Finally, there is no evidence that rerouting the drain pipes increased the value of defendant’s property.

Plaintiff contends that if its monitoring wells were not an improvement to defendant’s property, they were a “repair” to an existing improvement. Plaintiff makes the bald argument that all the work done “was undertaken as a repair of the property damaged by the chemical spills ...” (Plaintiff’s brief in opposition at 10.) Even viewing the facts in the light most favorable to plaintiff, the court must reject this argument. Although plaintiff would have liked to undertake the remediation or abatement process at defendant’s plant, it is uncontroverted that defendant terminated plaintiff prior to the beginning of the abatement process. All of the activities undertaken by plaintiff and delineated in plaintiff’s invoices relate to assessing chemical contamination and preparing a report for the DER.

Plaintiff attempts to bootstrap its way to a lien by claiming that the monitoring wells it designed and installed would be used in the abatement process and thereafter. There is no ¿vidence that the monitoring wells were ever so utilized. On the contrary, the only evidence before the court is that the majority of the monitoring wells have been removed. Although the parties dispute whether plaintiff was in fact hired to supervise the abatement process, an issue which need not be decided, the court believes that, had plaintiff been permitted to continue providing services to defendant throughout the abatement process, that abatement process arguably would have been a “repair” to defendant’s property. However, the facts of this case make clear that the groundwater contamination was essentially the same when plaintiff was terminated on July 7, 1989 as it was when plaintiff began rendering its services in January 1989. Thus, as a matter of law, there was no repair made to any improvement existing on defendant’s property.

Therefore, the court finds as a matter of law that defendant is entitled to summary judgment on plaintiff’s mechanic’s lien claim because plaintiff effected neither improvement nor a repair on defendant’s property. The remaining issues in this action are now moot.

ORDER

And now, January 19, 1991, based upon the foregoing opinion, defendant’s motion for summary judgment on plaintiff’s mechanic’s lien claim is granted.


author: ESHELMAN, T.J., J.,

text:
    Revere House Associates v. Commonwealth Land Title Insurance Co.

      Bradley Davis Miller and William P. Barrett, for plaintiffs.

      Carla Mark, Thomas J. Ziomek, Gary Marek and Charles K. Servirte, for defendant.
    January 4, 1991
   ESHELMAN, T.J., J.,

Plaintiffs have appealed our order entered in this matter on September 19, 1990, which granted defendant’s motion for summary judgment. This opinion is in support of our order pursuant to Pa.R.A.P. 1925.

Plaintiffs are a real estate limited partnership, Revere House Associates, and its general partner, Donald Barsky. Plaintiffs contend that Commonwealth Land Title Insurance Company failed in March 1977 to file a stipulation against mechanics’ liens on property owned by Revere House, with the result that liens were later filed and Revere House suffered damages. Plaintiffs filed a writ of summons commencing this action in June 1983.

Commonwealth Insurance has moved for sum-maiy judgment, based on the theory that either plaintiffs’ claims are barred by the two-year statute of limitations applicable to negligence actions, or the four-year statute applicable to oral or implied contracts. In response, plaintiffs have disavowed any negligence or implied or oral contract theory, and now contend that their claim is based solely on Commonwealth Insurance’s title policy and is subject to a six-year statute of limitations. Although Commonwealth Insurance issued a title policy, the policy imposes no duty upon Commonwealth Insurance to file a stipulation prohibiting the filing of liens.

Moreover, it is a fundamental precept of title insurance law that policies do not cover damages resulting from liens filed after the date of the policy. Indeed, Commonwealth Insurance’s policy specifically excludes “liens . . . created after [April 1, 1977],” and plaintiffs admit that the first lien against the Revere House property was filed in December 1978. Thus, even if plaintiffs’ claim were based on the policy it must still be dismissed as a matter of law because it is not covered.

Plaintiffs cite no authority (or policy language) for the proposition that a title insurer has an obligation under a title insurance policy to file a stipulation against liens. While it is certainly possible for a title company to agree to file a completed stipulation against liens, it is not a policy obligation; it is a separate arrangement outside the policy. Since Commonwealth Insurance’s alleged agreement to file a stipulation against liens is not in the policy, any claims based on the breach of the alleged agreement are subject to a two-year or four-year statute of limitations. '

Plaintiffs’ central error is their contention that a title policy protects against liens filed after the date of the policy. This is a serious misstatement of the law, and plaintiffs’ memorandum makes it repeatedly. A policy of title insurance does not cover liens filed after the date of the policy, because it “does not protect against defects, liens or encumbrances arising after the date as of which the policy is issued.” Ladner on Conveyancing in Pennsylvania, 20-11 at 38 (4th ed. 1979) (emphasis in original), citing Foehrenbach v. German-American Title & Trust Co., 217 Pa. 331, 66 Atl. 561 (1907). Title insurance companies protect against liens arising before the owner takes his interest in the property. The title insurance policy here is dated April 1,1977, and the first lien was not filed until December 1979, more than two and a half years after the policy date.

The authorities on this point are uniform. “Title policies insure against past risks and exclude future risks. In that sense, title insurance is fundamentally different from other lines of insurance, such as health and accident insurance. ...” Burke, Law of Title Insurance, 3.7 (1986). “Title insurance is an indemnification agreement for the title as it exists on the effective date of the policy. Defects in the insured title which arise thereafter are not insured.” Id. at 2.2.1.

