author: POPOVICH, Judge:

text:
    466 A.2d 209
    Martha CHRISTMAN, Executrix of the Estate of Jacob F. Christman, Appellant, v. DRAVO CORPORATION and Johns-Manville Corporation, a corporation.
    Superior Court of Pennsylvania.
    Argued July 12, 1983.
    Filed Sept. 30, 1983.

      Alfred S. Pelaez, Pittsburgh, for appellant.
    Alan Shapiro, Pittsburgh, for appellees.
    Before CERCONE, President Judge, and HESTER, CAV-ANAUGH, WICKERSHAM, ROWLEY, WIEAND and PO-POVICH, JJ.
   POPOVICH, Judge:

This is an appeal by the appellant, Martha Christman, from the Order of the Court of Common Pleas of Allegheny County (per Judges McGowan and Narick) granting a Motion For Summary Judgment on behalf of appellee, Dravo Corporation (hereinafter Dravo or appellee). We affirm.

In this jurisdiction, a ruling on a motion for 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.” Pa.R.Civ.P. 1035(b). In Wilk v. Haus, 313 Pa.Super. 479, 460 A.2d 288 (1983), a panel of this Court elaborated upon the standard to be utilized in ruling on a motion for summary judgment:

“The language of Rule 1035, adopted in 1966, was taken verbatim from Federal Rule of Civil Procedure 56(c). Interpretation of the scope of Rule 1035 can be aided by reference to the cases decided under the Federal rule, which establish the following criteria. On motion for summary judgment the Court must consider the entire setting of the case and all the papers that are included in the record ... One who moves for summary judgment has the burden of demonstrating clearly that there is no genuine issue as to any material fact ... The Court must consider both the record actually presented and the record potentially possible at the time of trial .... A hearing on a motion for summary judgment is not a trial on the merits, and the Court on such motion should not attempt to resolve conflicting contentions of fact ... The court is to accept as true all well pleaded facts in the plaintiffs pleadings, as well as the admissions on file, giving to the plaintiff the benefit of all reasonable inferences to be drawn therefrom ... The record must be examined in the light most favorable to the nonmoving party .... In passing upon a motion for summary judgment it is no part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. All doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for summary judgment____ A party should not be deprived of an adequate opportunity to fully develop (sic) his case by witnesses and a trial, when the issues involved make such procedure the appropriate one ____ It is often the case that although the basic facts are not in dispute, the parties in good faith may nevertheless disagree about the inferences to be drawn from these facts, what the intention of the parties was as shown by the facts ... Under such circumstances the case is not one to be decided by the Trial Judge on a motion for summary judgment.”

Id., 313 Pa.Superior Ct. at 482, 460 A.2d at 289-290.

With the preceding in mind, we will now “consider the entire setting of the case and all the papers that are included in the record.” Id. To-wit, on November 7, 1979 appellant, in her capacity as executrix of the estate of her husband (Jacob F. Christman), filed a Complaint in Trespass and Assumpsit against Dravo and Johns-Manville. Therein, as is relevant to the case at bar, appellant alleged:

FOURTH: During a period of time from 1942 to 1945, the plaintiffs decedent worked for Dravo Corporation as a mechanic/welder at Neville Island, Pennsylvania. During the course of his duties, the decedent worked with and around asbestos products believed to have been supplied by the defendant, Johns-Manville, and supplied to the decedent by Dravo Corporation.
FIFTH: As a result of the decedent’s exposure to the asbestos products, he developed an insidious lung condition that eventually was diagnosed as mesothelcoma [sic —mesothelioma] [on May 8, 1978]. This disease resulted in the decedent’s death on February 21, 1979.

Furthermore, premised upon the grounds of negligence, breach of an implied warranty of merchantability and strict liability under Section 402A, appellant demanded judgment against Dravo and Johns-Manville in an amount in excess of $10,000.00. In response, Dravo filed preliminary objections in the nature of a demurrer, a motion to strike or, alternatively, a motion for a more specific complaint. In relevant part, Dravo’s preliminary objections raised the following points:

1. ... The Complaint alleges that plaintiffs decedent was an employee of DRAVO CORPORATION who sustained exposure to asbestos products during a period of his employment with DRAVO and subsequently developed an insidious lung condition which resulted in the decedent’s death on February 21, 1979 ____
2. DRAVO demurs to the Complaint which avers that the plaintiff’s decedent was an employee of DRAVO and that the disease which resulted in the decedent’s death developed as a result of the decedent’s exposure to asbestos products during the period of the decedent’s employment with DRAVO. This action cannot be maintained against DRAVO. The plaintiff’s exclusive remedy is under the Pennsylvania Workmen’s Compensation Act or the Federal Longshoremen’s and Harborworkers’ [sic] Compensation Act.

After oral argument and upon the submission of briefs, the trial court dismissed Dravo’s preliminary objections in the nature of a demurrer and a motion to strike; however, the court directed the appellant to file an amended complaint setting forth, inter alia, “the specific grounds on which [appellant] contended] that the within claim [was] removed from the Pennsylvania Workmen’s Compensation Act[.]” In compliance therewith, appellant stated in Count I, Paragraph 6, of the Amended Complaint that she was entitled to bring suit in state court against Dravo “by virtue of the fact that th[e] claim [was] removed from the Pennsylvania Workman’s [sic] Compensation Act under the authorization of 77 Pa.C.S. Ann. § 412____”

Because of the relevancy to the ultimate determination on the summary judgment motion, we observe that in the answers to Johns-Manville’s interrogatories requesting the identity of all past employers in whose employ appellant’s decedent “came in contact with asbestos,” as well as the job title and work description, appellant responded:

a) 1942-1945—Dravo Shipping Company, Neville Island Pittsburgh, PA 15222. Ship Yard, East Yard—outfitting dock. During thei [sic] period he was exposed to asbestos[.]
b) Worked as a welder/mechanic—in hold of ship where they were putting up insulation, the asbestos was from Johns-Manville.
Dravo—Neville Island Ship Yark [sic]—outfitting dock worked on the waters in the hold of the ship.
Dravo, Neville Island, Pennsylvania, Ship Yard, East Yard worked on the water on the outfitting dock, and down in the hold of the ship without sufficient air exchange.
* * * * *
Welding and mechanic on outfitting dock on the water, in hold of ship where he walked on the insurlation [sic] and the insulation was being put into the rooms of the ship. (Appellant’s “Answers to Interrogatories” for Johns-Man-ville, Numbered 42(a) & (b), 43(a) & (b), 44(d))

Additionally, in the “Supplemental Answers to Interrogatories” requested by Johns-Manville, appellant reaffirmed her previous assertions that:

The plaintiff’s decedent between the years 1942 and 1945 worked for Dravo Corporation at Neville Island, Pennsylvania. During this time, decedent assisted in the construction of motor vessels, which, as part of the construction, required the use of asbestos materials furnished by defendant [Johns-Manville].
(Appellant’s “Supplemental Answers to Interrogatories,” Numbered 113)

However, albeit Dravo admitted in its answers to appellant’s interrogatories that from 1941 to 1945 the major portion of the ships that it built (over 145 LST-type vessels) were for the Bureau of Ships of the United States Navy and asbestos was used as pipe insulating material in the construction of motor vessels at the Neville Island building docks, Dravo could only answer that it was “unknown” whether the decedent worked with or in the vicinity of asbestos products in performing his duties in any of the positions which he held with the corporation. (Dravo’s “Answers to Interrogatories,” Numbered 7, 13 & 17) Dravo did not deviate from this position. In answer to appellant’s Amended Complaint (Count I, Paragraph 4—which averred that during decedent’s employment for Dravo he “worked with and around asbestos products____”), Dravo retorted:

4. With respect to the averments of Paragraph 4, it is admitted that within a period of time between 1942 and 1945, plaintiff’s deecedent [sic] worked for DRAVO as a mechanic and as a fitter at Neville Island, Pennsylvania. After reasonable investigation, DRAVO is without knowledge or information sufficient to form a belief as to the truth of the averment that, during the course of his duties, the decedent worked in and around asbestos products supplied to DRAVO, by the defendant, JOHNS-MANSVILLE, [sic] and supplied to the decedent by DRA-VO. Accordingly, strict proof thereof is demanded at trial. (Dravo’s “Answer and New Matter to Amended Complaint,” Count I, Paragraph 4)

Moreover, of relevancy here is the fact that on April 3, 1979, prior to the commencement of the instant action, appellant filed a “Widow’s Claim for Death Benefits” with the Office of Workers’ Compensation Programs, Employment Standards Administration of the United States Department of Labor under the Longshoremen’s and Harbor Workers’ Compensation Act (hereinafter the Longshoremen’s Act or Act). 33 U.S.C.A. §§ 901 & 913(d). The claim was being contested by Dravo and their insurance carrier, Zurich Insurance Company. 33 U.S.C.A. § 914(d). Their position was, “No entitlement established.” Thus, at issue was the question of coverage, as well as matters dealing with the statute of limitations, injury and cause of death. As of the date of the instant appeal, appellant’s claim for death benefits was still pending (after 4 years) before the Office of the Deputy Commissioner. See note 5, infra.

Given the aforementioned facts, Dravo, on September 9, 1980, filed a Motion For Summary Judgment in which it averred, in essence, that inasmuch as there existed an employer-employee relationship between itself and appellant’s decedent, the Longshoremen’s Act was the exclusive vehicle by which its liability “to the employee or his legal representative” was to be determined. (Dravo’s “Motion For Summary Judgment,” Point 3) In a brief submitted in opposition to appellee’s Motion, appellant argued that, notwithstanding the pending claim under the Longshoremen’s Act, she was not foreclosed from electing to proceed at law or under the Longshoremen’s Act since the employer-appel-lee had failed to secure payment of compensation. To remedy this deficiency, affidavits by Dravo’s Director of Compensation & Risk Management and insurance carrier were submitted to establish that compensation insurance had been obtained pursuant to the dictates of the Longshoremen’s Act.

