author: POPOVICH, Judge:

text:
    450 A.2d 91
    Roger MILLER, Administrator of the Estate of Leon C. Miller, Deceased and Roger Miller, Administrator of the Estate of Marie B. Miller, Appellant v. UNITED STATES FIDELITY AND GUARANTY COMPANY.
    Superior Court of Pennsylvania.
    Argued Feb. 10, 1982.
    Filed Sept. 3, 1982.
    Petition for Allowance of Appeal Granted Jan. 14, 1983.

      Louis J. Stack, Meadville, for appellant.
    John W. Beatty, Erie, for appellee.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the Court of Common Pleas of Crawford County granting a summary judgment to the appellee-United States Fidelity and Guaranty Company (U.S.F. & G.). We reverse.

The principle issue raised is whether appellant, the duly named administrator of the decedents’ (his mother’s and father’s) estates, is entitled to the payment of “work loss” benefits to those estates pursuant to the provisions of the Pennsylvania No-Fault Motor Vehicle Insurance Act. This issue was first dealt with in the appellate division of this Commonwealth in Freeze v. Donegal Mutual Insurance Co., 301 Pa.Super. 344, 447 A.2d 999 (1982), wherein the decedent’s father, acting as administrator of his eleven-year-old son’s estate, appealed the lower court’s order denying the deceased’s estate the right to collect “work loss” benefits under the No-fault Act. We reversed.

Instantly, after careful review of the statutory and case law on the subject, we are of the opinion that the lower court erred in granting summary judgment in favor of U.S.F. & G.; accordingly, we reverse and remand for further proceedings consistent with this opinion.

The facts are not in dispute. Leon and Marie Miller were fatally injured in an automobile accident occurring in Mead-ville, Pennsylvania, on August 12, 1978. At that time, both decedents were wage earners and were insured by the appellee, U.S.F. & G., in accordance with the No-fault Act.

Following the accident, the appellant applied for no-fault “work loss” benefits by submitting reasonable proof of the fact and amount of the work loss sustained by each decedent. U.S.F. & G. refused payment of the claim on the theory that “work loss” benefits are payable only to spouses or dependent relatives of deceased victims. In particular, appellee, in its Answer and New Matter, contended that the “Plaintiff Estates [were] not and d[id] not represent any victims or survivors as defined in 40 P.S. Section 1009.103. The [appellee] further allege[d] that the Plaintiff Estates [were] not, and d[id] not represent any victims or survivors of a deceased victim which would be entitled to receive basic loss benefits or work loss benefits as defined in 40 P.S. Section 1009.201. Consequently, the [appellee] deniefd] that it owe[d] any benefits whatsoever, which it ha[d] not already paid, to the Plaintiff-[appellant].” The lower court, by Opinion and order entered June 18, 1981, granted appellee’s Motion for Summary Judgment.

As stated supra, the crux of the case is whether the Legislature intended the personal representative of a decedent’s estate to recover, under the No-fault Act, “work loss” benefits when there is no “survivor” of the decedent? Appellee’s, U.S.F. & G.’s, contend that “work loss benefits are due and owing to estates of deceased victims only if the distributees of the estate are a spouse, or a dependent relative.” (Appellee’s Brief at 3) On the other hand, appellant asserts “all deceased victims are entitled to recover work loss benefits regardless of who asserts the claim. Proof of dependency by the personal representative forms no part of the calculation of the accrued economic detriment which work loss is designed to compensate.” (Appellant’s Brief at 6) The former view has been embraced by at least four different courts of common pleas, while the latter position has been espoused by an equal number of courts of this Commonwealth.

Before deciding the question posed, it is necessary to set forth some of the definitional terms utilized in the No-fault Act which are germane to the case at bar, and then to review the manner in which such terms have been interpreted by the Courts. We begin with an examination of the right to basic loss benefits under the No-fault Act, which are paid to “any victim or any survivor of a deceased victim” if an accident resulting in injury to the victim (which encompasses bodily harm resulting in death—40 P.S. § 1009.103 (Supp. 1981-82)) occurs in this Commonwealth. 40 P.S. § 1009.201(a). Two types of basic loss benefits are “Work Loss” and “Survivors Losses”:

“§ 1009.202 Basic loss benefits
* * * * * *
(b) Work loss limits.—Work loss, as defined in section 103 shall be provided:
(1) up to a monthly maximum of:
(A) one thousand dollars ($1,000) multiplied by a fraction whose numerator is the average per capita income in this Commonwealth and whose denominator is the average per capita income in the United States, according to the latest available United States Department of Commerce figures; or
(B) the disclosed amount, in the case of a named insured who, prior to the accident resulting in injury, voluntarily discloses his actual monthly earnings to his obligor and agrees in writing with such obligor that such sum shall measure work loss; and
(2) up to a total amount of fifteen thousand dollars ($15,000).
# * * sj« * sjc
(d) Survivors losses.—Survivors loss, as defined in section 103 shall be provided in an amount not to exceed five thousand dollars ($5,000).”
40 P.S. § 1009.202(b) & (d).

Work Loss is defined by Section 103 of the No-fault Act as follows:

“ ‘Work loss’ means:
(A) Loss of gross income of a victim as calculated pursuant to the provisions of Section 205 of this Act;[] and
(B) Reasonable expenses of a victim for hiring a substitute to perform self-employment services, thereby mitigating loss of income, or for hiring special help, thereby enabling a victim to work and mitigate loss of income.” 40 P.S. § 1009.103.

As for Survivors losses, the relevant definitions in regard thereto are:

“ ‘Survivor’ means:
(A) spouse; or
(B) child, parent, brother, sister or relative dependent upon the deceased for support.
‘Survivor loss’ means that:
(A) loss of income of a deceased victim which would probably have been contributed to a survivor or survivors, if such victim had not sustained the fatal injury; and
(B) expenses reasonably incurred by a survivor or survivors, after a victim’s death resulting from injury, in obtaining ordinary and necessary services in lieu of those which the victim would have performed, not for income, but for their benefit, if he had not sustained the fatal injury, reduced by expenses which the survivor or survivors would probably have incurred but avoided by reason of the victim’s death resulting from injury.”
40 P.S. § 1009.103.

The most recent pronouncements in this Commonwealth on the scope of the preceding terms appeared in this Court’s opinion in Heffner v. Allstate Insurance Co., 265 Pa.Super. 181, 401 A.2d 1160 (1979), which was affirmed by our Supreme Court in a consolidated appeal sub nom., Allstate Insurance Co. v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980). We note also, at the outset, that this Court held in Freeze v. Donegal Mutual Insurance Co., supra, 301 Pa.Super. at 354, 447 A.2d at 1004, that “the estate of a deceased victim is entitled to recover work loss benefits under the No-fault Act.” (Footnote omitted) Such pronouncement would seem to dispose of the insured’s “dependency” argument instantly. Nonetheless, we take this occasion to elaborate upon, and hopefully clarify somewhat, the rationale for one’s entitlement to “work loss” benefits under the No-fault Act.