In fact, in the only Pennsylvania case cited by plaintiffs concerning title insurance, Wheeler v. Real Estate Title Insurance & Trust Co., 160 Pa. 408, 28 Atl. 849 (1894), the Supreme Court recognized this basic principle:

“[T]he policy was executed in 1888. The municipal work for which the claims in question were filed was not done until 1891. Such claims were neither a charge on the property at the date of the policy, nor became so within the period provided for in schedule B. They were not within the policy at all and created no cause of action under it. ” (emphasis supplied)

In summary, plaintiffs’ claim is based on an alleged agreement or duty separate from and not contained in the policy, and it is time-barred. To the extent plaintiffs insist that their damages claim is made under the policy, it is not covered, and, in fact, is specifically excluded. The court should make that determination as a matter of law. Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 304-5, 469 A.2d 563, 566 (1983). Plaintiffs state, without citing any authority, that “even if Commonwealth [Insurance] argues that the policy does not cover unfiled mechanics’ claims, the question of what or what was not covered under the policy is a question of fact for the jury.” Plaintiffs’ memorandum at 14. Commonwealth Insurance is not arguing that unfiled mechanics’ liens are not covered; it is arguing that mechanics’ liens filed after the date of the policy are not covered. As to whether interpretation of an insurance policy is a question for the court or jury, there is simply no question that it is for the court. As the Pennsylvania Supreme Court said in Standard Venetian Blind, supra, “[T]he task of interpreting a contract is generally performed by a court rather than a jury. . . . Where . . . the language of the contract is clear and unambiguous, a court is required to give effect to that language.” 503 Pa. at 304-5, 469 A.2d at 566.

Pennsylvania Rule of Civil Procedure 1035(b) provides that summary judgment “shall be rendered if the pleadings,- depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Summary judgment can properly be granted in favor of the defendant when the plaintiff has failed to commence his cause of action within the time prescribed by the applicable statute of limitations. Mangino v. Steel Contracting Co., 427 Pa. 533, 235 A.2d 151 (1967); Stauffer v. Ebersole, 385 Pa. Super. 306, 560 A.2d 816 (1989); Goodrich-Amram 2d, §§1035(b)7, 1035(b)7.2.

For all of the reasons discussed above, this court was required to grant defendant Commonwealth Insurance’s motion for summary judgment.

      . A copy of the policy is attached as exhibit B to Commonwealth Insurance’s motion. The cited language appears at the bottom of the second page of the policy in paragraph 3 under the heading “Exclusions from Coverage.”

      . It would still be time-barred as well, because the alleged breach — the failure to file the stipulation — occurred on March 31, 1977, more than six years before suit was initiated.

      . All but one of the cases relied on by plaintiffs concern auto liability policies, health and accident policies and life insurance policies.

      . The Commonwealth Insurance policy exclusions section clearly states:

        “The following matters are expressly excluded from the coverage of this policy: ... (3) Defects, liens, encumbrances, adverse claims or other matters . . . (d) attaching or created subsequent to Date of Policy [April 1, 1977] ...”


author: WETTICK, J.,

text:
    Eads v. Port Authority of Allegheny County

      James E. DePasquale, for plaintiff.

      Alan E. Cech, for defendant.
    January 4, 1991
   WETTICK, J.,

Defendant’s motion for summary judgment is the subject of this opinion and order of court.

Plaintiff was injured in an accident between a PAT bus on which she was riding and another vehicle. Neither plaintiff nor any member of her household owned a vehicle which is required to be registered under the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1701 et seq. Consequently, plaintiff is entitled to look to PAT to provide those benefits available under the Motor Vehicle Financial Responsibility Law.

The accident between the bus and the other vehicle was caused by the negligence of the driver of the other vehicle. Plaintiff has received the policy limits of $50,000 from the other driver’s insurance carrier. Plaintiff alleges that her compensable damages in tort exceed $50,000. In the present case, she has brought a lawsuit against PAT for $15,000 for the underinsured motorist’s coverage provided for in 75 Pa.C.S. §§1731-1736.

PAT is self-insured. It contends that a self-insurer has no obligation under the Motor Vehicle Financial Responsibility Law to provide underinsured motorist’s coverage. In support of its position, PAT relies on 75 Pa.C.S. §1787(a) which reads as follows:

“(a) General rule — Self-insurance is effected by filing with the Department of Transportation, in satisfactory form, evidence that reliable financial arrangements, deposits, resources or commitments exist such as will satisfy the department that the self-insurer will:

“(1) Provide the benefits required by section 1711 (relating to required benefits), subject to the provisions of Subchapter B (relating to motor vehicle liability insurance first-party benefits), except the additional benefits and limits provided in sections 1712 (relating to availability of benefits) and 1715 (relating to availability of adequate limits).

“(2) Make payments sufficient to satisfy judgments as required by section 1774 (relating to payments sufficient to satisfy judgments).

“(3) Provide uninsured motorist coverage up to the limits set forth in section 1774.”

PAT contends that the absence of any reference to underinsurance benefits in section 1787(a) means that a self-insurer is not required to provide unde-rinsurance benefits.

The Pennsylvania Motor Vehicle Financial Responsibility Law allows any applicant for registration of a vehicle to comply with the financial responsibility requirements of the act by obtaining motor vehicle liability insurance or by meeting the self-insurance requirements of 75 Pa.C.S. §1787. See 75 Pa.C.S. §§1781-1782. The Motor Vehicle Financial Responsibility Law also requires every motor vehicle liability insurance policy to provide underin-sured motorist coverage. 75 Pa.C.S. §1731.

Since any owner of a vehicle can comply with the financial responsibility requirements of the act by either obtaining motor vehicle liability insurance or by meeting the self-insurance requirements of section 1787, there would be no reason for the legislature to differentiate between the benefits that an injured third party will receive on the basis of the selection that the owner made. Consequently, we are unwilling to reach such a conclusion in the absence of a clear and unambiguous statement by the legislature that it intended such a result. See Jones v. Travelers’ Insurance Co., 356 Pa. Super. 213, 514 A.2d 576 (1986), quoting Modesta v. SEPTA, 503 Pa. 437, 469 A.2d 1019 (1983):

“ ‘[T]he sole purpose of self-insurance is to relieve self-insurers of the burden of expending their assets on insurance premiums; self-insurance is not a means by which self-insurers may avoid the claims of those individuals for whose protection the insurance laws have been enacted.’ ”

This same result was reached with respect to uninsured motorist’s coverage. Modesta, supra. See also, Brissett v. SEPTA, 355 Pa. Super. 508, 513 A.2d 1037 (1986), and Jones v. Travelers’, supra. In Brissett the Pennsylvania Superior Court stated:

“As a self-insurer, however, SEPTA is required to provide the equivalent of uninsured motorist coverage and, therefore, will be treated under the law as though it had in place a policy of insurance providing uninsured motorist coverage.”