The trial court, after reviewing all of the evidence, concluded that appellee’s payment of compensation insurance triggered the implementation of the exclusivity provision of the Longshoremen’s Act, and the fact that appellee “was denying [appellant’s] entitlement under the Longshoreman’s [sic] ... Act ... [did not] open[ ] up the way for [appellant] to bring th[e] lawsuit.” (Trial Court Opinion at 2) As a result thereof, summary judgment was entered by Order of the court en banc on December 22, 1980, in favor of the moving party, appellee-Dravo. This appeal followed.

This case presents an issue of first impression in this jurisdiction; i.e., can an employee (or in this instance the legal representative of his estate) maintain an action at law to recover damages against his employer for an injury arising out of and in the course of employment, despite the pendency of an identical claim for benefits before the Deputy Commissioner under the Longshoremen’s Act.

Before addressing the issue at hand, we find it appropriate to discuss the object and purpose Congress sought to achieve with the passage of the 1972 Amendments to the Longshoremen’s Act.

To start with, the Longshoremen’s Act is a comprehensive legislative scheme requiring employers to provide compensation to employees who are disabled or killed in the course of their employment. 33 U.S.C.A. § 901 et seq. A prime purpose of the Longshoremen’s Act is to provide employees with a practical and expeditious remedy for work-related injuries, while limiting the economic burden on employers by providing that their liability under the Longshoremen’s Act shall be “exclusive” of all other liability. 33 U.S.C.A. § 905(a); Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977); Cardillo v. Liberty Mutual Insurance Co., 330 U.S. 469, 476, 67 S.Ct. 801, 805, 91 L.Ed. 1028 (1947); see also Director, OWCP v. Perini North River Associates, 459 U.S. 297, 103 S.Ct. 634, 74 L.Ed.2d 465 (1983). The United States Supreme Court has long held, “Th[e. Longshoremen’s] Act must be liberally construed in conformance with its purpose, and in a way which avoids harsh and incongruous results.” (Citations omitted) Director, OWCP v. Perini North River Associates, supra, 459 U.S. at 315-16, 103 S.Ct. at 647. One of the means by which Congress has sought to achieve such a laudable goal is by “extending] coverage to protect additional workers.” Id. Moreover, the purposes of the 1972 Amendments were to raise the amount of compensation available under the Longshoremen’s Act, to eliminate the longshoremen’s strict-liability seaworthiness remedy against shipowners and to eliminate shipowner’s claims for indemnification from stevedores recognized in Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956). See Director, OWCP v. Perini North River Associates, supra; Edmonds v. Compagnie Generate Transatlan-tique, 443 U.S. 256, 263, 99 S.Ct. 2753, 2757, 61 L.Ed.2d 621 (1979); Anno. 46 ALR Fed. 692 § 2[a]. One of the linchpins of the Act’s compensation scheme is the exclusiveness of the employer’s liability for compensation payments to longshoremen. See Passman v. Companhia de Navegacao Marítima Netumar, 544 F.Supp. 451 (E.D.Pa.1982). The Longshoremen’s Act “thereby strips an employee of the right to maintain a tort action against his employer, if he is compensated for injuries covered by the Act.” (Citations omitted) (Emphasis added) Houston v. Bechtel Associates Professional Corp., 522 F.Supp. 1094, 1095 (D.D.C.1981). Accord Harmon v. Baltimore and Ohio Railroad Co., 560 F.Supp. 914, 915 (D.D.C.1983); 33 U.S.C.A. § 903; cf. Northeast Marine Terminal Co. v. Caputo, supra, 432 U.S. at 251-252, 97 S.Ct. at 2351 (“In ... determining] whether respondents ..., injured while working on the New York City waterfront, are entitled to compensation^] ... we must determine the reach of the 1972 Amendments. The sections of the Act relevant to these cases are the ones providing ‘coverage’ and defining ‘employee.’ ”).

At this stage of the discussion, it is appropriate to make reference to Dravo’s argument that it contests no more than appellant’s entitlement to benefits under the Longshoremen’s Act. “This[, it goes on to urge,] is not a satisfactory foundation for the conclusory statement of [appellant’s] counsel that DRAVO has contested [appellant’s] coverage under the Act.” (Emphasis added) (Appel-lee’s Brief at 7) Appellant counters that Dravo, in fact, has denied coverage in the separate action before the Deputy Commissioner, and, thus, “Dravo has raised a genuine issue of material fact concerning the application of the Act which should preclude the entry of a summary judgment.” (Appellant’s Brief at 3)

As is evident from the disparate arguments of counsel, it is for this Court to decide which “question of fact” needs to be resolved as a condition precedent to entering summary judgment. In making such a determination, we begin by examining the relevant provision of the Longshoremen’s Act; viz.:

§ 905. Exclusiveness of liability
(a) The liability of an employer prescribed in section 4 [33 U.S.C.A. § 904] shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this Act, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under the Act, or to maintain an action at law or in admiralty for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, or that the employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee. (Emphasis added)

At the outset we note that a fair reading of Section 905(a) reveals that it does not afford a claimant-employee (or his legal representative) the option to sue in either federal or state court to vindicate his right to compensation under the Longshoremen’s Act for an injury “arising out of and in the course of employment.” 33 U.S.C.A. § 902(2). Compare Household Consumer Discount Co. v. Vespazini, 490 Pa. 209, 415 A.2d 689 (1980) (Truth-In-Lending Act provides for concurrent jurisdiction); Itri v. Equibank, 318 Pa.Super. 268, 464 A.2d 1336 (1983) (Fair Debt Collection Practices Act provides for concurrent jurisdiction); Richards v. Dravo Corp., 249 Pa.Super. 47, 375 A.2d 750 (1977) (Merchant Marine Act (Jones Act) provides for concurrent jurisdiction); Harrington v. Philadelphia City Employees Federal Credit Union, 243 Pa.Super. 33, 364 A.2d 435 (1976) (Federal Credit Union Act provides for concurrent jurisdiction); Federal Employers’ Liability Act has concurrent jurisdiction (45 U.S.C.A. § 56).

Likewise, this Court concludes that the statute was clearly and precisely written by Congress so as to leave no room for doubt regarding the condition which must be met before a claimant will be afforded the right to sue in state court. In other words, we determine that the “question of fact” to be decided as a sine qua non to entering judgment is not, as appellant would have us believe, whether a claimant is covered and/or entitled to benefits under the Longshoremen’s Act. Rather, the more appropriate inquiry is whether the “employer fail[ed] to secure payment of compensation as required by th[e Longshoremen’s] Act[.]” If such is the case, then the claimant “may elect to claim compensation under the [Longshoremen’s] Act, or to maintain an action at law or in admiralty for damages on account of such injury or death.” 33 U.S.C.A. § 905(a). We find support for such a holding in Jefferson v. SS Bonny Tide, 281 F.Supp. 884 (E.D.La.1968). In Jefferson, the District Court was hearing a motion filed by the employer (American Marine Corporation) and the SS Bonny Tide (a privately owned ship) for summary judgment. After disposing of the employee-Jefferson’s claim that the SS Bonny Tide was a “vessel” subject to a cause of action for unseaworthiness or suit under the Jones Act, the District Court responded to Jefferson’s Section 905(a) argument, which attempted to escape the exclusivity provision of the Longshoremen’s Act, in a fashion that is instructive to the case sub judice; to-wit:

Plaintiff’s contention is that American Marine Corporation, his employer, “failed to secure payment of compensation,” by acting in concert with its compensation insurer in controverting liability to pay compensation in hearings before the Deputy Commissioner. “Failure to secure payment of compensation as required” by the Act, which gives rise to the right of election provided for in § 5[—after 1972 Amendments renumbered without change to subsection (a) of Section 905, 33 U.S.C.], relates to the specific provision of § 32 of the Act, 33 U.S.C. § 932, which requires every employer to “secure the payment of compensation under this chapter” by doing one of two things: (1) taking out insurance with an authorized insurance company to cover possible liability for compensation, or (2) furnishing satisfactory proof to the Secretary of Labor of the employer’s financial ability to pay whatever compensation for which it may become liable. See Thibodeaux v. J. Ray McDermott & Co., 276 F.2d 42 (5th Cir.1960). Clearly, the reference in § 5 to an employer’s failure to “secure payment” relates to the long-range method whereby the employer satisfies the Department of Labor that it can, that is, it has the potential, to pay compensation payments when and if required to do so under the Compensation Act. The language of § 5 does not place any additional burden on the employer who has secured his ability to discharge his burden under the Act to immediately and actually make compensation, payments to individual injured employees at the risk, if he fails to do so, of creating an election in the employee to maintain an action at law or in admiralty. The Act clearly and specifically permits the employer to contest liability for compensation by following certain procedures designed to insure a speedy determination by the Deputy Commissioner of any issues raised. S3 U.S.C. § 914(a), (d), (h), and (i).
* * * * * *
Nor do we think that the attempt by the employer to contest liability for compensation payments could vest in the plaintiff any cause of action other than that for ... the compensation remedy granted by the Act. “Failure to secure compensation” does not include the mere contesting of liability for payment to a particular injured employee, see supra.

(Emphasis added in part)

Id. at 885-886. What is to be gleaned from the aforesaid is that where an employer fails to secure payment of compensation under the Longshoremen’s Act, the injured employee, or his legal representative, in case death results from the injury, has the right to elect to claim compensation under the Longshoremen’s Act or to maintain an action at law or in admiralty for damages on account of such injury or death. Therefore, “[t]he election to proceed to a suit against the employer is available only in the event of the employer failing to secure payment of compensation as provided in the Act. Where an employer has complied with the law, any action on his part to controvert liability in any particular case cannot be construed as ‘failing to secure payment of compensation[,]’ ” 1A Benedict on Admiralty § 29 at 2-27 (Rev. 7th ed. 1982); see also Norris, Martin J., 1 The Law of Maritime Personal Injuries § 63 at 116 (3rd ed. 1975), and, as determined by this Court after assiduously reviewing the legislative history and relevant case law on the subject, does not “creat[e] an election in the employee [or his legal representative] to maintain an action at law or in admiralty.” Jefferson v. SS Bonny Tide, supra, 281 F.Supp. at 885.