We start off our discussion with an examination of Heffner v. Allstate Insurance Co., supra. Therein, Delores Heffner’s husband was fatally injured when the vehicle he was driving struck a utility pole. Mrs. Heffner filed a claim with decedent’s insurer, Allstate, to recover funeral expenses, survivor’s loss benefits and “work loss” benefits. A complaint in assumpsit was filed by Mrs. Heffner to secure the “work loss” benefits. The lower court granted Allstate a judgment on the pleadings, Mrs. Heffner appealed the order and we reversed, holding that Mrs. Heffner was entitled to recover “work loss” benefits as the survivor of a deceased victim.

It can be argued that Heffner v. Allstate Insurance Co., supra, is not dispositive of whether a decedent’s estate needs to establish “dependency” as a condition precedent to recovery of “work loss” benefits, since in Heffner the claimant was the decedent’s spouse, who, under the No-fault Act, is “not required to present any evidence of dependency in order to qualify as a survivor[,]” entitled to basic loss benefits. Wercoch v. Liberty Mutual Insurance Co., 287 Pa.Super. 45, 51, 429 A.2d 712, 715 (1981). In Pontius v. United States Fidelity and Guaranty Co., the case consolidated with Heffner to the Supreme Court, the administrator of the decedent’s estate was seeking to recover “work loss” benefits. However, the administrator (Homer S. Pontius) was also the decedent’s spouse and qualified as a “survivor” under the No-fault Act. Despite the factual distinctions appearing in the cases consolidated for review in Heffner with the case at bar, we, nonetheless, find Heffner to be instructive in that the Court, in making its findings in regard to a survivor’s entitlement to “work loss” benefits, “did not redefine survivor’s loss; [instead, the Court] simply analyzed the distinctions between work loss and survivor’s loss, noting that in the case of a deceased victim the work loss claim is comparable to a survival action and the surviv- or’s loss claim is comparable to a wrongful death action. So viewed, work loss benefits are a separate type of benefit[.]” (Emphasis added) Daniels v. State Farm Mutual Automobile Insurance Co., 283 Pa.Super. 336, 343, 423 A.2d 1284, 1288 (1980), citing Heffner v. Allstate Insurance Co., supra, 265 Pa.Super. at 189-191, 401 A.2d at 1164-1165. In particular, President Judge CERCONE, speaking for the Court in Heffner, held:

“In Pennsylvania damages recoverable in survival actions include medical bills, the victim’s conscious pain and suffering, and his probable lifetime earnings, less his probable lifetime costs of maintenance, discounted to their present value. Skoda v. West Penn Power Co., 411 Pa. 323, 191 A.2d 822 (1963); Murray v. Philadelphia Transp. Co., 359 Pa. 69, 74, 58 A.2d 323 (1948). The proceeds of the action belong to the victim’s estate and are disbursed to his heirs. Frazier v. Oil Chemical Co., 407 Pa. 78, 179 A.2d 202 (1962); Martin v. Swift, 258 F.2d 797 (3d Cir. 1958). In a wrongful death action the damages include the present value of the services the victim would have rendered to his family had he lived, as well as his funeral expenses. Swartz v. Smokowitz, 400 Pa. 109, 161 A.2d 330 (1960); Gaydos v. Domabyl, 301 Pa. 523, 533-34, 152 A. 549 (1930). The persons entitled to recover such damages do not include the victim’s estate generally, but the ‘husband, widow, children, or parents of the deceased, and no other relatives.’ ” (Footnote omitted) (Emphasis added) Heffner v. Allstate Insurance Co., supra, 265 Pa.Super. at 189, 401 A.2d at 1164; see also Allstate Insurance Co. v. Heffner, supra, 491 Pa. at 457-459, 421 A.2d at 635-636.

In other words, in a “survival action” the damages “are measured by the pecuniary loss to decedent and therefore accrue to his estate. Whatever is recovered forms part of deceased’s estate.” (Emphasis in original) Pantazis v. Fidelity & Deposit Co. of Maryland, 369 Pa. 221, 225, 85 A.2d 421, 423 (1952); accord McClinton v. White, 285 Pa.Super. 271, 276, 427 A.2d 218, 221 (1981). In contrast, the damages sought in a “wrongful death action” are “for the benefit of enumerated relatives, measured by the pecuniary loss occasioned to them [.]” Pantazis v. Fidelity & Deposit Co. of Maryland, supra, 369 Pa. at 224, 85 A.2d at 423; McClinton v. White, supra, 285 Pa.Super. at 276, 427 A.2d at 221. Consequently, if one concedes that “survival actions” and “wrongful death actions” can be analogized to the No-fault Act in an effort to ascertain its scope and meaning, see Daniels v. State Farm Mutual Automobile Insurance Co., supra, then the appellant’s theory that the lower court looked to the wrong persons in determining if “work loss” benefits were to be paid is valid. That is, the lower court looked to the beneficiaries, (e.g., the appellant-administrator, who was neither the spouse nor a dependent relative of the deceased victims,) when it should have looked to the victims’ losses, since such were the losses which “work loss” benefits were calculated to compensate. (Appellant’s Brief at 20) Such position is not at odds with a recent treatise that thoroughly examined Pennsylvania’s No-fault Act, in which the author observed:

“In the case of work loss . .. the [No-fault] Act is simply providing a certain measure of Survival Act damage, on a no-fault basis. . .. Similarly, with respect to so much of survivor’s loss recovery as represents contributions to survivors, this is simply no-fault wrongful death recovery.
If, for example, a decedent has an earnings loss net of cost of maintenance of $100,000.00 over the balance of his work-life expectancy, $15,000.00 will be recoverable as ‘work-loss’ and $5,000.00 will be recoverable as ‘survivor’s loss.’ The $80,000.00 balance of economic loss must be sought in a tort action.” D. Shrager, ed., The Pennsylvania No-Fault Motor Vehicle Insurance Act, 112 (1979).