The only provision that PAT cites in support of its position is 75 Pa.C.S. §1787. There is no merit to PAT’s contention that section 1787’s failure to mention underinsurance benefits is a clear expression of the legislature’s intention to exempt self-insurers from paying underinsurance benefits. This provision does not address the obligations of a self-insurer to pay the benefits described in the Motor Vehicle Financial Responsibility Law. It only addresses the issue of which potential payments the Department of Transportation shall consider in determining whether the owner seeking a self-insurance status has provided sufficient evidence that reliable financial arrangements, deposits, resources, and commitments exist. The evidence that would establish a self-insurer’s ability to provide uninsured motorist coverage would also establish its ability to pay underinsured motorist coverage. Furthermore, a person who recovers damages under uninsured motorist coverage cannot recover damages under un-derinsured motorist coverage for the same accident. 75 Pa.C.S. §1731(d). Consequently, in all likelihood the legislature did not mention underinsurance benefits in section 1787 because the requirement that the self-insurer have sufficient resources to pay uninsured motorist claims fully protects persons with underinsured motorist claims.

Finally, we rely on the case law holding that this legislation must be liberally construed — that we should find coverage unless “ ‘equally strong legal or equitable considerations to the contrary are present.’ ” Tubner v. State Farm Mutual Automobile Insurance Co., 280 Pa. Super. 38, 421 A.2d 392 (1980), aff'd. 496 Pa. 215, 436 A.2d 621 (1981). See Persik v. Nationwide Mutual Insurance Co., 382 Pa. Super. 29, 554 A.2d 930 (1989), which held that like its predecessor statute (the No-fault Act of July 19, 1974) the Pennsylvania Motor Vehicle Financial Responsibility Law is to be liberally construed.

ORDER

On this January 4, 1991, it is hereby ordered that defendant’s motion for summary judgment is denied.


text:
    Burrell Industries Inc. v. Phillips

      Jerry W Wienand, for plaintiff.

      Robert L. Downey Jr., for defendant.
    December 10, 1990
   WETTICK, J.,

These proceedings arise out of an automobile accident involving a motor vehicle owned by Burrell Industries Inc., and a motor vehicle owned by Nancy Phillips and driven by her husband, William Phillips. These proceedings were instituted through a complaint that Burrell filed before a district justice naming Nancy Phillips and William Phillips as defendants. On November 1, 1989, the district justice entered a judgment in Burrell’s 'favor as to William Phillips and dismissed the claim against Nancy Phillips. On November 29, 1989, Burrell filed a notice of appeal from the November 1, 1989, judgment which stated that this was an appeal in the case of “Burrell Industries Inc. v. Nancy Phillips (only).” At the same time, Burrell Industries Inc. filed a complaint which named only Nancy Phillips as the defendant.

On April 18, 1990, plaintiff entered the judgment obtained from the district justice against William Phillips in this court pursuant to Pa.R.C.P.D.J. 402(D). The subject of this opinion and order of court is William Phillips’ motion to strike this judgment.

William Phillips contends that Burrell’s appeal operated as an appeal by all parties as to all issues. Consequently, Burrell’s appeal extinguished the judgment which the district justice entered in Bur-rell’s favor against William Phillips.

Burrell, on the other hand, contends that it appealed only from the judgment that dismissed its claim against Nancy Phillips. Therefore, the judgment against William Phillips stands because of his failure to file an appeal within the 30-day appeal period.

It is clear from the notice of appeal that Burrell sought to limit its appeal to the judgment in Nancy Phillips’ favor. Thus, we must decide whether it was possible for Burrell to do so or whether any appeal from a district justice judgment operates, as a matter of law, as an appeal by all parties as to all issues.

If this were an appeal from an arbitration award, there would be no dispute concerning this issue. In 1981 the Pennsylvania Supreme Court promulgated Pa.R.C.P. 1309, which provides that an appeal by any party “shall be deemed an appeal by all parties as to all issues unless otherwise stipulated in. writing by all parties.” However, the Rules of Civil Procedure for District Justices do not address this issue.

William Phillips contends that this issue is addressed by Pa.R.C.P.D.J. 1007(A) which provides that a “proceeding on appeal shall be conducted de novo in accordance with the Rules of Civil Procedure that would be applicable if the action was initially commenced in the court of common pleas.” But this rule does not indicate whether the proceedings that shall be conducted de novo involve all parties and claims that the district justice considered or only those parties and claims identified in the notice of appeal.

Burrell contends that Pa.R.C.P.D.J. 1004(C) permits a party to file a notice of appeal which limits its scope. However, this rule only addresses the situation in which each party has filed a complaint against the other and the district justice has entered separate judgments on each complaint. It does not address the situation in which an appeal is taken from judgments entered on a single complaint.

Although discussed in the case of Maybee v. McKnight, 264 Pa. Super. 16, 398 A.2d 1034 (1979), the issue of whether an appeal of a district justice judgment by one party inures to the benefit of other parties has never been decided by our appellate courts. In Maybee v. McKnight, the district justice entered judgment in favor of plaintiff and against defendant Coryea and in favor of defendant McKnight against plaintiff. Coryea appealed. Plaintiff did not. Pursuant to Coryea’s appeal, plaintiff filed a complaint naming Coryea and McKnight as defendants. Subsequently, plaintiff also obtained a court order permitting McKnight to be joined as a defendant. McKnight filed a preliminary objection to plaintiff’s complaint contending that plaintiff’s failure to appeal from the judgment entered in his favor deprived the court of jurisdiction over the case as it related to this defendant. The court considered only this issue and held that the common pleas court had jurisdiction over McKnight. In reaching this result, Judge Hoffman, writing for the court, stated:

“While we do not believe that an appeal to the common pleas court by one defendant automatically reopens the issue of another’s liability, see, e.g., Delmarmol v. Fidelity and Deposit Co. of Maryland, 225 Pa. Super. 90, 310 A.2d 363 (1973) (appeal of one defendant from arbitration award does not reopen issue of another defendant’s liability); Fante v. Philadelphia Transportation Co., 222 Pa. Super. 276, 294 A.2d 776 (1972), we do believe that Rule 1007B allows any party to join another in an appeal already instituted by another without filing a separate appeal. We also believe that, with respect to the common pleas court’s jurisdiction over the joined defendant, this application of Rule 1007B does not contravene 42 Pa.C.S. §3005(b).” (emphasis in original)

Also, Judge Wieand, concurring, stated:

“I concur fully in the majority’s decision to affirm the order causing appellant to be joined as a party to the action pending in the trial court. Therefore, I find it unnecessary to determine whether, in the absence of such an order, one defendant’s appeal from a magistrate’s decision would carry with it the issue of another defendant’s liability.”