Instantly, as is made reference to in Jefferson and Benedict on Admiralty, the employer-Dravo has secured compensation and proof of such a fact is documented in the record (by means of affidavits from Dravo’s insurance carrier and Director of Compensation & Risk Management—whose authenticity and content is not questioned by the appellant). Also, such evidence was considered by the trial court in its decision to grant Dravo’s Motion For Summary Judgment. (See Trial Court Opinion at 1-2) Consequently, to permit the appellant to maintain a suit in state court for damages, absent any evidence that the employer has neglected to secure compensation, would eviscerate the exclusivity provision of Section 905(a) and sanction a circumvention of the Longshoremen’s Act that was not intended, at least from our review of the legislative history, by Congress.

Further, as correctly pointed out by Dravo, under the Longshoremen’s Act workmen’s compensation claims are adjudicated in the first instance before Administrative Law Judges (AU). 33 U.S.C.A. § 919(d). Cases that raise substantial questions of law or fact may be heard by an administrative appeals board, called the Benefits Review Board (Board). Id. at § 921(b)(1) & (3). The three-member Board is a “quasi-judicial” independent body, appointed by the Secretary of Labor, id. at § 921(b)(1); 20 C.F.R. §§ 801.101-103, 801.201 (1978). Petitions for review of Board orders are heard by the United States Court of Appeals, 33 U.S.C.A. § 921(c). Prior to the 1972 Amendments claims under the Longshoremen’s Act were heard in the first instance by deputy commissioners; judicial review was by writ of injunction in the District Courts, 33 U.S.C.A. § 921 (amended 1972), with a right of appeal to the appellate courts, 28 U.S.C.A. §§ 1291-1292. See Northeast Marine Terminal Co. v. Caputo, supra, 432 U.S. at 254 n. 3, 97 S.Ct. at 2352 n. 3; Director, OWCP v. National Van Lines, Inc., 613 F.2d 972, 976 n. 1 (D.C.Cir.1979), cert. denied, 448 U.S. 907,100 S.Ct. 3049, 65 L.Ed.2d 1136 (1980). For the sake of consistence, since all parties make reference to the arbiter of appellant’s compensation claim as the Deputy Commissioner, rather than the more appropriate AU, we have retained that appellation for purposes of our discussion.

Because of the elaborate scheme of review available to an aggrieved claimant and employer, we deem it prudent to refrain from delving into the question of coverage under the Longshoremen’s Act, see Thibodeaux v. J. Ray McDermott & Co., 276 F.2d 42 (5th Cir.1960), and leave such an inquiry to the governmental body specifically created by Congress to deal with the matter. Appellant, who urges us to do otherwise, would have us believe that Dravo is arguing mutually exclusive positions, i.e., if suit cannot be had in state court, Dravo’s contravention of her claim under the Longshoremen’s Act could leave her with nothing. We can neither confirm nor deny such a belief. However, we do know that if appellant’s decedent is held not to be covered under the Longshoremen’s Act (see generally Harmon v. Baltimore and Ohio Railroad Co., supra; Houston v. Bechtel Associates Professional Corp., supra), and, thus, not entitled to benefits, appellant will be afforded the opportunity to have the ruling of the administrative agency (Board) reviewed in the federal courts. See Thornton v. Brown & Root, Inc., 707 F.2d 149 (5th Cir.1983); Todd Shipyards Corp. v. Black, 706 F.2d 1512 (9th Cir.1983) (asbestosis case). Furthermore, it cannot be denied that the dominant intent of Congress in promulgating the Act “was to help longshoremen.” Keller v. United States, 557 F.Supp. 1218, 1222 (D.N.H.1983). Consistent with this philosophy has been the “ ‘strong legislative policy favoring awards in arguable cases,’ ” U.S. Industries/Federal Sheet Metal, Inc. v. Director, OWCP, 455 U.S. 608, 617, 102 S.Ct. 1312, 1319, 71 L.Ed.2d 495 (1982), and the belief that the “ ‘Act must be liberally construed in conformance with its purpose, and in a way which avoids harsh and incongruous results.’ ” Director, OWCP v. Perini North River Associates, supra, 459 U.S. at 315-16, 103 S.Ct. at 647. Thus, it has been “recognized that those employees not covered by the [Longshoremen’s Act] should not get the short end of Congress’ stick.” Burks v. American River Transportation Co., 679 F.2d 69, 75 (5th Cir.1982). Although we have no way of forecasting the outcome of appellant’s trek through the federal appeals process, we can say that, in light of the facts instantly, such a course is mandated by law and this Court has no right to intervene in the journey.

There has been some suggestion on the part of appellant that a ruling on the propriety of her suit in the Court of Common Pleas of Allegheny County be stayed pending the outcome of the Deputy Commissioner’s determination on her request for compensation. She cites us to Greer v. United States Steel Corp., 475 Pa. 448, 380 A.2d 1221 (1977) to buttress her position. (See Appellant’s Reargument Petition)

In Greer, the employee sought common law recovery from his employer for a disease allegedly contracted while on the job. Concurrently with the filing of the common law action the employee submitted a claim for workmen’s compensation. In a portion of the Opinion, the Supreme Court seemed to say, although not unequivocally, that “recovery at common law would not be barred if recovery could not be had under the Compensation Act.” Id., 475 Pa. at 451, 380 A.2d at 1222. In any event, the Supreme Court reversed this Court’s grant of the employer’s petition for a judgment on the pleadings on the basis that, since it could not be ascertained from the pleadings whether the disease came within the purview of the Pennsylvania Occupation Disease Act (77 P.S. § 1201 et seq.), “[i]t m[ight] well be appropriate for the court below to grant a stay pending administrative action in accordance with the doctrine of primary jurisdiction.” Id., 475 Pa. at 453, 380 A.2d at 1223.

We find Greer inapposite for the reason, which is a most compelling one, that our Supreme Court was preoccupied with the interpretation of a state statute and the dire consequences that might befall the claimant-employee if his request for compensation was denied because the disease he had contracted fell outside the perimeter of the statute. In contrast, we are presented with a federal statute that provides in very lucid terms the exact circumstances under which a claimant may bring a suit in state court for damages, that is, if the employer fails to secure insurance the Longshoremen’s Act is not the “exclusive” vehicle by which compensation can be attained.

Therefore, in light of the aforesaid, we are of the view that the trial court was correct in granting summary judgment because appellant-claimant’s exclusive remedy was under the Longshoremen’s Act once the employer-Dravo had established that it had obtained compensation insurance.

Order affirmed.

      . For the sake of clarification, we hasten to mention that an employee’s ability to bring suit in state court for damages against his employer is prohibited by the exclusivity provision of the Pennsylvania Workmen’s Compensation Act (77 Pa.C.S.A. § 481(a) (Supp.1982-83)). See Socha v. Metz, 385 Pa. 632, 635, 123 A.2d 837, 839-840 (1956); see also Turner v. Southeastern Pennsylvania Transportation Authority, 256 Pa.Super. 43, 389 A.2d 591 (1978); Ryden v. Johns-Manville Products, 518 F.Supp. 311, 322, 323-324 (W.D.Pa.1981); Carey v. Electric Mutual Liability Insurance Co., 500 F.Supp. 1227 (W.D.Pa. 1980); cf. Heckendorn v. Consolidated Rail Corp., 502 Pa. 101, 465 A.2d 609 (1983) (In an action brought by an injured employee against a third-party tortfeasor, the employer, because he is statutorily immune from liability, may not be joined by the third party for the purpose of apportioning the employer’s negligence with the negligence of the third party). Interestingly enough, however, the Longshoremen’s Act has "not [been] construe[d] ... to exclude remedies [to a claimant] offered by [state] jurisdictions.” Sun Ship, Inc. v. Commonwealth of Pennsylvania, 447 U.S. 715, 723 n. 4, 100 S.Ct. 2432, 2438 n. 4, 65 L.Ed.2d 458, 465 n. 4 (1980). In other words, the Longshoremen's Act has been interpreted to “supplement[ ], rather than supplant ], state compensation law.” Id. at 720, 100 S.Ct. at 2436, 65 L.Ed.2d at 463. Accord Calbeck v. Travelers Insurance Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962). One may have some justified apprehension in embracing this theory of concurrent jurisdiction espoused by the Court in Sun Ship, Inc. on the ground that it affords a claimant the opportunity to secure double recovery. However, this question was answered by the Court in Sun Ship, Inc. when it observed that such event would not occur “since employers’ awards under one compensation scheme would be credited against any recovery under the second scheme. See, e.g., Calbeck v. Travelers Insurance Co., supra, at 131, 82 S.Ct. 1196, 8 L.Ed.2d 368.” 447 U.S. at 725 n. 8, 100 S.Ct. at 2439 n. 8. As a result, in light of the aforesaid, we caution the bench and bar not to be misled into believing that the Longshoremen’s Act is the "exclusive” method by which an employee of a shipbuilding and/or repair enterprise can seek to recover for injuries sustained on the job. Sun Ship, Inc. The converse is also true. That is, a state compensation law provision indisputably declaring its awards final would not foreclose the use of federal preclusion, if need be, “to pre-empt the state compensation exclusivity clause[.]” Sun Ship, Inc., supra, 447 U.S. at 724 n. 6, 100 S.Ct. at 2438 n. 6.

      . Prior to discussing the merits of this case, we find it necessary to mention that subsequent to the submission of this case to our Court, but before a decision was rendered, co-defendant Johns-Manville filed for bankruptcy and a restraining order was entered by a New York District Court staying all judicial proceedings against Johns-Manville. We find that the case before this Court is not affected by the restraining order since the issue involved here is solely between the two parties, i.e., Martha Christman and Dravo, and is sufficiently isolated from Johns-Manville's debtor status under the Bankruptcy Code. See In re Cloud Nine, 5 B.C.D. 1377, 1 C.B.C.2d 445, 3 B.R. 202 (Bkrtcy.N. M.1980) (state actions involving issues which solely affect co-parties are not necessarily stayed by a restraining order pursuant to 11 U.S.C.A. § 362).