Under the lower court’s view, albeit the administrator of the decedents’ estates is precluded from recovering “work loss” benefits since he is neither a spouse nor a relative “dependent” upon the decedents for support, it “perceive[s] that the work loss of [appellant’s] decedents here is an item of damages for which a residual tort remedy is preserved under Section 301 [40 P.S. § 1009.301(a)(4) ] of the No-Fault Act.” (Lower Court Opinion at 6) We disagree. Upon a close reading of the No-fault Act, we find that, for example, the hypothetical cited in Shrager’s treatise regarding the commencement of “a tort action” to recoup the balance of economic loss not secured pursuant to the No-fault Act is foreclosed under the lower court’s theory of the case. Such position is buttressed by this Court’s response to contentions by the insurer in Heffner that to permit the survivor of a deceased victim to receive all basic loss benefits would result in double coverage and would provide benefits in excess of the economic losses which survivors of deceased victims actually sustained as a result of an accident; to-wit:

“Comparing the scheme for retaining the tort liability system under Section 301 of the No-Fault Motor Vehicle Insurance Act with damages traditionally recoverable in wrongful death and survival actions, a serious difficulty arises under Allstate’s interpretation of the Act—it abolishes the right of a deceased victim’s estate to recover from a tortfeasor the earnings the deceased victim would have contributed to his estate had he survived. This is so because Section 301 only retains traditional tort liability against third persons for lost earnings to the extent that they exceed the monetary limits established by Section 202(b) of the Act, i.e., work loss benefits up to $1,000 per month and $15,000 total. Therefore, in order to recover damages for lost earnings in a survival action against a tortfeasor, the decedent’s estate must prove that the damages have exceeded the limits of its coverage under Section 202(b). Under Allstate’s analysis no decedent’s estate could ever prove this fact because the estate would never qualify for work loss benefits in the first place. The limits are never reached because the coverage is not afforded in any amount to survivors of deceased victims. Ergo, the net result is that the estate of a deceased victim can never recover monetary damages for lost earnings in a survival action.” (Footnotes omitted) (Emphasis in original) Heffner v. Allstate Insurance Co., supra, 265 Pa.Super. at 190-191, 401 A.2d at 1164-1165.

Instantly, as with the insurer’s position in Heffner, under the lower court’s analysis no decedent’s estate could ever prove that the damages sustained by the estate exceeded the monetary limits of its coverage under Section 202(b), because the estate, unless it initially established “dependency” on the decedent, would never qualify for “work loss” benefits in the first place. The limits are never reached because the coverage is not afforded in any amount to estates (where, according to the lower court, “the heirs under the estate do not include ‘survivors’—spouses or financially dependent relatives[ ]”) of deceased victims. “Ergo, the net result is that the estate of a deceased victim can never recover monetary damages for lost earnings in a survival action.” Id., 265 Pa.Superior Ct. at 191, 401 A.2d at 1165. We find that such result does not comport with the intended loss “work loss” benefits were designed to compensate, i.e., the economic detriment the victim sustained as a consequence of his or her injuries. Certainly, it cannot be gainsaid that deceased victims do suffer economic detriment. This recognition has long been a part of our tort law, which affords the decedent’s estate the opportunity to recover for the decedent’s loss of earnings. See, e.g., Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971); Pezzulli v. D’Ambrosia, 344 Pa. 643, 26 A.2d 659 (1942); McClinton v. White, supra; Funk v. Buckley & Co., 158 Pa.Super. 586, 45 A.2d 918 (1946).

Furthermore, we determine that if the Legislature had intended that “work loss” benefits be recoverable by a decedent’s estate only after the establishment of “dependency,” it would have so stated. See D. Shrager, The Pennsylvania No-Fault Motor Vehicle Insurance Act, 109 & 110. Additionally, since insurance statutes are not among those types of statutes designated by our Legislature as requiring strict construction, we are to construe them liberally in order to effect their purpose. Mattia v. Employers Mutual Companies, 294 Pa.Super. 577, 440 A.2d 616 (1982). In assiduously reviewing the No-fault Act, this Court finds no requirement of proving “dependency” in order to recover “work loss”. In fact, in defining “work loss,” the No-fault Act nowhere mentions survivor or survivors; thus, no showing of “dependency” is necessary. See Heffner v. Allstate Insurance Co., supra, 265 Pa.Super. at 187, 401 A.2d at 1162-1163 (“Historically, the courts of this Commonwealth have routinely .. . found coverage for the insured in close or doubtful insurance cases. The tendency has been that if we should err in ascertaining the intent of the legislature or the intendment of an insurance policy, we should err in favor of coverage fór the insured.” (Quoted with approval in Allstate Insurance Co. v. Heffner, supra, 491 Pa. at 455, 421 A.2d 633)). Moreover, appellant-Roger Miller does not request the Court to award the “work loss” benefits to him as a survivor. Rather, Mr. Miller, in his capacity as duly appointed administrator, seeks to secure such benefits on behalf of his parents’ estates. Surely, such estate has suffered a “loss” as that term is defined in the No-fault Act. 40 P.S. § 1009.103. Consequently, in conclusion, we hold that the decedents’ estates are entitled to recover “work loss” benefits of the deceased victims under the No-fault Act, without first having to establish “dependency” upon the deceased victims as a sine qua non to recovery.

The order of the lower court is reversed and the case is remanded for further proceedings to compute the amount of damages to which appellant is entitled.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. §§ 1009.101 et seq. (Supp.1981-82), hereinafter referred to as the “No-fault Act”.

      . Lerch v. State Farm Mutual Ins. Co., (No. 325 January, 1980 Berks County, filed Oct. 2, 1981); Miller v. United States Fidelity and Guaranty Co., (No. A.D. 1980-1055 Crawford County, filed June 18, 1981); Nye v. Erie Ins. Exchange, (No. 5349 S. 1979 Dauphin County, filed April 30, 1981); Ohrin v. Erie Ins. Exchange, (No. 389 S. 1979 Dauphin County, filed April 30, 1981); Haegle v. Pa. General Ins. Co., (No. 1745 February Term, 1980, Philadelphia County, filed-/- /-/).

      . Cillo v. Ohio Casualty Ins. Co., (No. 80-0542 Lycoming County, filed April 24, 1981); Smith v. Motorist Mut. Ins. Co., 129 P.L.J. 389 (1981); Tubner v. State Farm Mut. Auto. Ins. Co., 496 Pa. 215, 436 A.2d 621 (1981); Charney v. Robb, 14 Pa.D. & C.3d 144 (Cambria Co., 1980).

      . Under Section 205 [40 P.S. § 1009.205] a victim’s “work loss” benefits are calculated in regard to the occurrence of the injury, which has been interpreted to encompass death. See note 7, infra.

      . In Daniels v. State Farm Mutual Automobile Insurance Co., 283 Pa.Super. 336, 423 A.2d 1284 (1980), this Court held that “for purposes of determining eligibility for survivor’s loss benefits under the No Fault Act, a minor child is as a matter of law dependent upon a deceased parent.” Id., 283 Pa.Super. at 341, 423 A.2d at 1287.

