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decided: April 13, 1978.


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


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 Communications, Inc. v. General Press Corp., 463 Pa. 292, 297, 344 A.2d 837, 840 (1975). "Only if it is plain that no grounds exist to support the decree or that the rule of law relied upon was palpably

[ 253 Pa. Super. Page 72]

    erroneous or misapplied will we interfere with the decision of the chancellor." Roberts v. School District of Scranton, 462 Pa. 464, 469, 341 A.2d 475, 478 (1975). In the instant case we are constrained to vacate the chancellor's decree because we conclude that the law of contracts was misapplied in several important respects.

Despite an extended discussion of the doctrine of promissory estoppel,*fn4 it is clear that the chancellor considered the memorandum signed by the parties on April 12, 1973 to be a valid contract supported by adequate consideration on both sides.*fn5 With this we cannot agree. Consideration is an essential ingredient of a contract*fn6 and a promise unsupported by consideration is unenforceable in the absence of justifiable detrimental reliance by the promisee. Stelmack v. Glen Alden Coal Co., 339 Pa. 410, 14 A.2d 127 (1940). We must, therefore, determine whether, as the chancellor held, the memorandum constituted a binding contract.

Appellee contends that appellant's promise*fn7 to pay his medical expenses was given in exchange for past

[ 253 Pa. Super. Page 73]

    services rendered to the University or as consideration for appellee's forbearance in instituting a suit for damages. Neither of these constitutes consideration sufficient to create a binding contract. Services rendered by appellee, as a student athlete, prior to the execution of the agreement, furnish no basis for holding that there was a binding legal agreement since past consideration is insufficient. Erny v. Sauer, 234 Pa. 330, 83 A. 205 (1912); Wimer v. Overseers of Poor of Worth Township, 104 Pa. 317 (1883). These services were neither rendered nor bargained for in exchange for appellant's promise to pay appellee's medical bills. While forbearance from proceeding with a lawsuit may constitute good consideration for an agreement, Travelers Insurance Co. v. Hartford Accident and Indemnity Co., 222 Pa. Super. 546, 294 A.2d 913 (1972), it must be bargained for and given in exchange for the promise made by the promisor. Schroyer v. Thompson, 262 Pa. 282, 105 A. 274 (1918). In the instant case it is clear that appellant neither intended nor wished to deter appellee from instituting any possible action for damages. Paragraphs 2.(C) and (D) of the memorandum specifically and unambiguously provide that the agreement is in no way intended to influence or prevent any legal remedy otherwise available to appellant.*fn8

In the absence of consideration, appellee contends that appellant's promise is enforceable under the doctrine of promissory estoppel. It is true that a promise

[ 253 Pa. Super. Page 74]

    unsupported by consideration may nevertheless be enforced in order to remedy a manifest injustice. Fried v. Fisher, 328 Pa. 497, 500, 196 A. 39, 41 (1938).*fn9 In order for the doctrine to apply, however, the following criteria must be met: (1) the promisor must make a promise that he should reasonably expect to induce a definite action or forbearance on the part of the promisee; (2) the promise must actually induce such action or forbearance; and (3) injustice can be avoided only by enforcement of the promise. Restatement of Contracts, Section 90. See Fried v. Fisher, 328 Pa. 497, 501, 196 A. 39, 42 (1938). The first of these criteria is obviously not satisfied in this case. Nothing was present in the agreement which appellant should reasonably have expected to induce appellee to forbear from bringing a suit for damages against it or any third party or from seeking alternative aid. To the contrary, the language of the memorandum discourages such reliance and, indeed, warns against it.*fn10

While the language of the agreement furnishes no basis for invoking the doctrine, appellee asserts that certain statements made by appellant's counsel following the execution of the document induced him to delay instituting his suit in trespass and assumpsit.*fn11 Specifically, appellee points to counsel's statement that any in-depth discovery would impede possible settlement negotiations. This statement contained no promise upon which appellee could justifiably rely in failing to proceed to trial. Any forbearance at this point

[ 253 Pa. Super. Page 75]

    was due to a desire to expedite settlement and was a strategic decision made by appellee.

Appellee finally invokes Sections 323 and 324 of the Restatement (Second) of Torts as a legal basis for the granting of the injunction.*fn12 Neither of these sections provides a remedy for appellee. It would be ironic if we were to hold, as appellee urges, that appellant's discontinuation of aid left appellee in a worse position than when payments were first begun or that appellant negligently performed its gratuitous aid. Appellant has in fact enabled appellee to obtain life-sustaining medical aid for more than three years and has permitted a gradual, albeit incomplete, process of adjustment to the trauma of becoming a quadraplegic.

It is evident that appellee requires constant medical attention and that he will suffer great harm if no means of continuing this treatment can be found. Before a mandatory injunction can be issued requiring appellant to finance this treatment, however, it must be established that appellant had a duty to do so and that the potential harm to appellee will be caused by appellant's failure to perform that duty. The theories advanced by appellee fail to establish a

[ 253 Pa. Super. Page 76]

    clear legal right to financial support by appellant. We of course express no opinion concerning the proper outcome of the pending suit at law for monetary damages.

The decree of the chancellor is, therefore, vacated.

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