      . "Injury” is defined in Section 2(2), 33 U.S.C.A. § 902(2), as "accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury, and includes an injury caused by the willful act of a third person directed against an employee because of his employment."

      . We wish to point out that both parties go off on extended discussions to reconcile the distinction and/or similarity, depending upon whose brief you read, between "coverage" and “entitlement” to benefits under the Longshoremen’s Act. For our purposes, we wish to comment that “[t]he distinction is purely semantic and does not pose a genuine issue of material fact precluding summary judgment." Harmon v. Baltimore and Ohio Railroad Co., 560 F.Supp. 914, 916 (D.D.C.1983).

      . It is disconcerting to this Court, and thus it needs to be aired here, that four years have elapsed since appellant first filed her claim for benefits under the Longshoremen’s Act. See 33 U.S.C.A. §§ 912 & 913. As of the date of this Opinion neither side has informed this Court whether a ruling (either granting or denying the claim) was entered by the Deputy Commissioner. This seems rather incredulous in light of the time strictures set forth in the Longshoremen’s Act regarding the rendition of a ruling on a claim for benefits. For example, 33 U.S.C.A. § 919 is captioned "Procedure in Respect of Claims.” In subsection (c) of Section 919 it is written:
      The deputy commissioner shall make or cause to be made such investigations as he considers necessary in respect of the claim, and upon application of any interested party shall order a hearing thereon. If a hearing on such claim is ordered the deputy commissioner shall give the claimant and other interested parties at least ten days’ notice of such hearing, served personally upon the claimant and other interested parties or sent to such claimant and other interested parties by registered mail or by certified mail, and shall within twenty days after such hearing is had, by order, reject the claim or make an award in respect of the claim. If no hearing is ordered within twenty days after notice is given as provided in subdivision (b) [of Section 919], the deputy commissioner shall, by order reject the claim or make an award in respect of the claim. (Emphasis added)
      In light of the preceding, and given the fact that the parties have submitted as part of the record a copy of the claim for benefits indicating that at least one hearing was conducted before the Deputy Commissioner, the Court is in a quandary as to why no ruling on appellant’s claim has been rendered. And if a ruling has been issued, why this fact has not been communicated to the Court. If the matter of prompting the Deputy Commissioner to decide appellant’s request for benefits had been pursued more vigorously, assuming for the sake of argument that no ruling has been made, the appeal process could have followed more along the lines originally intended by Congress, see discussion supra, instead of deviating from its intended path and ending up (rather precipitously we might say given our ultimate ruling) in state court in the form of a complaint in trespass and assumpsit.

      . This Court is well aware that in Griffith v. Wheeling-Pittsburgh Steel Corp., 521 F.2d 31 (3rd Cir.1975), cert. denied, 423 U.S. 1054, 96 S.Ct. 785, 46 L.Ed.2d 643 (1976), the Third Circuit Court of Appeals reversed the District Court’s grant of summary judgment on behalf of Wheeling, the pro hac vice owner of the vessel on which appellant-employee was injured. Because there remained various matters that were material in nature, that could not have been conclusively held to have been uncontroverted, the Third Circuit reversed and remanded. Additionally, the Court held that an employer-owner pro hac vice of a vessel could be held liable to a crew member of the barge injured because of someone’s negligence. Thus, Section 905(a) was held to be no bar to a suit against a "vessel” chartered to a pro hac vice owner who was also an employer liable for compensation payments. However, we do not find that Griffith controls the case instantly, despite appellant’s arguments to the contrary, since Dravo was in the business of constructing ships and not owning them pro hac vice.


source: Caselaw Access Project

license: Public Domain

text:
    466 A.2d 219
    COMMONWEALTH of Pennsylvania v. Frank Joseph GUSSEY, Appellant.
    Superior Court of Pennsylvania.
    Argued April 28, 1988.
    Filed Sept. 30, 1983.

      David Abrams, Monroeville, for appellant.
    Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before ROWLEY, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal by the appellant, Frank Joseph Gussey, from the Order of the Court of Common Pleas of Allegheny County finding him guilty of violating 75 Pa.C.S.A. § 3362(a)(2) (Speeding). We affirm.

The facts consist of the following: On June 25, 1981, Trooper Lee Michael Formichella had established a radar site on the Pennsylvania Turnpike at milepost 54.7 in Mon-roeville, Allegheny County. At approximately 5:35 a.m., a red Dodge coupe, bearing Pennsylvania registration, entered the influence of the radar beam at a speed of 80 miles per hour. The posted speed is 55 miles per hour. The Trooper waved the vehicle over, and appellant stopped a short distance down the road. For exceeding the legal speed limit, appellant was issued a citation in compliance with Pa.R.Crim.P. 51 A(l).

Appellant pleaded not guilty to the summary violation and gave notice of his plea to the appropriate authorities, and a hearing was scheduled before John H. Saltón, District Justice, for July 14, 1981. Appellant was given notice of the trial by letter dated July 8, 1981. Pa.R.Crim.P. 55. At the proceedings, both Trooper Formichella and appellant, Who was represented by counsel (David Abrams), testified. At the conclusion of the hearing, the District Justice found appellant guilty and ordered him to pay the amount of the fine ($75.00) and court costs ($15.00).

On July 21, 1981, appellant’s counsel filed a timely notice of appeal from the summary conviction with the prothono-tary of the court of common pleas. Pa.R.Crim.P. 67(a) & (c). As a result thereof, the District Justice submitted a certified transcript of the docket with the Clerk of Courts of Allegheny County (Pa.R.Crim.P. 67(e)), and the case was listed for a de novo hearing on August 31, 1981. Pa.R. Crim.P. 67(f).

Prior to the de novo hearing, counsel for appellant filed an “Omnibus Pretrial Motion” requesting that the court quash the “Citation” and dismiss the proceedings for the following reasons:

a. The provisions of Rule 69 of the Pennsylvania Rules of Criminal Procedure as it relates [sic] to report of disposition in summary offenses under the Vehicle Code has [sic] been violated in that the Magistrate has not executed the Affidavit which appears on the reverse side of the Citation ..., and further, no adjudication appears on said traffic citation, all of which violate the provisions of Rule 69 of the Pennsylvania Rules of Criminal Procedure for summary conviction matters.

At the proceedings, presided over by the Honorable Nicholas P. Papadakos, argument was heard initially on counsel’s complaint that the “Certificate of Disposition,” which appears on the back of the “Citation” issued to the appellant by Trooper Formichella, was incomplete in that the line situated immediately above the legend “Signature of District Justice,” and preceded by the verbiage: “The information contained hereon is true and correct and I have affixed the seal of my office[,]” was blank. This deficiency, according to counsel, resulted in the entry of “no conviction [by] the District Magistrate” because he had “not given an adjudication at this point.” (N.T. 8/31/81 at 3) The court rejected counsel’s argument and proceeded to hear testimony from the only witness to appear (appellant was not present) concerning what transpired on the day in question.

Trooper Formichella’s accounting of the events were not contested by appellant’s counsel, which appear supra. However, when the Commonwealth sought to introduce into evidence a document verifying that the radar equipment utilized by the trooper was certified (by a John E. Griffin of E.I. & L. Instruments) and signed (by a Haddle Rice, engineer in charge of testing) in compliance with the law regarding operability, counsel for appellant objected. He did so on the ground that because the information on the June 25, 1981 document had been “typed,” save for the signatures of Griffin and Rice, the Commonwealth had not established that the document proving accuracy “was, in fact, signed that day.” (N.T. 8/31/81 at 10) In other words, counsel’s position would seem to be that, short of the signators appearing in court and testifying that the date “typed” on the document coincided with the date the radar equipment was tested, the Commonwealth had fallen short of establishing the authenticity of the document so as to permit its introduction into evidence. The trial court did not agree and, accordingly, overruled counsel’s objection.

At the completion of the hearing, the trial court found appellant guilty as charged. Timely post-trial motions were filed and denied. This appeal followed.

Before addressing the merits of appellant’s claims, we note that our scope of review in this case, where the lower court has heard the case de novo, is to determine whether or not the findings of fact are supported by competent evidence and to correct conclusions of law erroneously made. McKay v. Commonwealth of Pa., 52 Pa.Cmwlth. 24, 415 A.2d 910 (1980). Also, the action of the lower court will not be disturbed on appeal except for manifest abuse of discretion. Commonwealth v. McCartney, 2 Pa.Cmwlth. 540, 279 A.2d 77 (1971).

Having set forth the standard of review, we may now proceed to the merits of the claims raised by appellant.

The first issue, which was presented to the trial court in pre and post-trial motions, and, thus, preserved for our review (see Commonwealth of Pa., Depart. of Trans., Bureau of Traffic Safety v. Gross, 16 Pa.Cmwlth. 524, 330 A.2d 302 (1974)), appears in appellant’s brief and consists of the following allegation; viz.:

... that the failure of the District Magistrate to complete the reverse side of the traffic citation ..., namely, the [s]ection that deals with the adjudication and disposition and the subsequent failure of the District Magistrate to execute said Certificate of Disposition and adjudication constitutes a substantial error under the substantive defects provisions of Rule 150(b) of the Pennsylvania Rules of Criminal Procedure [so as to] justif[y] dismissal of the charges in this matter. (Appellant’s Brief at 10-11)

We start by noting that at the time the instant action was commenced Pa.R.Crim.P. 150, and the Comment thereto, read:

RULE 150. Defects in Complaint, Citation, Summons or Warrant
(a) Informal Defects:
No person arrested under a warrant or appearing in response to a summons or citation shall be discharged from custody nor shall any case be dismissed because of any informal defects in the complaint, citation, summons, or warrant, but the complaint, citation, summons or warrant, may be amended at any time so as to remedy any such informality.
(b) Substantive Defects:
If a complaint, citation, summons or warrant contains a substantive defect, the defendant shall be discharged unless he waives the defect. Nothing in this rule shall prevent the filing of a new complaint or citation and the issuance of process in which the defect is corrected in a proper manner.
* sic * * * *
Comment: “Informal defect” refers to errors which do not prevent the substantive content of the document from being plainly understood.
Substantive defects would include those cases in which the defendant’s identity cannot be determined or in which the offense is not properly described.
Any new complaint must be filed within the time permitted by a statute of limitations.