      . We note that a different result is not mandated by Midboe v. State Farm Mutual Automobile Insurance Co., 495 Pa. 348, 433 A.2d 1342 (1981) (plurality) (O’BRIEN, C. J., filed an Opinion in Support of Affirmance in which ROBERTS and FLAHERTY, JJ., joined; NIX, J., filed an Opinion in Support of Reversal; LARSEN, J., filed an Opinion in Support of Reversal in which KAUFFMAN, J., joined). There, the Court held that the appellant-mother of a deceased minor child was required to prove dependency on the deceased to recover basic loss benefits under the No-fault Act. Since the case dealt specifically with the appellant’s right to “survivor’s loss” benefits under her No-Fault insurance policy, we find that it does not control the case sub judice.

      . Section 103 of the No-fault Act defines “Loss,” in pertinent part, as the “accrued economic detriment resulting from injury ... consisting of, and limited to, allowable expense, work loss, replacement services loss, and survivor’s loss.” Since injury means death, as well as non-fatal injury, Section 103 can be read to mean that work loss is an accrued economic detriment resulting from death. Heffner v. Allstate Insurance Co., supra, 265 Pa.Super. at 188, 401 A.2d at 1163.

      . The lower courts which have espoused the position that the Legislature intended to prohibit the estate of a decedent from recovering for his future loss of earnings under Section 202 [40 P.S. § 1009.202] have done so, principally, on the basis that the Legislature used the word “victim” without also adding “deceased victim” in defining earnings loss. In response to such contention, we note Shrager’s remarks in his work on Pennsylvania’s No-fault Act:
      “Certainly, if the legislature intended to cause such a fundamental erosion in the recovery of economic damages, it could have done so in a more definitive fashion. A further analysis of the applicable sections of the [No-fault] Act is useful.
      ‘Work loss’ is defined in Section 103 as the following:
      (A) loss of gross income of a victim, as calculated pursuant to the provisions of section 205 of the act ...
      The same section defines ‘victim’ as follows

        ‘Victim’ means an individual who suffers injury arising out of the maintenance or use of a motor vehicle; ‘deceased victim’ means a victim suffering death resulting from injury.
      Section 103 defines ‘injury’ as:
      ... accidentally sustained bodily harm to an individual and that individual’s illness, disease, or death resulting therefrom.
      It may be urged that the legislature intended that ‘deceased victim’ would merely be a sub-class of ‘victim’ according to the definitions of the [No-fault] Act and not a separate species of claimants to be treated differently. The legislature specified that ‘deceased victim means a victim,’ while it states that ‘victim’ means an ‘individual.’ Surely, if the legislature had intended to separate ‘victim’ and ‘deceased victim,’ it would have placed ‘deceased victim’ in its own category in the definitional section (Section 103) in alphabetical order and then it could readily have stated ‘a deceased victim is an individual.’

      Even in the definition of ‘survivor’s loss,’ the legislature treats a deceased victim merely as another category of victim. In fact, the terms are used almost interchangeably in Section 103.
      ‘ “Survivor’s loss” means the:
      (A) loss of income of a deceased victim which would probably have been contributed to a survivor or survivors, if such victim had not sustained the fatal injury; and

        (B) expenses reasonably incurred by a survivor or survivors, after a victim’s death resulting from injury, in obtaining ordinary and necessary services in lieu of those which the victim would have performed, not for income, but for their benefit, if he had not sustained the fatal injury, reduced by expenses which the survivor or survivors would probably have incurred but avoided by reason of the victim’s death from injury.’
      Yet other sections of the No-fault Act, including Sections 110(b), 110(c) and 111(a) [40 P.S. §§ 1009.110(b), 1009.110(c) and 1009.-111(a)], use the terms ‘victim’ and ‘deceased victim’ interchange■ably.” (Emphasis in original) Shrager, David S., The Pennsylvania No-Fault Motor Vehicle Insurance Act, 109-110 (1979).
      Along with D. Shrager, our own Supreme Court in Allstate Insurance Co. v. Heffner, supra, 491 Pa. at 453-457, 421 A.2d at 633-635, has also rejected the “victim-deceased victim” dichotomy.


source: Caselaw Access Project

author: WATKINS, Judge:

license: Public Domain

text:
    450 A.2d 98
    Cornelia AUSTIN, Appellant v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY.
    Superior Court of Pennsylvania.
    Argued Sept. 8, 1980.
    Filed Sept. 3, 1982.

      Robert A. Korn, Philadelphia, for appellant.
    Stanley J. Sinowitz, Philadelphia, for appellee.
    Before BROSKY, WATKINS and MONTGOMERY, JJ.
   WATKINS, Judge:

This case comes to us on appeal from the Court of Common Pleas of Philadelphia County, Civil Division and involves plaintiff-appellant’s appeal from an order of the court below which denied his petition seeking to vacate a dismissal pursuant to Locál Rule of Court 350.

The bus accident giving rise to this case occurred on May 10, 1972. On October 19, 1977 the plaintiff’s trespass action was dismissed pursuant to Philadelphia Local Rule of Court 350. On March 3, 1978 plaintiff filed a petition seeking to reinstate the Complaint which was denied by the court below. A petition requesting reconsideration of the matter was filed. It too was denied. An appeal was then taken to this court.

Plaintiff had filed a Complaint in Trespass against the defendant on April 11, 1973. Discovery had proceeded until September of 1974. From that time until September of 1977 the action was inactive. Between July 5, 1977 and July 26, 1977 a copy of Rule 350 was published on four separate occasions in The Legal Intelligencer of Philadelphia County. The rule provided for the dismissal of actions where no activity had taken place for over two years. Since no action nor proceedings had been docketed on this case since 1974 the action was dismissed. The only notice given to the plaintiff’s counsel prior to the dismissal of this action was the publication of Rule 350 in the Legal Intelligencer.

First appellant argues that the dismissal of the suit pursuant to Rule 350 was a nullity because that rule conflicts with Pa.Rule of Civil Pro. 236. In the instant case no personal notice was sent to plaintiff’s attorney regarding this case. The only notice that was provided was the publication of Rule 350 in the Legal Intelligencer. Plaintiff argues that Pa.Rule Civil Pro. 236 requires personal notice and that Rule 350 is invalid.