In the case of Bonnett v. Ginn, 22 D.&C. 3d 243 (1982), this court considered the issue of whether an appeal from a district justice judgment is limited to the judgment against the appellant or whether it operates as an appeal on behalf of other parties. In that case, the district justice found for plaintiff against one defendant and for a second defendant against the plaintiff. The first defendant filed a timely notice of appeal which referred only to the judgment entered in plaintiff’s favor against this defendant. Plaintiff then filed a complaint in which it named only the appellant as a defendant. The appellant sought to join the second defendant as an additional defendant. The second defendant contended that it could not be joined because of the district justice’s judgment in its favor. We held that the first defendant’s appeal operated as an appeal by all parties as to all issues.

In the present case, Burrell contends that Bonnett v. Ginn should not apply because in that case it was apparent that the first defendant intended for its appeal to include the judgment in favor of the second defendant since this judgment was detrimental to the first defendant’s interests. In the present case, on the other hand, it is clear that the plaintiff intended only to appeal from the judgment in Nancy Phillips’ favor.

We reject Burrell’s efforts to distinguish the Bonnett v. Ginn opinion in this manner. The rationale for our decision in Bonnett v. Ginn is equally applicable to the present case.

Prior to the Pennsylvania Supreme Court’s promulgation of Pa.R.C.P. 1309, which provides for any appeal from an arbitration award to operate as an appeal by all parties as to all issues, extensive appellate court case law addressed the issue of whether an appeal from an arbitration award by one party inures to the benefit of other parties. The appellate courts had attempted to create a general rule that an appeal by one party is of no avail to any other party except where it appeared that it was the intention of the appealing party to have the appeal operate as an appeal on behalf of other parties. However, as Judge Price had frequently observed, the series of rules developed for determining the intent of an appellant “render the issue confused and the results uncertain.” Berkey v. Puliafico, 254 Pa. Super. 119, 385 A.2d 554 (1978) (Price, dissenting). Consequently, he proposed that the appellate courts discard the intention-of-the-parties rule (because it was unworkable) and substitute the rule that an appeal by one is an appeal by all. It appears that this rationale served as the basis for the Pennsylvania Supreme Court’s promulgation of Rule 1309. See Explanatory Note-1981 to this rule, which reads as follows:

“This rule will end the interminable litigation as to when an appeal by one party inures to the benefit of one or more other parties to the action. The courts developed a set of rules, based on the perceived intention of the appellant and depending on who wins, who loses and who appeals. Judge Price in Mitchell v. City of Pittsburgh, 233 Pa. Super. 119, 335 A.2d 403 (1975), found the decisions so confusing that he proposed a simple rule that an appeal by any party will be an appeal by all parties as to all issues. Rule 1309 adopts this approach. The only exception is when all parties stipulate the contrary in writing.”

In Bonnett v. Ginn, we concluded for three reasons that we should follow the approach that the Pennsylvania Supreme Court adopted in Rule 1309 rather than the approach that the appellate courts followed prior to the promulgation of Rule 1309. First, we were persuaded by Judge Price’s descriptions of the case law and were, therefore, unwilling to extend a body of case law that had created substantial confusion and unfairness to appeals from district justice judgments. Second, we believed that the Pennsylvania Supreme Court adopted Rule 1309 in response to the problems with the pre-1981 case law that Judge Price described. Consequently, we should not follow an approach that the Pennsylvania Supreme Court has rejected merely because this rejection was in the form of the promulgation of a rule of procedure rather than a court decision. Third, since the Rules of Civil Procedure governing appeals from district justice judgments and compulsory arbitration awards give litigants identical rights to obtain a de novo hearing by filing an appeal, there should be uniformity as to who is a party to the appeal in order that litigants do not inadvertently lose their day in court. There is no justification for case law which would establish a more complicated and restrictive rule for district justice proceedings because these proceedings are more likely to involve unrepresented litigants.

Because our decision in Bonnett v. Ginn was based on the use of a rule that an appeal by one is an appeal by all rather than upon the apparent intention of the appellant, this decision applies to the current fact situation involving an appellant who clearly wishes to limit the appeal to its claim against only one of the defendants in the proceedings before the district justice.

ORDER OF COURT

On this December 10, 1990, upon consideration of William Phillips’ motion to strike judgment, it is hereby ordered that:

(1) The judgment entered against William Phillips at no. 90-06881 is stricken; and

(2) Within 20 days, Burrell Industries Inc. may file a complaint against William Phillips.

      . This court addressed the issue of whether an appeal of a judgment entered on one complaint serves as an appeal of the judgment entered on a cross-complaint involving the same parties in the case of Olczak v. Miller, 4 D.&C. 4th 485 (1989).

      . The court did not decide whether recovery against McKnight was barred by the doctrine of res judicata. Also, this case was decided before the promulgation of Pa.R.C.P. 1309.


author: NANOVIC, P.J.,

text:
    In re C.W.M.

      C.P. of Carbon County,
    no. 155 JV 2005.

      Michael S. Greek, assistant district attorney, for Commonwealth.

      Joseph D. Perilli, for defendant.
    April 21, 2006
   NANOVIC, P.J.,

At issue in these proceedings is whether a juvenile court has the authority to order an adjudicated delinquent child to pay restitution to a co-participant in the underlying crimes, who was never charged with or convicted of any of the crimes involved. We state the relevant facts as follows:

FACTS AND PROCEDURAL BACKGROUND

During the evening of December 10 and the early morning hours of December 11, 2004, the juvenile who is the subject of these proceedings (C.W.M.) and three of his friends, all minors, attended a party in Lehigh Township, Carbon County, Pennsylvania, at which all four consumed alcohol. After leaving the party, C.W.M. and M.R., one of C.W.M.’s three friends, discussed going for a joy ride. They invited their two other friends to join them.