We also make reference to Rule 150 since it may fairly be held that appellant’s contention raises the issue of whether the Rule required his discharge before the trial de novo due to a substantively defective “Citation.”

Assuming, arguendo, that the “Citation” in this case contained substantive defects, the appellant would not have been entitled to a dismissal of the Motor Vehicle Code violation (speeding) for several reasons.

First, the proceeding below was a trial de novo before the Court of Common Pleas of Allegheny County. “De novo review entails, as the term suggests, full consideration of the case anew. The reviewing body is in effect substituted for the prior decision maker and redecides the case. The reviewing court may not, however, change the statutory law under which the original decision was made.” Commonwealth v. Virnelson, 212 Pa.Super. 359, 367, 243 A.2d 464, 469 (1968). Accord Commonwealth v. Krut, 311 Pa. Super. 64, 457 A.2d 114 (1983); Commonwealth v. Kyle, 307 Pa.Super. 446, 453 A.2d 668 (1982); Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981); Pa.R. Crim.P. 67(f).

Second, the instant case is not concerned with a point system suspension, under Section 1538(a) of the Motor Vehicle Code. 75 Pa.C.S.A. § 1538(a).

Third, because of the nature of the de novo trial, the Court of Common Pleas of Allegheny County was not reviewing the District Justice’s summary conviction of the appellant. Rather, the trial judge was to determine whether a violation had taken place under 75 Pa.C.S.A. § 3362, the provision with which appellant was charged with contravening. See Commonwealth of Pa., Depart. of Trans., Bureau of Traffic Safety v. Mislivets, 12 Pa.Cmwlth. 59, 315 A.2d 307 (1974).

Keeping the aforesaid in mind, we find that what was said by the Commonwealth Court in Civitello v. Commonwealth of Pa., Depart. of Trans., Bureau of Traffic Safety, 11 Pa.Cmwlth. 551, 315 A.2d 666 (1974), in dealing with a situation similar to the one confronting us now, to be germane to the manner in which we dispose of the case sub judice; viz.:

The appellant here has raised three issues, none of which are persuasive. First, he asserts that his license was not subject to suspension because no proper report of conviction was transmitted by the justice of the peace. This not being a point-system suspension [case] under the provisions of Section 619.1 of The Vehicle Code, 75 P.S. § 619.1, [repealed by the Act of June 17, 1976, P.L. 162, § 7; reenacted at 75 Pa.C.S.A. § 1531 et seq.,\ and the appellant being entitled to and receiving a hearing de novo before the Court of Common Pleas of Chester County, the propriety of the magistrate’s conviction report is of no moment nor is it entitled to any consideration by the court below or this Court on review.
Next, appellant contends that the Commonwealth failed to sustain its burden of proof at the hearing de novo because the magistrate’s report of conviction was offered but not admitted into evidence. An examination of the record will disclose that the report was not admitted into evidence but, as we have noted, the testimony of the arresting officer provided sufficient evidence to show that appellant had committed the offense of speeding. Accordingly, the record does disclose that the Commonwealth did sustain its burden of proof at the hearing de novo.

Id., 11 Pa.Cmwlth. at 554-555, 315 A.2d at 668.

Instantly, as in Civitello, we are dealing with a hearing de novo before a court of common pleas from a magistrate’s summary conviction of a traffic violation, in which a point-system suspension is not involved. A fortiori, in compliance with Civiletto, this Court need not consider the propriety of the District Justice’s conviction report (“Certification of Disposition”) in deciding whether to affirm the trial court’s decision. We need only look to the evidence adduced at the hearing.

Since the admissibility of the results of the speed timing device utilized by Trooper Formichella in “clocking” the appellant traveling at 80 miles per hour is inextricably tied to the sufficiency of the evidence question, we must, initially, respond to the last of appellant’s claims. That is, “[i]t is submitted by the Appellant that the document which was sought to be introduced and which was allowed to be introduced into evidence over the objection of the Appellant was non-authenticated for the reason that it contained no date as to the execution thereof and, the Commonwealth did not bring in the party who executed same to verify the date of execution.” (Appellant’s Brief at 14)

An examination of the statutory and case law on the subject of authentication of speed timing devices, when aligned against the record at bar, exposes the folly of appellant’s argument. For example, in subsection (d) of Section 3368, captioned “Speed timing devices,” the Legislature promulgated the following criteria for the approval and testing of devices used to gauge the rate of speed of all vehicles on any Commonwealth highway by a police officer:

All mechanical, electrical or electronic devices shall be of a type approved by the department [of transportation of the Commonwealth], which shall appoint stations for calibrating and testing the devices and may prescribe regulations as to the manner in which calibrations and tests shall be made. The devices shall have been tested for accuracy within a period of 60 days prior to the alleged violation. A certificate from the station showing that the calibration and test were made within the required period, and that the device was accurate, shall be competent and prima facie evidence of those facts in every proceeding in which a violation of this title is charged. 75 Pa.C.S.A. § 3368(d).

In Commonwealth v. Gernsheimer, 276 Pa.Super. 418, 419 A.2d 528 (1980), we had occasion to discuss those requirements that need to be met as a condition precedent to introducing evidence secured by means of a speed timing device; to-wit:

We hold that in prosecuting speeding cases where a radar or other electronic device is used to calibrate a defendant’s speed that in order to introduce the result of such into evidence the Commonwealth must offer a Certificate, certified by the Secretary of Transportation or his designee certifying the agency which performs the tests on the devices as an official testing station, and must introduce a Certificate of Electronic Device (radar) accuracy into evidence. The Certificate of Electronic Device (radar) Accuracy must be signed by the person who performed the tests and the engineer in charge of the testing station, must show that the device was accurate when tested by stating the various speeds at which it was tested and the results thereof, and must show, on its face, that the particular device was tested within sixty (60) days of the date it was used to calibrate the particular defendant’s speed.

Id., 276 Pa.Superior Ct. at 423-424, 419 A.2d at 530.

In the case at bar, the testimony of Trooper Formichella, regarding the facts surrounding the issuance of the “Citation” to the appellant, is set forth supra, and, thus, will not be repeated here. However, as to the speed timing device (R-6 model 3416/3439), it is important to recount that the Commonwealth offered into evidence the “certificate of accuracy.” The document contained the signatures of John E. Griffin, of E.I. & L. Instruments, and Haddle Rice, the engineer, both of whom certified “that the radar was testing out perfect” as of June 25, 1981, the same day appellant was cited for speeding. (N.T. 8/31/81 at 9) The Commonwealth next “ask[ed] the Court to take judicial notice that the testing station is one authorized by the Pennsylvania Department of Highways under Volume 10 of the Pennsylvania Bulletin, and also that the radar is the type that is approved by the Department pursuant to the provision of Volume 10 of the Pennsylvania Bulletin.” (N.T. 8/31/81 at 12) The trial court took judicial notice of these facts as it was required to do by the Commonwealth Documents Law. Act of July 9, 1976, P.L. 877, No. 160, § 1; 45 Pa.C.S.A. §§ 501 and 506 (1982 Pamphlet); see also Commonwealth v. Gilbert, 254 Pa.Super. 579, 386 A.2d 101 (1978).

Although in his brief to this Court, as well as in post-trial motions, appellant states that the “certificate of accuracy” contained no date (or was wredated) as to the execution thereof, the record reveals that appellant’s objection at trial was that because the date was “just ... typed in” the authenticity of the document had not been proven, and, consequently, was inadmissible. (N.T. 8/31/81 at 10) However, since the ground for objection to the introduction of the document was specifically stated at trial, “all other reasons for exclusion will be considered as waived, even though the objection urged on appeal, though not made on the trial of the case, was made on argument of a motion for new trial [or in exceptions to a non-jury verdict].” (Footnotes omitted) 2 Henry, Pennsylvania Evidence, § 724. Thus, we consider preserved for our review only the argument that the “certificate of accuracy” was rendered inadmissible because the date appearing thereon was “typed in” rather than manually affixed.

A response to appellant’s assertion need not detain us long, for as we read the statutory section (75 Pa.C.S.A. § 3368(d)) and the case law (see Commonwealth v. Gernsh-eimer, supra) on the subject, we find that the Commonwealth has rigidly adhered to the requirements necessary to verify the accuracy of the speed timing device used by Trooper Formichella. Furthermore, we wish to make it clear that the Commonwealth can utilize any means to fill in the “certificate of accuracy,” i.e., by typing or hand-writing the required data, except for the signatures of the certifying personnel. See generally Commonwealth of Pa., Depart. of Trans., Bureau of Traffic Safety v. Kluger, 12 Pa.Cmwlth. 460, 317 A.2d 686 (1974).

Having disposed of appellant’s complaints, and no other alleged errors having been brought to our attention, we affirm.

      . Both appellant and appellee erroneously label the appeal as one taken from the Order of the Court of Common Pleas of Allegheny County, instead of captioning it as one taken from a judgment of sentence. See, e.g., Commonwealth v. Jonnet, 265 Pa.Super. 315, 401 A.2d 1228 (1979); Commonwealth v. Shelton, 260 Pa.Super. 82, 393 A.2d 1022 (1978); Commonwealth v. Burall, 146 Pa.Super. 525, 22 A.2d 619 (1941); Pa.R.Crim.P. 67. Notwithstanding this palpable error, we affirm the actions of the court below.

      . The same can be said about the line appearing right above the scribe "Magisterial District No.,” which is situated immediately below the place designated for the District Justice’s signature.