This issue was decided in Corcoran v. Fiorentino, 277 Pa.Superior Ct. 256, 419 A.2d 759 (1980) wherein Judge Hoffman, writing for the Court, held that Rule 350 does not conflict with Pa.Rule Civil Pro. 236. In Corcoran we excused the late filing of a Petition to Open Judgment by reason of the Prothonotary’s failure to provide Rule 236 notices and then we examined the reasonableness of the explanation provided by the petition for the failure to act. In our case the court below also excused late filing because of lack of Rule 236 notice but it went on to examine the reasonableness of plaintiff’s explanation for her failure to act. In order to open a judgment of non pros: (1) the petition to open must be timely filed; (2) the facts constituting grounds for a cause of action must be alleged; and (3) the reason for the default in proceeding must be reasonably explained. International Telephone and Telegraph Corporation v. Philadelphia Electric Company, 250 Pa.Superior Ct. 378, 378 A.2d 986 (1977).

Turning to the reasons for plaintiff’s failure to act from 1974 to 1977 we find that plaintiff’s excuse for her inactivity was that her counsel moved his office and failed to “follow up” on this case after having read the Rule 350 notice in the Legal Intelligencer. The court below held that: “Such excuse is neither reasonable nor acceptable”. We agree. Even if we assume that plaintiff filed her petition in a timely fashion and established facts setting forth a cause of action we find that plaintiff’s inaction for three (3) years was not “reasonably explained”.

Order affirmed.


text:
    450 A.2d 99
    COMMONWEALTH of Pennsylvania v. George REICHARTER, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1980.
    Filed Sept. 3, 1982.

      Steven E. Wolfe, Levittown, for appellant.
    Sarah Vandenbraak, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, WATKINS and MONTGOMERY, JJ.
   WATKINS, Judge:

This is an appeal by the defendant-appellant, George Reicherter, from the judgment of sentence of the Court of Common Pleas, Criminal-Trial Division, of Philadelphia County, after conviction, non-jury, of theft by receiving stolen property. No written post-verdict motions were filed, but oral motions were argued and denied. The defendant was sentenced to three (3) years probation and fined $50.00.

The trial judge failed to advise the defendant of his right to file post-verdict motions as provided by Pa. Rule of Criminal Procedure 1123 (c).

The questions raised on appeal are as follows: A. The failure to the court below to advise the defendant of his right to file post-verdict motions; B. ineffective assistance of counsel; and C. insufficiency of the evidence.

The facts are as follows: On May 23, 1978, Mr. Edward Cantelmi’s Ford truck was stolen from a Penn Fruit parking lot in Philadelphia. At the time of the theft the truck was equipped with a large camper cap (eight foot long, five and one-half feet wide, and three feet high) bolted to the bed of the pickup truck. This truck, stripped and the camper cap removed, was subsequently discovered on May 28,1978, near the Torresdale train station in Philadelphia. Five hours later the camper cap was discovered on defendant’s lawn, approximately two hundred and twenty-five yards from the location where the truck was found, with defendant and two other males standing nearby.

The complaint concerning the insufficiency of the evidence is without merit. The evidence need only be such as to establish the guilt of the defendant beyond a reasonable doubt. Commonwealth v. Gomori, 192 Pa.Superior Ct. 325, 329, 161 A.2d 649 (1960). The evidence was clearly sufficient for the fact finder to reasonably infer that defendant possessed the camper cap, and knew that it was stolen.

The claims of ineffective assistance of counsel and failure of the court below to advise the defendant of his right to file post-verdict motions are connected as the contention is that counsel was ineffective in failing to object to the oral disposition of post-verdict motions and advise his client of his right to file written motions. The question arises as to whether the defendant, on proper advice, knowingly and voluntarily waived his right to file.

The case is remanded to the court below for an evidentiary hearing to decide whether counsel had advised the defendant of his right to file post-verdict motions and whether the right to so file had been waived. In the event that it is found that no such advice was given and the right was not waived, written motions may be filed, nunc pro tunc. Jurisdiction is relinquished.


text:
    450 A.2d 101
    Carol SEXTON and Dianne Grooms v. James WILSON, Harleysville Insurance Company, W. W. Associates and Regal Premium Finance Company. Appeal of HARLEYSVILLE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1980.
    Filed Sept. 3, 1982.

      Donald B. Scace, Jr., Philadelphia, for appellant.
    Jack Litz, Philadelphia, for appellees.
    Before BROSKY, WATKINS and MONTGOMERY, JJ.
   WATKINS, Judge:

In this appeal the defendant, Harleysville Insurance Company, appeals from the order of the Court of Common Pleas of Philadelphia County dismissing the preliminary objections to a claim of punitive damages for failure to make timely payments in a No-Fault insurance claim.

This precise issue had been disposed of before this Court in prior decisions. See Crusco v. Insurance Company of North America, 292 Pa.Superior Ct. 293, 437 A.2d 52 (1981); Brandon v. State Farm Insurance Company, 284 Pa.Superior Ct. 399, 425 A.2d 1163 (1981); Gurnick v. Government Employees Insurance Company, 278 Pa.Superior Ct. 437, 420 A.2d 620 (1980); Smith v. Harleysville Insurance Co., 275 Pa.Superior Ct. 246, 418 A.2d 705 (1980); D'Ambrosio v. Penna. National Mutual Casualty Insurance Co., 262 Pa.Superior Ct. 331, 396 A.2d 780 (1978).

It is clear that the No-Fault Act makes no provision for an award of punitive damages against an insurer who is alleged to have withheld payment in a just claim. Instead the legislature provided for interest at the rate of 18% per annum for such delays “without reasonable foundation” and the claimant shall be entitled to be paid reasonable attorneys’ fees. 40 P.S. 1009.107(3). Such penalty provisions must be strictly construed. Couch on Insurance 2d, 58.10; 46 C.J.S. Insurance 715, § 1406-09.

The order dismissing the preliminary objections is reversed; and the preliminary objections to the trespass counts is sustained. The case is remanded to the court below for proceedings on the assumpsit action.


text:
    450 A.2d 102
    COMMONWEALTH of Pennsylvania v. Albert Wayne RUDY, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted March 23, 1982.
    Filed Sept. 3, 1982.

      Allen E. Hench, Newport, for appellant.
    R. Scott Cramer, Assistant District Attorney, Duncannon, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   WATKINS, Judge:

The only questions raised by this appeal are whether the court below erred in revoking the defendant’s parole for the technical violation of the parole condition to immediately report a criminal arrest to his parole officer; and the issue of the court below’s alleged failure to fulfill the guidelines set forth in the sentencing code.

The defendant pled guilty to theft by receiving stolen goods on February 4, 1980 and entered a plea of nolo contendere to a second count of theft by receiving stolen property. He was sentenced by Judge Quigley on March 20, 1980 to pay the costs of prosecution of $130, make restitution in the amount of $272, pay to the use of Perry County $250, and undergo imprisonment in the Perry County Prison for a period of not less than four (4) days nor more than twelve (12) months, to be paroled immediately. The parole was reimposed on October 30, 1980.