The four stole an automobile from a local garage belonging to an acquaintance of C.W.M.’s family. C.W.M. was the driver, with M.R. sitting in the front passenger seat and the two others in the rear seat. After traveling seven to eight miles, the vehicle was involved in a one-car accident in which M.R. sustained serious bodily injuries.

The police charged C.W.M. as a juvenile with the following nine offenses:

“Count 1: Driving under the influence of alcohol — 75 Pa. C.S. §3802(e) (B.A.C. .07percent) (misdemeanor)

“Count 2: Aggravated assault by vehicle while driving under the influence — 75 Pa.C.S. §3735 (felony 2)

“Counts 3-5: Recklessly endangering another person— 18 Pa.C.S. §2705 (one count for each passenger) (misdemeanor 2)

“Count 6: Accident involving death or personal injury — 75 Pa.C.S. §3742.1 (with M.R. as the injured party) (felony 3)

“Count 7: Reckless driving — 75 Pa.C.S. §3736 (summary)

“Count 8: Careless driving — 75 Pa.C.S. §3714 (summary)

“Count 9: Drivers required to be licensed — 75 Pa.C.S. §1501(a) (summary).”

Pursuant to a plea agreement, C.W.M. admitted to committing the offenses described in Counts 1 and 6, with the remaining counts to be dismissed. As part of the plea agreement, C.W.M. agreed to pay restitution to the victims of the crimes. (See stipulation dated 9/ 12/2005.)

In addition to the foregoing offenses charged in these proceedings, in a separate case docketed to no. 124 JV 2005, C.W.M. was charged with the following three offenses related to the taking of the automobile:

“Count 1: 18 Pa.C.S. §3921(a) — theft by unlawful taking or disposition

“Count 2: 18 Pa.C.S. §3925(a) — receiving stolen property

“Count 3: 18 Pa.C.S. §3928(a) — unauthorized use of automobile and other vehicles.”

C.W.M. has previously admitted to the crime of receiving stolen property, been adjudicated delinquent, and been directed to pay restitution in the amount of $3,565 for property damage to the vehicle.

Because there was insufficient information to decide the issue of restitution at the time of adjudication in this matter, a subsequent hearing was scheduled for these purposes. At this hearing, the Commonwealth sought restitution on behalf of M.R. for the costs of his medical and hospital treatment, a sum totaling $230,945.94. M.R.’s injuries which necessitated these expenses were a direct result of the motor vehicle accident on December 11, 2004. Neither M.R. nor either of the other two juveniles involved in the theft of the vehicle were charged criminally for any of their conduct surrounding the taking of the vehicle and subsequent accident.

C.W.M. is now 18 years of age (D.O.B. 9/14/87), in 12th grade, and in good health. He was 17 at the time of the accident. His only assets of substance are approximately $200 in a checking account and $1,000 in a certificate of deposit that had been set aside for him by his family for college. He presently is unemployed but is seeking a job. In his last job, he made approximately $8.50 an hour working 10 to 15 hours a week. Upon graduation he hopes to attend college.

DISCUSSION

A. Legality of Awarding Restitution to a Criminal Participant

The threshold question we must decide is whether M.R., as an uncharged criminal participant in the commission of a crime in which he was injured, is legally eligible for restitution. This first issue to a slightly different degree was raised in In the Interest of J.E.D., 879 A.2d 288 (Pa. Super. 2005), appeal denied, 586 Pa. 713, 889 A.2d 1216 (2005), but never decided, the appellate court finding that the issue had been waived. Id. at 293 n.7 (arguing that the trial court should have allocated a portion of the insurance paid for the victim’s medical expenses to the victim because he was a co-participant). We are unaware of any other court in this Commonwealth that has addressed the issue in either a juvenile or adult proceeding.

Contained within this issue is the question of whether M.R. is a victim. That is, can there be restitution if there is no victim? Put another way, is only a victim entitled to restitution? And if so, who is a victim? More to the point, is a person injured during the commission of a crime defmitionally a victim, even if he participated in the crime but was not charged? The question is peculiarly a legal one requiring an examination of the legal authority to award restitution. In the Interest of M. W., 555 Pa. 505, 510 n.4,725 A.2d 729, 731 n.4 (1999) (explaining that a challenge to the trial court’s authority to impose restitution concerns the legality of the sentence whereas a challenge that the amount of restitution ordered is excessive involves a discretionary aspect of sentencing).

“[A]n order of restitution must be based upon statutory authority.” Id., 555 Pa. at 511, 725 A.2d at 731; Commonwealth v. Harner, 533 Pa. 14, 17, 617 A.2d 702, 704 (1992). In juvenile proceedings this authorization is found in 42 Pa.C.S. section 6352(a)(5) of the Juvenile Act which provides:

“Section 6352. Disposition of delinquent child

“(a) General rule. — If the child is found to be a delinquent child the court may make any of the following orders of disposition determined to be consistent with the protection of the public interest and best suited to the child’s treatment, supervision, rehabilitation, and welfare, which disposition shall, as appropriate to the individual circumstances of the child’s case, provide balanced attention to the protection of the community, the imposition of accountability for offenses committed and the development of competencies to enable the child to become a responsible and productive member of the community: ...

“(5) Ordering payment by the child of reasonable amounts of money as fines, costs, fees or restitution as deemed appropriate as part of the plan of rehabilitation considering the nature of the acts committed and the earning capacity of the child, including a contribution to a restitution fund. The president judge of the court of common pleas shall establish a restitution fund for the deposit of all contributions to the restitution fund which are received or collected. The president judge of the court of common pleas shall promulgate written guidelines for the administration of the fund. Disbursements from the fund shall be made, subject to the written guidelines and the limitations of this chapter, at the discretion of the president judge and used to reimburse crime victims for financial losses resulting from delinquent acts. For an order made under this subsection, the court shall retain jurisdiction until there has been full compliance with the order or until the delinquent child attains 21 years of age. Any restitution order which remains unpaid at the time the child attains 21 years of age shall continue to be collectible under section 9728 (relating to collection of restitution, reparation, fees, costs, fines and penalties). ...” (emphasis added) This section, unfortunately, does not answer the question before us.