      . It needs to be mentioned that counsel for appellant filed both a "Motion in Arrest of Judgment” and “Exceptions to Non-Jury Verdict." He did so because of his admitted confusion as to which avenue to pursue in preserving his client’s post-trial rights, i.e., he did not know whether the Rules of Civil Procedure or the Rules of Criminal Procedure controlled in the instant summary case.
      To clarify the matter, we wish to point out that since the filing of counsel’s post-trial motions Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981) was decided. There, this Court, sitting en banc, held that: "once an appeal is taken to the Court of Common Pleas [from a summary conviction], ... all general provisions of the criminal rules become applicable to the trial de novo unless specifically made inapplicable [—e.g., Rules 1100 and 316].’’ Id., 288 Pa.Superi- or Ct. at 294 & n. 5, 431 A.2d at 1054 & n. 5. Accord Commonwealth v. Pringle, 304 Pa.Super. 67, 450 A.2d 103 (1982); Comment to 1982 edition of Pa.R.Crim.P. 67 ("Upon appeal from a summary judgment and after a finding of guilt at a trial de novo in the court of common pleas, Rule 1123 is intended to require post-verdict motions in the common pleas court.”).

      . In 1981 Rule 150 was amended to clarify when a defendant should be discharged or a case dismissed because of a defect. It provides:

      . Trooper Formichella cited the appellant for traveling 80 m.p.h. in a 55 m.p.h. speed zone, which was in violation of 75 Pa.C.S.A. § 3362. Thus, under 75 Pa.C.S.A. § 1535(a), appellant is susceptible to receiving 4 points because of the ultimate ruling of this Court upholding the trial court’s conviction of the appellant for violating Section 3362.

      . Our thorough review of the record has failed to produce the "certificate of accuracy" which was admitted into evidence at the trial de

        novo. Nonetheless, our ability to rule on appellant’s claim is not hampered, for the testimony given at trial, which is unchallenged by the appellant, accurately reconstructs the document and the condition it was in when produced at the proceedings. Additionally, appellant does not question the existence of the document. Quite the contrary, he admitted to its existence at trial and does so again on appeal. In fact, appellant merely attacks the authenticity of the “certificate of accuracy” on the basis that because the date was typed instead of written by hand it is unauthentic and inadmissible. We do not agree. See discussion infra.

      . We wish to point out that the cases cited by the appellant in support of his position that the absence of the District Justice’s signature warrants a dismissal of the summary conviction are inapposite to the case at bar. E.g., Epps v. Commonwealth of Pa., Depart. of Trans., Bureau of Traffic Safety, 11 Pa.Cmwlth. 544, 314 A.2d 884 (1974). Appellant’s averment is more properly the subject of review when, and if, the Secretary of Transportation suspends his license. At that stage, he can appeal to the court of common pleas and assert that the Secretary of Transportation is precluded from entering such a suspension because the District Justice’s records are not in proper form. Id.; cf. Commonwealth of Pa., Depart. of Trans., Bureau of Traffic Safety v. Kluger, supra; Commonwealth of Pa., Depart. of Trans., Bureau of Traffic Safety v. Hepler, 2 Pa.Cmwlth. 516, 279 A.2d 93 (1971).


author: WATKINS, Judge:

text:
    466 A.2d 225
    Mary P. WAGNER, Administratrix of the Estate of Edward S. Wagner, Jr., Deceased, Appellant, v. The PENNSYLVANIA ASSIGNED CLAIMS PLAN.
    Superior Court of Pennsylvania.
    Argued May 11, 1983.
    Filed Sept. 30, 1983.
    Petition for Allowance of Appeal Denied Feb. 17, 1984.

      Richard C. Angino, Harrisburg, for appellant.
    Jeffrey A. Less, Harrisburg, for appellee.
    Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.
   WATKINS, Judge:

This is an appeal from the order of the Court of Common Pleas, Civil Division, of Dauphin County, which granted appellee’s motion for Summary Judgment.

The appellant, Mary P. Wagner, Administratrix of her husband’s estate, filed this action for declaratory judgment against the Pennsylvania Assigned Claims Plan, the appel-lee herein. Both counsel moved for summary judgment in favor of their respective clients, the relevant facts not being in dispute. Edward S. Wagner, plaintiff’s husband, was killed on January 26, 1977 in a one vehicle accident during the course of his employment. The decedent was driving his employer’s truck when it overturned. He owned no vehicle and therefore did not have an automobile insurance policy. The decedent’s family have received weekly Workmen’s Compensation benefits. A prior action by the plaintiff based on the same facts and circumstances resulted in a Supreme Court opinion holding Mr. Wagner not entitled to benefits from his employers’ no-fault insurer. See Wagner v. National Indemnity Co., 492 Pa. 154, 422 A.2d 1061 (1980). The current proceeding was initiated before the Wagner opinion became law.

The appellant argues an individual injured in a one vehicle accident during the course of employment who does not have his own no-fault insurance policy is entitled to recover against the assigned claims plan pursuant to Section 204(a) of the Pennsylvania No-fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, No. 176, Art. II, 204, 40 P.S. 1009.204(a):

“(a) Applicable security.—The security for the payment of basic loss benefits applicable to an injury to:
(1) an employee, or to the spouse or other relative of any employee residing in the same household as the employee, if the accident resulting in injury occurs while the victim or deceased victim is driving or occupying a motor vehicle furnished by such employee’s employer, is the security for the payment of basic loss benefits covering such motor vehicle or, if none, any other security applicable to such victim;
(2) an insured is the security under which the victim or deceased victim is insured;
(3) the driver or other occupant of a motor vehicle involved in an accident resulting in injury who is not an insured is the security covering such vehicle;
(4) an individual who is not an insured or the driver or other occupant of a motor vehicle involved in an accident resulting in injury is the security covering any motor vehicle involved in such accident. For purposes of this paragraph, a parked and unoccupied motor vehicle is not a motor vehicle involved in an accident, unless it was parked so as to cause unreasonable risk of injury; and
(5) any other individual is the applicable assigned claims plan.”

This case is controlled by a recent opinion of this Court, William Borrell v. Continental Casualty Company, et al., 310 Pa.Superior Ct. 554, 456 A.2d 1074 (1983), wherein this Court held:

“In view of the foregoing, we therefore now hold that where an employee sustains an injury as the result of a motor vehicle accident while operating his employer’s vehicle during the course of his employment, not owning a motor vehicle and being uninsured, that person may recover no-fault benefits from the Pennsylvania Assigned Claim Plan in excess of the recovery provided by the Workmen’s Compensation Act.”

Order reversed and Summary Judgment entered for the appellant; prayer for relief by the appellee is denied.


author: HOFFMAN, Judge:

text:
    466 A.2d 227
    COMMONWEALTH of Pennsylvania v. Charles WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 5, 1983.
    Filed Sept. 30, 1983.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, WIEAND and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends his speedy trial rights under Pa.R. Crim.P. 1100 were violated. We agree and, accordingly, reverse the judgment of sentence.

On November 11, 1977 the criminal complaint was filed. On December 5, 1977 appellant did not appear for a preliminary hearing and a bench warrant was issued. On March 29, 1979, 479 days later, appellant was apprehended. Failure to bring appellant down from prison forced continuances of trials listed for May 15, May 24, and July 11, 1979. The Commonwealth petitioned for an extension of time on July 17, 1979, and the court held a hearing on August 16, 1979 granting an extension and listing trial for September 10, 1979. After subsequent delays, appellant was convicted following a nonjury trial on June 6, 1980. Post-trial motions were denied and this appeal followed.

Appellant contends the lower court erred at the August 16, 1979 hearing by granting an extension beyond the time justified by the Commonwealth’s evidence at the hearing. We agree. Rule 1100 requires that trial commence within 180 days of the filing of the criminal complaint. However, “[i]n determining the period for commencement of trial, there shall be excluded therefrom ... such period of delay at any stage of proceedings as results from ... the unavailability of the defendant____” Pa.R.Crim.P. 1100(d)(3)(ii); Commonwealth v. Gratkowski, 287 Pa.Superior Ct. 492, 430 A.2d 998 (1981). Thus, after excluding from the Rule 1100 period the 479 days during which appellant was unavailable, the Commonwealth was required to bring appellant to trial by September 1, 1979. Its petition for extension of July 17, 1979 was thus timely filed. However, at the hearing on that petition the Commonwealth failed to justify any extension beyond September 1, 1979. To justify an extension beyond the Rule 1100 period the Commonwealth must show on the record either that despite due diligence it is unable to bring the defendant to trial within the prescribed period, or that unavoidable court delay prevents trial within the period. Pa.R.Crim.P. 1100(c); Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979); Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976). Nothing in the record of the cursory August 16, 1979 hearing indicates that the Commonwealth could not commence trial before September 1, and nothing suggests that there was a lack of court dates before then. Because the Commonwealth failed to meet its burden to justify an extension, and because appellant was tried beyond the allowable period, we must reverse the judgment of sentence.

Reversed and appellant discharged.

       Appellant’s present counsel specifically raised the issue of the August 16, 1979 hearing in post-trial motions. Approximately seven months after the denial of those motions, however, appellant’s prior counsel filed a statement of matters complained of on appeal that omitted mention of this hearing. See Pa.R.A.P. 1925. Thus, the lower court did not address the propriety of the August 16, 1979 hearing in its opinion. The record reveals no request to appellant’s present counsel for a statement of matters complained of on appeal. Nor does it reveal any entry of appearance or other basis for prior counsel’s filing such a statement. We cannot hold this issue waived because of prior counsel’s fortuitous intervention, because appellant and his appellate counsel have taken all steps necessary to preserve it.


author: HESTER, Judge:

text:
    466 A.2d 228
    COMMONWEALTH of Pennsylvania v. Joseph D. FARACI, Appellant.
    Superior Court of Pennsylvania.
    Argúed April 14, 1983.
    Filed Sept. 30, 1983.
    Petition for Allowance of Appeal Denied Feb. 27, 1984.