On March 25, 1981 the Commonwealth applied for revocation of probation on a number of complaints but presented proof only that the defendant failed to immediately advise his probation officer of an arrest in accordance with the provisions of his parole. Admittedly, this is a technical violation but the word “immediately” is easily understood and the court below felt strongly that strict adherence to parole and probation conditions was essential or their use would be meaningless. We agree. Commonwealth v. Holm, 233 Pa.Superior Ct. 281, 335 A.2d 713 (1975); Commonwealth v. Mallon, 267 Pa.Superior Ct. 163, 406 A.2d 569 (1979); Commonwealth v. Newman, 225 Pa.Superior Ct. 327, 310 A.2d 380 (1973). However, after hearing, the court below entered the following order:

“AND NOW, March 25, 1981, this matter having come forward on the application of the Commonwealth for revocation or probation previously imposed by this Court under date of March 20,1980, and reimposed under date of October 30, 1980, and the Commonwealth having presented evidence satisfactory to the Court beyond a reasonable doubt of the Defendant’s failure to immediately advise his Probation Officer of the fact of his arrest, albeit the Probation Department learned fortuitously of the arrest within approximately twenty-four (24) hours of same. Accordingly, the Probation heretofore imposed is revoked and the Defendant committed to the Perry County Prison for the balance of the term remaining on said Probation, unless sooner paroled by the Court.”

The Supreme Court of Pennsylvania in Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), held that a trial court at the time of sentence must “articulate the reasons for the imposition of the sentence”. See also, Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977).

“The requirements of Riggins and Kostka are equally applicable when a court imposes sentence following the revocation of probation.” Commonwealth v. Aldinger, 292 Pa.Superior Ct. 149, 436 A.2d 1196-1199 (1981). See also, Commonwealth v. Plutko, 286 Pa.Super. 400, 428 A.2d 1390 (1981).

However, Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982), an opinion by Mr. Justice Flaherty, joined in by a Concurring Opinion by Mr. Justice McDermott and a Concurring Opinion by Mr. Justice Roberts, joined in by Chief Justice O’Brien and Mr. Justice Nix, is very persuasive that the standards by which colloquys are judged in pre and post sentencing procedures should take into consideration the circumstances surrounding the trial and the information already made available to the defendant during the trial itself together with the colloquy at sentencing. We agree with Mr. Justice McDermott that a review of the many cases in this area have generated confusion in the Courts of Common Pleas of the Commonwealth.

However, in this case, we have been unable to find in the record any colloquy made at the time of the original sentence to probation and no colloquy at the time of the revocation of probation and the imposition of the original sentence.

Under the circumstances of this case, the sentence contained in the order is vacated and the case is remanded for resentencing and articulation of the reasons for the sentence imposed. Compliance is required within sixty (60) days of the date of this opinion. Jurisdiction is retained by this Court pending remand.


author: MONTGOMERY, Judge:

text:
    450 A.2d 103
    COMMONWEALTH of Pennsylvania v. Paula PRINGLE, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 16, 1982.
    Filed Sept. 3, 1982.
    Petition for Allowance of Appeal Denied Jan. 18, 1983.

      Thomas M. Place, Carlisle, for appellant.
    Theodore B. Smith, III, Assistant District Attorney, Car-lisle, for Commonwealth, appellee.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The Appellant, Paula Pringle, files this direct appeal to our Court following her conviction after a non-jury trial, the denial of post-trial motions, and her sentencing on a charge of disorderly conduct. The episode which led to these charges, which will be more fully discussed below, involved the Appellant’s conduct in protesting a friend’s arrest by repeatedly shouting crude epithets at the arresting officers as a large crowd gathered at the scene of the arrest.

On this appeal, she contends that the provisions of the disorderly conduct statute under which she was convicted are unconstitutionally vague and overbroad in violation of the First and Fourteenth Amendments to the United States Constitution. She further argues that the lower court erred in finding that words she used in the incident were both “obscene” and were “fighting words” and that they created a clear and present danger of inciting lawless actions by others. Finally, she maintains that the lower court failed to comply with our Rules of Criminal Procedure in her sentencing.

Prior to examining the various legal issues presented, it is appropriate that we review the factual circumstances which resulted in the charge of disorderly conduct against the Appellant. The record shows that late on the evening of September 28, 1979, an officer of the Shippensburg Police Department was attempting to arrest an unruly person in front of a tavern on a main town square. The subject of the arrest was violently resisting the officer and other officers who arrived to assist in the arrest. During their attempts to subdue the individual, a crowd of approximately fifty (50) people gathered to watch. The Appellant, Paula Pringle, arrived at the scene and recognizing the person being arrested as a friend, became obviously angered at the police officers. She repeatedly shouted “goddamn fucking pigs” at the officers, from various locations in the area. The first arresting officer testified that several times when she stated these words she looked directly at him. He also testified that he was fearful that the Appellant’s conduct, at that time, might motivate some persons in the crowd, including some who had come from the nearby tavern, to interfere with the arrest. Another officer, in addition to hearing the Appellant repeatedly yell “goddamn fucking pigs”, also heard her shout “fucking pig, let him go” more than once. He expressed, the belief that her conduct could have motivated those in the crowd to try to help her friend who was then resisting the arrest. The Appellant was charged with disorderly conduct in violation of the Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 C.P.S.A. § 5503(a)(3). That statute provides, in pertinent part: “A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: ... uses obscene language, or makes an obscene gesture .... ”

As a preface to our discussion of the specific arguments presented on this appeal, we note that we find guidance for the disposition of this appeal in two relatively recent Pennsylvania appellate decisions involving analogous factual situations. In 1980, our Pennsylvania Supreme Court issued an opinion in Commonwealth v. Mastrangelo, 489 Pa. 254, 414 A.2d 54, appeal dismissed, Mastrangelo v. Pennsylvania, 449 U.S. 894, 101 S.Ct. 259, 66 L.Ed.2d 124 (1980). That case involved an appeal by a defendant from a disorderly conduct conviction which resulted from his activities in repeatedly calling a parking meter officer a “fucking pig”, and other profane and insulting names on the public streets. The Court concluded that the defendant was not exercising any constitutionally protested right of free speech in such circumstances and affirmed the conviction. In Commonwealth v. Hughes, 270 Pa.Super. 108, 410 A.2d 1272 (1979), a panel of our Court, in an opinion by Judge Hoffman, reached the same conclusion in reviewing a disorderly conduct conviction. In Hughes, the defendant engaged in unruly conduct which included the shouting of obscenities at members of the general public and at police officers at an early hour of the morning on a public street. In discussing the disorderly conduct statute, Judge Hoffman declared that a person may be guilty of disorderly conduct within the definition of the Act if in the presence of members of the general public he shouts obscenities at police officers, even though his intent may have been to insult the police rather than to cause public inconvenience, annoyance or alarm. 270 Pa. Super, at 111, 410 A.2d at 1274.