By contrast, in criminal proceedings the statutory authorization for imposing restitution defines several significant terms. Under this system, “[t]he right to impose restitution is statutorily grounded in two provisions, 42 Pa.C.S. §9721(c) and 18 Pa.C.S. § 1106(a). The Sentencing Code, 42 Pa.C.S. §9721(c), provides that ‘the court shall order the defendant to compensate the victim of his criminal conduct for the damage or injury that he sustained.’ 42 Pa.C.S. §9721(c). The ordering of restitution is further defined by 18 Pa.C.S. § 1106(a). Section 1106(a) sets forth the general rule that ‘upon conviction for any crime . . . wherein the victim suffered personal injury directly resulting from the crime, the offender shall be sentenced to make restitution in addition to the punishment prescribed therefore.’ 18 Pa.C.S. § 1106(a); Commonwealth v. Opperman, supra, 780 A.2d [714,] 718 [(Pa. Super. 2001)].” Commonwealth v. Keenan, 853 A.2d 381, 383 (Pa. Super. 2004).

The term “restitution” is defined as:

“The return of the property of the victim or payments in cash or the equivalent thereof pursuant to an order of the court.” 18 Pa.C.S. §1106(h).

An “offender” is:

“Any person who has been found guilty of any crime.” 18 Pa.C.S. § 1106(h).

The meaning of “victim” is the same “[a]s defined in section 479.1 of the Act of April 9, 1929 (P.L. 177, no. 175), known as The Administrative Code of 1929. The term includes the Crime Victim’s Compensation Fund if compensation has been paid by the Crime Victim’s Compensation Fund to the victim and any insurance company that has compensated the victim for loss under an insurance contract.” 18 Pa.C.S. § 1106(h).

Footnoted in this last definition is 71 PS. §180-9.1, which has been repealed, and in its place is the Crime Victims Act, 18 P.S. §11.101 et seq., which provides the following relevant definitions:

“The following words and phrases when used in this act shall have the meanings given to them in this section unless the context clearly indicates otherwise: ...

“ ‘Direct victim.’ An individual against whom a crime has been committed or attempted and who as a direct result of the criminal act or attempt suffers physical or mental injury, death or the loss of earnings under this act. The term shall not include the alleged offender. The term includes a resident of this Commonwealth against whom an act has been committed or attempted which otherwise would constitute a crime as defined in this act but for its occurrence in a location other than this Commonwealth and for which the individual would otherwise be compensated by the crime victim compensation program of the location where the act occurred but for the ineligibility of such program under the provisions of the Victims of Crime Act of 1984 (Public Law 98-473, 42 U.S.C. §10601 etseq.)....

“ ‘Victim.’ The term means the following:

“(1) A direct victim.

“(2) A parent or legal guardian of a child who is a direct victim, except when the parent or legal guardian of the child is the alleged offender.

“(3) A minor child who is a material witness to any of the following crimes and offenses under 18 Pa.C.S. (relating to crimes and offenses) committed or attempted against a member of the child’s family:

“Chapter 25 (relating to criminal homicide).

“Section 2702 (relating to aggravated assault).

“Section 3121 (relating to rape).” 18 P.S. §11.103.

While the standards by which a decision whether to award restitution, and in what amount, clearly differ in juvenile and criminal proceedings (In the Interest of R.D.R., 876 A.2d 1009, 1016 (Pa. Super. 2005) (quoting Commonwealth v. S.M., 769 A.2d 542, 544 (Pa. Super. 2001), appeal denied, 567 Pa. 741, 788 A.2d 375 (2001))), we can discern no substantial difference between what restitution consists of or its purpose under the two systems. This is especially true when comparing juvenile restitution with restitution imposed as a condition of probation or parole.

“In the context of a criminal case, restitution may be imposed either as a direct sentence, 18 Pa.C.S. § 1106(a), or as a condition of probation, 42 Pa.C.S. §9754. When imposed as a sentence, the injury to property or person for which restitution is ordered must directly result from the crime. See 18 Pa.C.S. § 1106(a); Harner, 533 Pa. at 21, 617 A.2d at 704.” In the Interest of M. W., 555 Pa. at 511, 725 A.2d at 732. “To determine the correct amount of restitution, a ‘but for’ test is used — damages which occur as a direct result of the crime are those which should not have occurred but for the defendant’s criminal conduct.” Commonwealth v. Gerulis, 420 Pa. Super. 266, 288, 616 A.2d 686, 697 (1992), appeal denied, 535 Pa. 645, 633 A.2d 150(1993).

When imposed as a condition of probation or parole, the court has the authority and discretion to make the defendant account for all direct and indirect damages caused by his conduct. Harner, 533 Pa. at 22-23 and n.3, 617 A.2d at 707 and n.3 (“the broader discretion granted to a sentencing court that chooses to impose restitution as a condition of parole, 42 Pa.C.S. §9754(c)(8), vests the court with an equally broad power to determine what the fruits of the crime are.”); see also, Commonwealth v. Kelly, 836 A.2d 931 (Pa. Super. 2003) (discussing the distinction between a direct and an indirect loss in the context of the crime of receiving stolen property (RSP): the value of the property received by the offender is a direct loss; when, however, there is no evidence that the recipient of the stolen property was the one who broke into a truck from which the property was taken, the damage to the truck is an indirect and not a direct loss of the crime of RSP); see also, Harner, supra (holding that even though the costs of private investigators, legal fees and expenses for trips to Louisiana incurred by a father in trying to locate children taken by their mother who was convicted of interference with custody of children, 18 Pa.C.S. §2904, were not directly caused by the mother’s conduct in violating section 2904, being neither an essential element of the crime nor a loss that naturally flowed from the conduct forming the basis of the crime for which the mother was convicted, and were not properly imposed as restitution as part of a direct sentence, such costs were the proper subject of restitution as a condition of probation). “Thus, the requirement of a nexus between the damage and the offense is relaxed where restitution is ordered as a condition of probation.” In the Interest of M.W., 555 Pa. at 512, 725 A.2d at 732.