      Robert Melvin Hammond, Warrington, for appellant.
    Stephen B. Harris, Assistant District Attorney, Doyles-town, for Commonwealth, appellee.
    Before HESTER, POPOVICH and HOFFMAN, JJ.
   HESTER, Judge:

On February 12, 1980, appellant, Joseph D. Faraci, his accomplice, Richard Marsden, Arlene Grunmeier and Janet Faraci purchased one-half ounce of methamphetamine in the City of Philadelphia. Thereafter, they purchased several items from a jewelry store before acquiring a room at the Sheraton Motor Inn on Roosevelt Boulevard in Northeast Philadelphia.

During the evening and early the following morning, the foursome watched television, ate, drank beer and injected methamphetamine. Marsden and Grunmeier discussed a .357 Magnum handgun which they knew was located at the Ashwood Apartments situate at 53 Applecross Circle in New Britain Township, Bucks County, Pennsylvania, the residence of the teenage victim, Allen Foard, Jr., and his family. Richard Marsden expressed his intention to obtain the weapon.

Grunmeier checked the foursome out of the Motor Inn in late morning, February 13, 1980. At that time, appellant and Marsden were out seeking a rental car and Janet Faraci departed earlier that morning for work. Shortly after checking out, appellant, Marsden and Grunmeier drove to appellant’s apartment. There, they equipped themselves with two handguns, a sawed-off shotgun and ammunition. The trio then drove to Ashwood Apartments to act upon Marsden’s intention of acquiring the .357 Magnum.

Upon arriving at the victim’s apartment, appellant knocked on the front door while Marsden and Grunmeier waited in the automobile. No one answered; consequently, Marsden and Grunmeier left the vehicle and walked to the door. Marsden used the shotgun to shatter a glass panel immediately to the right of the door. They unlocked the front door, walked inside and proceeded up the steps to the second floor.

Marsden led the way and before appellant and Grunmeier reached the second floor, Marsden turned and alerted them to the fact that the victim was lying on his bed. Grunmeier, thinking the two men would abort their plans, ran downstairs.

Instead, they remained. While she waited in the living room, Grunmeier heard Marsden order the victim to get the .357 Magnum. The victim complied, and shortly thereafter, Grunmeier heard four gunshots in rapid succession. Upon hearing the gunshots, Grunmeier ran to the automobile; appellant and Marsden joined her a few minutes later. As they drove from the scene, Marsden told Grunmeier that he killed Allen Foard, Jr.

Foard died of four gunshot wounds of the head and trunk. Appellant and Marsden were arrested two weeks following the incident and charged with murder, burglary, robbery, theft, possessing instruments of crime, prohibited offensive weapons and criminal conspiracy. Appellant and Marsden were tried separately; Grunmeier was granted immunity in return for serving as a Commonwealth witness. Janet Faraci was not charged.

Following a lengthy trial by jury in the Court of Common Pleas of Bucks County, appellant was found guilty of second-degree murder, burglary, robbery, possessing instruments of crime, prohibited offensive weapons and four counts of criminal conspiracy. He was sentenced to mandatory life imprisonment on second-degree murder and a consecutive term of imprisonment of not less than two nor more than five years on the non-homicide charges. Post-trial motions for new trial and in arrest of judgment were denied. This appeal was timely filed from the judgment of sentence.

Appellant argues first that the trial court erred in denying his request for a continuance of trial. Criminal charges were filed against appellant on February 27, 1980. On March 10, 1980, the trial court assigned the Bucks County Public Defender’s Office to represent appellant; however, due to a potential Professional Code of Ethics violation, this assignment was vacated on March 11, 1980, and Robert M.. Hammond, Esquire, was appointed as private counsel. Sometime thereafter, Mr. Hammond was removed from the case due to appellant’s retention of private counsel.

Private counsel represented appellant at the preliminary-hearing on April 16, 1980, and continued to represent him until May 2, 1980, when his services were terminated and Mr. Hammond was reappointed to represent appellant. Mr. Hammond represented appellant from that point throughout the lower court proceedings. From his second appointment on May 2, appellant’s counsel was given thirteen days to file pre-trial motions and one month to prepare for trial. Trial was scheduled for June 2, 1980. According to appellant, his counsel did not have sufficient time to prepare for a trial of this complex nature as evidenced by a lengthy list of fact and expert witnesses to be used by the Commonwealth, by counsel’s inability to secure the suppression notes from the omnibus motion’s hearing on May 27, 1980 and the notes of testimony of Arlene Grunmeier from the Marsden proceedings.

It is beyond question that the grant of a continuance rests within the sound judgment of the trial court, and its denial of a continuance will not be reversed on appeal absent a palpable abuse of discretion. Commonwealth v. Andrews, 245 Pa.Super. 547, 369 A.2d 762 (1977). Commonwealth v. Warner, 209 Pa.Super. 215, 225 A.2d 98 (1966), cert. den. Warner v. Pennsylvania, 389 U.S. 986, 88 S.Ct. 477, 19 L.Ed.2d 479 (1967). It is not sufficient to point to the number of Commonwealth witnesses and conclude therefrom that preparation will be particularly lengthy. Many of the Commonwealth witnesses were subject to brief direct examination that prompted no cross-examination from defense counsel. Moreover, unlike Commonwealth v. Patterson, 281 Pa.Super. 122, 421 A.2d 1178 (1980), cited by appellant, there is no allegation that the notes of testimony from the suppression hearing and the Marsden proceedings would provide appellant with the means to impeach Commonwealth witnesses. In order to properly reverse for denial of a continuance, there must be more evidence of prejudice than the scheduling of a suppression hearing and co-defendant’s trial shortly prior to appellant’s trial. A simple allegation that more preparation is necessary for investigation and trial preparation will not suffice in demonstrating an abuse of discretion.

Next, appellant maintains that the lower court erred in admitting into evidence the photographs of the victim’s body. Over objection of appellant’s counsel, photographs depicting the victim’s body lying face down on his bedroom floor with his trunk and head inside the clothes closet were admitted into evidence. According to appellant, the inflammatory nature of the photographs outweighed whatever probative value they might have. Appellant believes that the graphic testimony covered every evidentiary point depicted in the photographs; therefore, the photographs were superfluous as well as prejudicial.

Similar to other demonstrative evidence, photographs are admissible if both relevant and competent. Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d 1381 (1980); Commonwealth v. Batty, 482 Pa. 173, 393 A.2d 435 (1978). Unless the trial judge abuses his discretion in admitting photographs of the victim’s corpse, his decision to do so will not constitute reversible error. Commonwealth v. Hudson, supra; Commonwealth v. Petrakovich, 459 Pa. 511, 329 A.2d 844 (1974).

Once photographs are proferred as evidence, the trial judge must first determine whether they are inflammatory; if not, then whether they are admissible depends entirely upon basic evidentiary rules of materiality, relevance and competency. Commonwealth v. Hudson, supra; Commonwealth v. Batty, supra. Here, the trial court impliedly found the photographs to satisfy the fundamental characteristics of admissible evidence and found them not to be prejudicial:

“I have had an opportunity to review the photos and in may judgment they are not in any way inflammatory, and they fairly and accurately depict, according to the officer’s testimony, what he saw when he discovered the body. I will allow them to be exhibited to the jury. N.T. June 6, 1980, p. 652.

In the event photographs are deemed inflammatory, they are properly admissible if their evidentiary value outweighs any prejudicial effect they may have on the jury’s deliberations.

The photographs were black and white, did not reveal macabre details and were viewed by each juror for a period not exceeding ten seconds, and in most cases for a much shorter period. We do not find them prejudicial. Moreover, they assist in depicting the room in which the deceased was killed, the position of the body and show neither his face nor wounds. Photographs of this nature have been deemed admissible. Commonwealth v. Hudson, supra.

It is also appellant’s contention that statements made by his co-defendant, Richard Marsden, following the incident constituted hearsay and were improperly admitted as evidence.

Three days following the incident, appellant and Richard Marsden met with Michael Gleason at appellant’s apartment. The three men were friends and Marsden informed Gleason of their breaking into the Foard apartment to find the .357 Magnum, the confrontation with Allen Foard, Jr., and the striking and shooting of Foard. Mars-den then gave Gleason a duffle bag containing 25 rounds of .22 caliber shells and two holsters and instructed him to discard it. This entire conversation occurred in appellant’s presence. Appellant said nothing; however, Gleason testified that appellant’s demeanor was such that it was obvious that he was familiar with Marsden’s account of the incident and agreed with Marsden’s actions in Gleason’s presence. Appellant contends that Marsden’s statements were not uttered as part of the conspiracy and did not qualify as tacit admissions; therefore, the hearsay rule could not be circumvented. We agree that the conspiracy terminated at some point prior to the meeting with Marsden. The principal acts of acquiring the .357 Magnum and killing Foard occurred three days earlier. The conversation with and instructions to Gleason were acts of braggadocio and perhaps acts of “covering up.” The principal objective had been accomplished and declarations thereafter of a co-conspirator are not admissible against others. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980); Commonwealth v. Porter, 449 Pa. 153, 295 A.2d 311 (1972).

Conversely, we do find that Marsden’s statements and appellant’s silent approval thereof, qualified as tacit admissions and were therefore admissible. Where a person is implicated as a principal in the commission of a crime and is afforded an opportunity to comprehend and deny his involvement, under circumstances not consonant with an exercise of his right of silence under the 5th Amendment, and he fails to speak, the statement and his silence are admissible against him as a tacit admission of guilt. Commonwealth v. Scarborough, 313 Pa.Super. 521, 460 A.2d 310 (1983); Commonwealth v. Coccioletti, 493 Pa. 103, 425 A.2d 387 (1981). This rule is based upon the timeless assumption that ordinarily innocent persons will not sit back complacently while grave and false accusations are hurled against them. Commonwealth v. Myers, 423 Pa. 82, 223 A.2d 296 (1966); Commonwealth v. Bolish, 381 Pa. 500, 113 A.2d 464 (1955).

