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THOMAS A. CARDAMONE v. UNIVERSITY PITTSBURGH AND INSURANCE COMPANY NORTH AMERICA (04/13/78)

decided: April 13, 1978.

THOMAS A. CARDAMONE, APPELLEE,
v.
UNIVERSITY OF PITTSBURGH AND THE INSURANCE COMPANY OF NORTH AMERICA, APPELLANTS



No. 231 April Term, 1977, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, Entered on November 6, 1976 at No. G.D. 76-13770, in Equity

COUNSEL

Wilbur McCoy Otto, Pittsburgh, with him Stewart M. Flam, Pittsburgh, for appellants.

Louis M. Tarasi, Jr., Pittsburgh, with him John Alan Conte, Pittsburgh, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Jacobs

[ 253 Pa. Super. Page 69]

This is an appeal from the chancellor's decree of November 6, 1976 granting a mandatory injunction requiring appellant, the University of Pittsburgh, to contribute $2,000 per

[ 253 Pa. Super. Page 70]

    month towards appellee's medical expenses.*fn1 Appellant contends first, that the lower court erred in finding that appellant had a contractual duty to pay appellee's medical bills and second, that no legal basis existed for the issuance of the mandatory injunction. We agree and therefore vacate the decree of the chancellor.

Appellee, Thomas Cardamone, was gravely injured on October 19, 1972, when he fell from gymnastic equipment which he was using as a member of the University's gymnastics team. Appellee was permanently paralyzed from the neck down and will continue to require extensive medical care throughout his lifetime. In response to the enormity of the financial burden resulting from the accident, appellant and appellee signed, on April 12, 1973, a "Letter Memorandum of Expression of Intention and Acknowledgement of Understanding," in which appellant stated its intention to pay all medical bills incurred as a direct result of the accident "for all time or such period of time as the University may determine feasible." Record at 32a. Paragraph 2 of the memorandum enunciated various limitations on, and clarifications of, this intention.*fn2

[ 253 Pa. Super. Page 71]

The University of Pittsburgh paid all of appellee's medical expenses until the fall of 1975, when it announced its intention to cease the payments.*fn3 In June, 1976, appellee filed a complaint in equity and an application for a mandatory preliminary injunction, seeking to compel appellant to continue to defray appellee's medical costs. Following hearings in July and September, 1976, the chancellor handed down a decree nisi granting appellee's application. Appellant's exceptions to the decree were denied and on November 6, 1976 the decree was made final.

The grant of a mandatory injunction is a harsh remedy. Credit Alliance Corp. v. Philadelphia Minit-Man Car Wash Corp., 450 Pa. 367, 301 A.2d 816 (1973). It may only be employed when the plaintiff is clearly entitled to immediate relief and irreparable injury would otherwise result. Roberts v. School District of Scranton, 462 Pa. 464, 469, 341 A.2d 475, 478 (1975), citing, Zebra v. Pittsburgh School District, 449 Pa. 432, 296 A.2d 748 (1972). In determining whether the chancellor erred in issuing a mandatory injunction in favor of appellee, the scope of our review is restricted. It is axiomatic that the factual conclusions of the chancellor have the force of a jury verdict and will not be disturbed on appeal unless they are not supported by adequate evidence. Chatham ...


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