As between these two measures of restitution in the criminal system, the Pennsylvania Supreme Court concluded:

“As is apparent from the face of section 6352, the rehabilitative policy of the Juvenile Act’s restitution provision corresponds to that which supports the imposition of restitution as a condition of probation in a criminal case. Section 6352, unlike the provision of the Crimes Code providing for restitution as a condition of sentence, does not contain language specifically requiring that the loss or injury be a direct result of the juvenile’s wrongful conduct. Consistent with the protection of the public interest and the community, the rehabilitative purpose of the Juvenile Act is attained through accountability and the development of personal qualities that will enable the juvenile offender to become a responsible and productive member of the community. See 42 Pa.C.S. §6301(b)(2). Thus, the policies underlying the Juvenile Act and its restitution provision, as well as the plain language of section 6352, serve to invest the juvenile court with a broad measure of discretion to apportion responsibility for damages based upon the nature of the delinquent act and the earning capacity of the juvenile.” In the Interest of M. W., 555 Pa. at 512, 725 A.2d at 732-33.

Because of this similarity we believe it appropriate, as did the Supreme Court in In the Interest of M. W, to consider the meaning of restitution in criminal proceedings as a guide to answering the threshold question before us. These statutes tell us what restitution is, that only a victim is eligible to receive restitution, that a victim is any person who suffers injury as the result of a crime, and that the only person injured by a crime who is ineligible to receive restitution is one who has been convicted of committing the crime. Absent from this exclusion is any reference to a co-participant. Compare 18 U.S.C. §3663(a)(1)(A) (federal restitution statute preventing criminal participants from being defined as victims for certain offenses); Or. Rev.Stat. §137.103(5) (2006) (Oregon restitution statute stating “ ‘victim’ does not include any co-participant in the defendant’s criminal activities.”); Utah Code Annotated §76-3-201 (e)(ii) (2005) (Utah restitution statute stating “ ‘Victim’ does not include any co-participant in the defendant’s criminal activities.”); see also, State v. Clinton, 890 P.2d 74, 75 (Ariz. 1995) (trial court improperly refused to order an adult offender to pay restitution to unindicted participant victim; state restitution statute is not limited to only innocent victims but benefits all victims).

In accordance with the foregoing, as to the first issue before us we find that an uncharged co-participant injured in the commission of a crime is eligible to receive restitution and that, therefore, the imposition of restitution in this case would be lawful. This conclusion holds only that restitution may be awarded to a co-participant, not that it must be, or should be, the decision on whether restitution will be awarded being one for the court in its exercise of discretion, having in mind the primary purpose of restitution: rehabilitation of the juvenile.

“As a sentence, or a condition of sentence, imposed following a criminal conviction, an order of restitution is not an award of damages.... While the order aids the victim, its true purpose, and the reason for its imposition, is the rehabilitative goal it serves by ‘impressing upon the offender the loss he has caused and his responsibility to repair that loss as far as it is possible to do so.’ State v. Stalheim, 275 Or. 683, 689, 552 P.2d 829, 832 (1976); see State v. Mottola, 84 N.M. 414, 504 P.2d 22 (1972). Thus, a court’s concern that the victim be fully compensated should not overshadow its primary duty to promote rehabilitation of the defendant.” Commonwealth v. Galloway, 302 Pa. Super. 145, 161, 448 A.2d 568, 576 (1982) (quoting Commonwealth v. Fuqua, 267 Pa. Super. 504, 508, 407 A.2d 24, 26 (1979)); see also, Commonwealth v. Mourar, 349 Pa. Super. 583, 604, 504 A.2d 197, 208 (1986) (en banc) (explaining that restitution is not intended to be a substitute for a civil remedy, is not an award of damages — the two having different objectives, and that a sentence of restitution cannot be enforced by the victim but only by the district attorney in the criminal courts), vacated on other grounds, 517 Pa. 83, 534 A.2d 1050 (1987).

B. Propriety of Restitution

Having found that restitution may be awarded to M.R., we must now determine whether an order of restitution is appropriate in this case and, if so, in what amount. An award of restitution under the Juvenile Act, unlike under either the Crimes Code or Sentencing Code, is uniquely discretionary with the court, both as to the decision to award restitution and as to the amount of restitution awarded. In exercising this discretion, the court must consider four mandatory criteria:

“(1) The amount of loss suffered by the victim; (2) The fact that defendant’s action caused the injury; (3) The amount awarded does not exceed defendant’s ability to pay; [and] (4) The type of payment that will best serve the needs of the victim and the capabilities of the defendant.” In the Interest of Dublinski, 695 A.2d 827, 829 (Pa. Super. 1997) (quoting Commonwealth v. Valent, 317 Pa. Super. 145, 149, 463 A.2d 1127, 1128 (1983)).

Ultimately, the decision rests on the court’s assessment of whether a properly structured order of restitution will promote the development and rehabilitation of the juvenile into a responsible, law-abiding individual. To accomplish these ends, “[t]he policies underlying the Juvenile Act and the plain language of section 6352 invest the juvenile court with a broad measure of discretion to apportion responsibility for damages based upon the nature of the delinquent act and the earning capacity of the juvenile.” In the Interest of R.D.R., 876 A.2d at 1014.

As to C.W.M. ’s earning capacity, taking into account his “mental ability, maturity and education; [his] work history . . . ; the likelihood of [his] future employment and extent to which [he] can reasonably meet a restitution obligation; the impact of a restitution award on [his] ability to acquire higher education and thus increase [his] earning capacity; and [his] present ability to make restitution” (In the Interest of Dublinski, 695 A.2d at 830), we believe that C.W.M. has the ability to earn money and to pay restitution and that an order requiring regular, fixed payments to compensate for M.R.’s loss is an important means of making C.W.M. understand and bear the consequences of his conduct, part of the process of rehabilitation. We further believe, after considering the circumstances of the accident and the extent of losses suffered by M.R., that the injuries to M.R. were not intended; that C.W.M. did not act alone, M.R. and two other persons having also participated in the crimes which caused M.R. ’s injuries; and that C.W.M. has already been ordered to pay restitution for property damage in the amounts of $3,565 (in the related case docketed to no. 124 TV 2005) and $1,352.50 (in an unrelated case docketed to no. 191 JV 2005), that an award of restitution in the amount of $5,000, with minimum monthly payments of $100, is both reasonable and appropriate, and within his means.