Marsden specifically recounted the events of the incident. He discussed his, appellant’s and Grunmeier’s breaking into the apartment and walking up the staircase, their discovery of the victim in his bedroom, Marsden’s confronting the victim in the victim’s father’s bedroom, the demand for the gun, the striking of the victim, the four gunshots, and general information concerning prior and subsequent events to the crimes. Appellant was present during this entire conversation and not once, did he utter disapproval. In fact, Gleason observed certain nonverbal responses by appellant which indicated complete support of Marsden’s account. We cannot design a more precise illustration of a tacit admission; nor did appellant’s silence constitute an exercise of 5th Amendment privileges due to the fact that he was not at that time in the custody or presence of police officers. See Commonwealth v. Hubble, 314 Pa.Super. 99, 460 A.2d 784 (1983); Commonwealth v. Schmidt, 452 Pa. 185, 299 A.2d 254 (1973).

Lastly, appellant argues that the lower court erred in sentencing him to a consecutive sentence of two to five years on the non-homicide charges prior to ordering a pre-sentence investigation and report. We agree. Pennsylvania Rule of Criminal Procedure 1403A(2) provides:

The sentencing judge shall place on the record his reasons for dispensing with the pre-sentence investigation report if the court fails to order a pre-sentence report in any of the following instances:
(a) where incarceration for one year or more is a possible disposition under the applicable sentencing statutes; or
(b) where the defendant is less than twenty-one years old at the time of conviction or entry of a plea of guilty; or
(c) where the defendant is a first offender in that he has not heretofore been sentenced as an adult.

For the offenses of burglary, robbery, theft, possessing instruments of crime, prohibited offensive weapons and criminal conspiracy, a period of incarceration in excess of one-year was permissible under the Sentencing Code; consequently, the protections of Rule 1403 A (2)(a) were applicable. The lower court failed to order a pre-sentence report and neglected to state its reasons on the record for dispensing with the report. For these reasons, we remand for re-sentencing on the charges of burglary, robbery, theft, possessing instruments of crime, prohibited offensive weapons and the four counts of criminal conspiracy. See Commonwealth v. Pringle, 304 Pa.Super. 67, 450 A.2d 103 (1982); Commonwealth v. Weldon, 287 Pa.Super. 533, 430 A.2d 1180 (1981). Judgment of sentence affirmed in all other aspects.

Judgment of sentence affirmed in part, reversed and remanded in part.

      . Cory Foard, the victim’s sister, informed Richard Marsden one or two months prior to the incident that the gun was located at the apartment. She offered the gun to him in return for methamphetamine or money. She also asked for Marsden’s assistance in robbing her own residence. At that time, Marsden did not respond.


author: PER CURIAM:

text:
    466 A.2d 233
    Enrico AGOSTI v. Faye D. AGOSTI, Appellant.
    Superior Court of Pennsylvania.
    Argued May 26, 1983.
    Filed Sept. 30, 1983.
    Chere Winnek-Shawer, Indiana, for appellant.
    Wayne Andrew Kablack, Indiana, for appellee.
    Before CAVANAUGH, ROWLEY and CIRILLO, JJ.
   PER CURIAM:

This is an appeal from a final decree in divorce entered August 31, 1981, pursuant to Section 201(d) of the Divorce Code. Act of April 2, 1980, P.L. 63, § 101 et seq., 23 P.S. § 101 et seq. (Supp.1983). Appellant, Faye D. Agosti, raises three issues on appeal:

I. Did the trial court err in the disposition of the marital property?
II. Did the trial court err in the amount of child support awarded to appellant for the parties’ minor son?
III. Did the trial court err in refusing to award appellant alimony?

Issues I and III have been waived since no exceptions were filed to the trial court’s final decree, in contravention of Pa.R.C.P. 1920.52(a). Issue II, however, has not been waived since Pa.R.C.P. 1920.52(b) imposes no similar requirement on claims involving child support.

With respect to Issue II, appellant contends: (1) that the amount of support ordered by the trial court was inadequate in view of the minor son’s special needs occasioned by his mental retardation, (2) that the record relied on by the trial court was devoid of any credible evidence concerning appellee’s income or ability to pay, and (3) that the trial court erred in simply reconfirming the earlier order of child support which had been made together with a prior order for spousal support.

In Shank v. Shank, 298 Pa.Super. 459, 444 A.2d 1274 (1982), our court stated that:

... in evaluating support orders, our scope of review is limited to ascertaining whether there was sufficient evidence to sustain the order and whether there has been an abuse of discretion by the lower court Berry v. Berry, 278 Pa.Super. 30, 419 A.2d 1340 (1980); Commonwealth ex rel. Hall v. Hall, 243 Pa.Super. 162, 364 A.2d 500 (1976). Where the record demonstrates that the lower court has failed to consider all factors relevant to the award of support, we will remand for a full evidentiary hearing. Pawol v. Pawol, 298 Pa.Super. 29, 437 A.2d 974 (1981).

Id. 298 Pa.Super. at 462, 444 A.2d at 1276.

In the final decree entered August 31, 1981, the trial court directed appellee to pay $175.00 a month towards the support of the parties’ then eight year old son, Enrico C. Agosti II, who lived with appellant. In its opinion filed in conjunction with the final decree, the trial court stated that it had, on its own, consolidated the support action previously brought by appellant at No. 167 D.R.D.1976 with the divorce action brought by appellee at 1799 C.D.1980, and that it was incorporating in the divorce decree the assessment of $175.00 a month which had been established by a prior order of support. Although the trial court indicated that it was aware that the parties’ son had some kind of “learning difficulties,” it asserted an inability to evaluate those difficulties with respect to the issue of support since “neither party saw fit to explain to the Court” the “precise nature” of the same.

It is true that neither appellant nor appellee discussed in any depth the mental condition of their son, nor the economic ramifications his disability imposed, at the hearing held before the trial court on July 1, 1981. However, that hearing was purportedly held to address the issues raised by the parties in the divorce action filed at 1799 C.D.1980. Those issues only encompassed the grounds for divorce, alimony, custody and distribution of the marital property. The trial court never advised the parties at that hearing that it intended to consolidate the support action with the divorce action, nor that the question of child support would be addressed in the final decree. Consequently, the testimony adduced at the July 1, 1981, hearing was not directed towards that issue.

It is obvious that any mental difficulties the minor child might have would be “relevant” in fashioning an award of support. So too would be appellee’s ability to pay the amount of support ordered. Because the record is lacking on these key factors, we are unable to render a proper evaluation of appellant’s claims. Consequently, we must remand the case for a full evidentiary hearing on the issue of child support. See Shank, supra.

Case remanded.

Jurisdiction is relinquished.

      . It is worthwhile to note that Pa.R.C.P. 1910.10, in conjunction with Pa.R.C.P. 1910.1 l(k) and 1910.12(g), makes the filing of exceptions unnecessary where a final order of support is involved.

      . The fact that appellant was unrepresented by legal counsel at the hearing, and was denied a continuance until such legal counsel could be obtained, in part explains the inadequate record in this case.

      . Although there is testimony in the record concerning appellee’s income (RR 29a), that testimony, as given by appellee, is not extensive nor was it subject to cross-examination.


text:
    466 A.2d 235
    In re ESTATE OF Paul CIAFFONI, Deceased. Appeal of Elizabeth Ciaffoni COWDEN, Executrix, and Pittsburgh National Bank, Administrator D.B.N.C.T.A.
    Superior Court of Pennsylvania.
    Argued April 28, 1983.
    Filed Sept. 30, 1983.

      See also 498 Pa. 267, 446 A.2d 225.
    Mark W. Vita, Washington, for appellants.
    Linda R. Tallent, Washington, for Unborn, participating party.
    Robert J. Ciaffoni, Washington, participating party, in propria persona.
    Before ROWLEY, POPOVICH and HOFFMAN, JJ.
   PER CURIAM:

Paul Ciaffoni (decedent) left a substantial estate consisting primarily of real property. Included in the estate was certain property situated on Horne Boulevard in the City of Arnold, Westmoreland County. Under a Will dated May 10, 1968, and probated December 16, 1973, the Arnold City property was devised to the decedent’s grandson, Paul A. Ciaffoni, for his natural life, with remainder to his issue living at the time of his death. The validity of the will is still being litigated. As of this date, no distribution has been made of any estate assets. Subsequent to decedent’s death, the above-mentioned property was condemned by the Westmoreland County Housing Authority. Pursuant to the Eminent Domain Code, the Westmoreland County Housing Authority made an offer, without prejudice, in the amount of $50,000.00 plus interest. The money was paid into a Mellon Bank N.A. savings account, no withdrawal being permitted without order of the Court of Common Pleas of Washington County, Orphans’ Court Division.

On March 25, 1982, decedent’s personal representatives (appellants) filed a petition with the court requesting that the proceeds of the account be distributed to them in order to pay death taxes. The petition was denied. This appeal followed.

We hold that the court erred in denying the petition. The trial court apparently relied on two sections of the Probate, Estates and Fiduciaries Code: 20 Pa.C.S.A. § 3351, which limits the sale of specifically devised real property, and 20 Pa.C.S.A. § 3541, which gives specifically devised or bequeathed property priority of distribution. Neither of these sections is applicable to this case.

The real property in question has been involuntarily converted into personal property. All that the ultimate devi-sees are entitled to is cash, which is fungible.

At this time, the estate desparately needs cash. There remains unpaid $200,000.00 in Federal Estate Tax and $20,-000.00 in Pennsylvania Transfer Inheritance Tax. Interest is accruing on the federal tax liability at the rate of 20% per year and on the Pennsylvania tax liability at the rate of 6% per year. It clearly is in the best interest of everyone connected with the estate to have the tax liability reduced. In view of the extensive litigation involving this estate, however, it is unlikely that appellants will be able to sell any of the non-specifically devised real property in the near future. Therefore, they should be able to use the condemnation proceeds to reduce the tax debt.

We understand appellee’s concern that the interests of the minor and unborn remaindermen be protected. Therefore, we direct the trial court to enter an order requiring appellants to give adequate security for the amount of the fund which is used to pay estate obligations. The court is also directed to require that the fund be used solely for the payment of death taxes.

Order reversed. Case remanded for further proceedings consistent with this opinion.

Jurisdiction relinquished.

POPOVICH, J., concurs in the result.