In view of the relatively recent pronouncements by this Court and our Supreme Court in cases involving conduct comparable to that engaged in by the Appellant herein, and the discussion in those cases of the application of the disorderly conduct statute, it is unnecessary for us to engage in yet another prolonged recitation of the same principles of law here. Suffice it to state that it is well-settled in our Commonwealth that one may be convicted of disorderly conduct for engaging in the activity of shouting profane names and insults at police officers on a public street while the officers attempt to carry out their lawful duties.

The Appellant, through counsel, has forcefully argued her points before us, and we have given meaningful consideration to such issues. However, we find that each issue raised may be disposed of without difficulty. Her first contention, as set forth earlier in this Opinion, is that our disorderly conduct statute is vague and overbroad, in violation of applicable Amendments to our United States Constitution. Such claims were specifically examined and rejected in Commonwealth v. Mastrangelo, supra, and reference need only be made to the thorough discussion by our Supreme Court of such issues in that case.

The Appellant next contends that the words she used were not “obscene” or “fighting words” and that they did not create clear danger of inciting lawless action by others. It is evident that our Constitutional guarantees of freedom of speech forbid criminal punishment for the use of words or language except within certain limited classes. Gooding v. Wilson, 405 U.S. 518, 521-522, 92 S.Ct. 1103, 1106, 31 L.Ed.2d 408, 413 (1972). In Chaplinsky v. New Hampshire, 315 U.S. 568, 571-2, 62 S.Ct. 766, 769, 86 L.Ed. 1031, 1034-1035 (1942), the Court clearly explained the types of speech which do not enjoy Constitutional protection:

“Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. ‘Resort to epithets or personal abuse is not in any proper sense communication' of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.’ Cantwell v. Connecticut, 310 U.S. 296, 309, 310, 60 S.Ct. 900, 906, 84 L.Ed. 1213, 128 A.L.R. 1352.”

The Appellant has contended that the words she used in verbally abusing the police were not obscene. Cases are cited in which the use of the word “fuck” has been held not to violate statutes regulating the use of obscene words. See Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1970) (where the defendant was arrested and convicted of disturbance of the peace for merely wearing a jacket bearing the inscription “Fuck the Draft”), and Hess v. Indiana, 414 U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d 303 (1973) (where the defendant was convicted of a similar state law violation when he said words to the effect of “we’ll take the fucking street later” during an antiwar demonstration). The holdings in such cases are completely out of context here, where the Appellant’s crude epithets were directed pointedly at the officers. In Cohen, supra, the word in question was merely displayed on the defendant’s clothing, while in Hess, supra, the defendant did not direct his words toward any particular person, and did not speak in a volume louder than the many other persons gathered in the area. As the great Justice Oliver Wendell Holmes wisely observed many years ago: “A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” Towne v. Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 159, 62 L.Ed. 372, 376 (1918). Although in other circumstances the rule is well-established that to be obscene, the words must carry a sexual connotation [See Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), concerning a prosecution for mailing obscene materials], in the context of the instant case, it is clear that in calling the officers “goddamn fucking pigs”, the Appellant used “obscene” language within the contemplated context of the disorderly conduct statute.

Even if the words in issue would not be considered obscene, they certainly constituted “fighting words” and created a risk of public inconvenience, annoyance, alarm and the incitation of lawless behavior. They fit the Supreme Court’s definition of “fighting words” as set forth in the passage quoted earlier in this Opinion from Chaplinsky v. New Hampshire, supra, in that by their very utterance they inflict injury. We also again refer to the holdings of our Pennsylvania Courts in Commonwealth v. Mastrangelo, supra, and Commonwealth v. Hughes, supra, on this point in situations involving similar factual settings. The Appellant’s arguments to the contrary are clearly devoid of merit.

Finally, we turn to the Appellant’s sentencing arguments. She contends that the lower court erred when it failed to place on the record its reasons for dispensing with a pre-sentence investigation. Pennsylvania Rule of Criminal Procedure 1403 A(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 statues; 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 a defendant is a first offender in that he has not heretofore been sentenced as an adult.

It appears that at the time of sentencing, the Appellant was less than 21 years of age and also was a first offender, apparently thereby qualifying for the protections of Rule 1403 A(2)(b) and (c). We believe that the Appellant’s claim based upon Rule 1403 has merit. The lower court unfortunately failed to place in the record its reasons for dispensing with a presentence report. The record shows that the lower court granted the Appellant a hearing and resentencing after she contended that she had been denied an opportunity to speak on her own behalf prior to her original sentencing by the court. While her request for resentencing also specifically mentioned the lower court’s failure to comply with the Rule 1403 requirements at the time of the original sentencing, the lower court, in an apparent oversight, did not satisfy the Rule subsequent to the resentencing. Thus, although the lower court clearly articulated the rationale for its sentence, it is clear that we must vacate the judgment of sentence and remand to permit the lower court an opportunity to supplement the record by stating its reasons for dispensing with a pre-sentence investigation report, as required by Rule 1403 Á(2). See Commonwealth v. Weldon, 287 Pa.Super. 533, 430 A.2d 1180 (1981); Commonwealth v. Bryner, 285 Pa.Super. 305, 427 A.2d 236 (1981). In reaching this conclusion, we reject the Commonwealth’s contention that the Rule does not apply in this case because it involved an appeal to the Common Pleas court from a conviction and sentencing by a district magistrate in a summary proceeding. In his recent opinion in Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981), President Judge Cercone thoroughly explained why our Criminal Rules, unless specifically made inapplicable, must be followed in all de novo proceedings in our trial courts on summary violation appeals.

The Appellant’s conviction is affirmed, but the judgment of sentence is vacated and the case remanded to permit the lower court to specify its reasons for dispensing with a pre-sentence report, as required by Rule 1403 A(2).

We relinquish jurisdiction.

      . The Appellant was originally sentenced by the trial court in this case immediately after finding she was guilty. Procedural problems have been created in other similar cases where lower courts have followed the practice of immediately sentencing a defendant after a conviction in a de novo appeal from a summary conviction. The proper procedure is for post-verdict motions to be decided before sentencing. See the discussion of this issue in Commonwealth v. Williams, 290 Pa.Super. 158, 434 A.2d 179 (1981).


author: HOFFMAN, Judge:

text:
    450 A.2d 108
    MEDINA & MEDINA, INC., a Puerto Rican Corporation v. GURRENTZ INTERNATIONAL CORPORATION, formerly American Central Trading Corporation, Appellant.
    Superior Court of Pennsylvania.
    Argued March 16, 1982.
    Filed Sept. 3, 1982.
    Petition for Allowance of Appeal Denied Dec. 1, 1982.