The periodic and continuing nature of these payments will remind C.W.M. that he will be held accountable for his conduct and its effects on M.R., and that one of these consequences is financial. At the same time, we believe the amount of these payments will not threaten C.W.M.’s intent to attend college, a goal we hope C.W.M. will keep. By also holding C.W.M.’s parents potentially responsible, as we intend to do, for unpaid restitution in an amount not to exceed the statutory limit in the event C.W.M. fails to pay the amount of restitution ordered by age 21, C.W.M.’s parents have an incentive to check on their son’s progress and to encourage his compliance.

In language relevant to the form and type of payments we intend to order, the court in In the Interest of J.E.D. quoted the trial court as follows:

“[T]he $19,377.95 ordered as restitution, although a substantial amount for a [17]-year-old, may be paid off over a period of years. Pursuant to 42 Pa.C.S. §6352 (a)(5), the court has the authority to retain jurisdiction over the child until the restitution is paid in full or the child reaches the age of 21. If the child reaches the age of 21 prior to satisfying the restitution debt, the court may continue to collect any unpaid amount. 42 Pa.C.S. §9728. As long as the amount of restitution is related to the harm suffered by the victim, §§6352(a)(5) and 9728 permit the court to set a monetary amount that, although it may be currently [nonjpayable in a lump sum, may be paid off over time.” Id., 879 A.2d at 292 (also ordering that the juvenile’s parents would be held responsible for restitution in the event the juvenile failed to make the required payments). In In the Interest of J.E.D. the Superior Court further cited with approval the trial court’s recognition that the juvenile’s ability to pay would increase overtime, an observation equally applicable here. Id. at 292.

CONCLUSION

The rehabilitative policies underlying the Juvenile Act — focusing first on restitution’s effect on the offender, and encompassing within its grasp all victims, not only innocent victims — combined with C.W.M.’s conduct being a direct cause of M.R.’s injuries and C.W.M.’s agreement to make reparation, all justify an order of restitution. At the same time, M.R.’s participation in the criminal episode which caused his injuries, together with two other individuals, none of whom have been held leT gaily accountable for their conduct; the unintended nature of M.R. ’s injuries; the magnitude of the damages sustained by M.R.; C.W.M.’s limited resources and separately existing obligation to make restitution to others — including C.W.M. alone being held responsible for restitution for the property damage to the car in which M.R. was injured; and the possibility of compensation being paid by the Crime Victim’s Compensation Fund, convince us that while C.W.M. has a responsibility for which he should be properly held accountable, ordering restitution for the full amount of actual damages sustained by M.R. would disproportionately saddle C.W.M. with a debt he cannot afford, the consequences of which would be punitive, not rehabilitative. Instead, restitution in the amount of $5,000, subject to the terms previously stated, accounts not only for C.W.M.’s ability to pay, but also for the nature and circumstances of the crime, including the responsibility of others who have not been required to share in the payment of restitution.

      . We refer to M.R. throughout this opinion as a “co-participant” rather than as an “accomplice” or “co-conspirator” in the alleged crimes since M.R. has not been charged nor found guilty of any of the underlying crimes.

      . Even then, the connection cannot be speculative or overly tenuous. “[RJestitution is permissible only as to losses flowing from the conduct for which the defendant has been held criminally accountable.” Commonwealth v. Mourar, 349 Pa. Super. 583, 608, 504 A.2d 197, 211 (1986) (Johnson, J., concurring and dissenting) (quoting Commonwealth v. Cooper, 319 Pa. Super. 351, 356, 466 A.2d 195, 197 (1983)), vacated on other grounds, 517 Pa. 83, 534 A.2d 1050(1987). “This is based upon the rationale that due process of law is denied when the losses for which restitution has been imposed did not arise from the very offense for which the defendant was convicted.” Id.

      . It is also not insignificant that C.W.M. agreed to the payment of restitution for M.R.’s injuries as part of a negotiated plea agreement. See/n the Interest of M. W., 555 Pa. 505, 513, 725 A.2d 729, 733 (1999) (holding, in part, that a defendant’s voluntary decision to pay restitution as part of a negotiated plea agreement supported the propriety of the restitution order).

      . Restitution under section 1106(c) ofthe Crimes Code, 18Pa.C.S. §1106(c), and section 9721(c) of the Sentencing Code, 42 Pa.C.S. §9721 (c), is mandatory, without regard to the offender’s ability to pay. Commonwealth v. Colon, 708 A.2d 1279, 1280 (Pa. Super. 1998). “Only upon default is defendant’s ability to pay to be considered. 42 Pa.C.S. §9730.” Id. at 1284.

      . In this case, C.W.M. was ordered to pay restitution for property damage caused under circumstances similar to those which occurred here — damage to a stolen vehicle taken for a joy ride on August 20, 2005. In that case, C.W.M. was adjudicated delinquent for criminally conspiring to commit theft by the unlawful taking of moveable property, 18 Pa.C.S. §3921(a).

      . 23 Pa.C.S. §§5503 and 5505.

      . “Restitution and reparation mean different things. Restitution ordinarily refers to compensation for the wrongful taking of property, reparation, to compensation paid for injury or damage. Section 1106 of the Crimes Code uses the term restitution to describe both types of compensation. Section 1354(c)(8) of the Sentencing Code, however, specifically refers to restitution or reparation. In this opinion the term restitution refers to both restitution and reparation.” Commonwealth v. Fuqua, 267 Pa. Super. 504, 507 n.5, 407 A.2d 24, 26 n.5 (1979); see also, Commonwealth v. Walton, 483 Pa. 588, 595 n.10, 397 A.2d 1179, 1183 n.10 (1979) (to the same effect).

      . At the time of the restitution hearing, the Commonwealth indicated that application had been made on behalf of M.R. to the Crime Victim’s Compensation Fund and that although some assistance was anticipated from this source, the exact amount was unknown.