      John Joseph Ford, Pittsburgh, for appellant.
    David R. Brown, Pittsburgh, for appellee.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that appellee’s domesticated foreign judgment should have been stricken because supporting docket entries were not properly authenticated. We disagree and, accordingly, affirm the order of the court below.

In 1979, a $63,358.55 judgment was entered for appellee against appellant’s predecessor in interest by the Superior Court of Puerto Rico, San Juan Section, at Civil No. 71-3225 (903). Appellee subsequently domesticated the judgment by filing it in the Allegheny County Court of Common Pleas pursuant to the Uniform Enforcement of Foreign Judgments Act, 42 Pa.C.S.A. § 4306(b) (hereinafter cited as the UEFJA). Appellee amended its original filings and appellant filed an amended petition to strike the judgment. The lower court denied that petition, prompting this appeal.

Appellant contends that the Puerto Rican docket entries were not properly authenticated. Under the UEF-JA, appellee could authenticate them under either federal law, see 28 U.S.C.A. § 1738, or under Pennsylvania law, see 42 Pa.C.S.A. § 5328. Id. § 4306(b). Although “foreign” for the purposes of the UEFJA, the Puerto Rican judgment is a “domestic record” for authentication purposes under the Uniform Interstate and International Procedure Act. Id. § 5328(a) (any “record kept within the United States, or any state, district, commonwealth, territory, insular possession thereof”). See also 28 U.S.C.A. § 1738 (court records from “any State, Territory, or Possession of the United States” entitled to full faith and credit); 48 U.S.C.A. § 731 et seq. (recognizing and defining relationship between United States and Puerto Rico). Section 5328(a) of our Judicial Code provides:

Domestic record.—An official record kept within the United States, or any state, district, commonwealth, territory, insular possession thereof, or the Panama Canal Zone, the Trust Territory of the Pacific Islands, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied by a certificate that the officer has custody. The certificate may be made by a judge of a court of record having jurisdiction in the governmental unit in which the record is kept, authenticated by the seal of the court, or by any public officer having a seal of office and having official duties in the governmental unit in which the record is kept, authenticated by the seal of his office.

Appellee’s filings contain a signed, sealed certificate and its translation, the accuracy of which has not been questioned by the parties. The certificate reads:

CERTIFICATE

I CERTIFY: That this document is a true and exact copy of its original which contains all the documents filed in case # 71-3225 under our custody, as they were filed in the Registry of Civil Matters # 8 for the year 1971.
And at the request of Attorney Gonzalez I issue this certificate under my signature and the official seal of the Superior Court of Puerto Rico, San Juan Section.

San Juan, Puerto Rico, this 25 of March, 1981. This document recites the authenticity of the docket entries; is signed by the Assistant General Clerk of the Superior Court of Puerto Rico, San Juan Section; bears the seal of that court; and adequately discloses that the clerk has possession of the original from which the copy was made. We are satisfied appellee has met the requirements of section 5328(a). Accordingly, the lower court did not err in denying appellant’s petition to strike the judgment.

Order affirmed.

      . 42 Pa.C.S.A. § 4306(b) provides:
      Filing and status of foreign judgments.—A copy of any foreign judgment including the docket entries incidental thereto authenticated in accordance with act of Congress or this title may be filed in the office of the clerk of any court of common pleas of this Commonwealth. The clerk shall treat the foreign judgment in the same manner as a judgment of any court of common pleas of this Commonwealth. A judgment so filed shall be a lien as of the date of filing and shall have the same effect and be subject to the same procedures, defenses and proceedings for reopening, vacating, or staying as a judgment of any court of common pleas of this Commonwealth and may be enforced or satisfied in like manner.

      . Appellant asserts that appellee must authenticate the docket entries under 28 U.S.C.A. § 1738. Appellant premises its argument upon the statement in Webb v. Consumer Auto Leasing, Ltd., 235 Pa.Superior Ct. 47, 51, 340 A.2d 865, 867 (1975), that “there are no existing state statutes relating to ... the method of authentication.” Although that statement was true when written, our legislature has since adopted the present version of the Judicial Code, rendering appellant’s contention patently frivolous.

      . Appellant argues also that we should not enforce the Puerto Rican judgment because the law underlying it is repugnant to Pennsylvania’s public policy. We disagree. In Everson v. Everson, 494 Pa. 348, 361, 431 A.2d 889, 896 (1981), our Supreme Court held that “[a] state is required to give full faith and credit to a money judgment rendered in a civil suit by a sister state even where the judgment violates the policy or law of the forum where enforcement is sought.” Appellant concedes, Brief for Appellant at 14 & n.*, that the judgment is entitled to full faith and credit, see U.S.Const. art. IV, § 1; 28 U.S.C.A. § 1738; 48 U.S.C.A. § 731 et seq. Thus, even if the Puerto Rican law contravened Pennsylvania’s public policy, this Court would be powerless to deny enforcement of a Puerto Rican judgment based upon that law. Assuming, arguendo, that we could look behind the Puerto Rican judgment, we would not deny it enforcement on the ground of conflicting public policy. Appellant’s assertion that the underlying law is a penal sanction for a private wrong simply misconstrues the statute. Section 3 of the Act of June 24, 1964, No. 75, as amended, 10 L.P.R.A. § 278b, captioned “Damages,” provides “indemnity” “to the extent of damages caused” for “a tortious act” to be based, in part, upon “the amount of profit obtained in the distribution of merchandise or in the rendering of services ... during the last five years, or if less than five, five times the average annual net profit obtained during the last years, whatever they may be.” Id. § 278b(d) (emphasis added). See generally La Playa Santa Marina, Inc. v. Chris-Craft Corp., 597 F.2d 1 (1st Cir. 1979). As the Puerto Rican court found, appellee did not have five years’ history, and, consequently, it awarded damages, in part, upon the statutory formula. See R.32a (certified translation of court’s opinion). Accordingly, appellant’s contention is without merit.


author: PER CURIAM:

text:
    450 A.2d 110
    Howard W. McANANY, Jr. and Julia M. McAnany, his wife, Appellants, v. James P. MOELLER, Individually and t/d/b/a Moeller Auto Body and Moeller Auto Sales, and Janet L. Moeller, his wife.
    Superior Court of Pennsylvania.
    Argued Oct. 15, 1981.
    Filed Sept. 3, 1982.
    Charles E. Kurowski, Canonsburg, for appellants.
    Carl J. Smith, Jr., Washington, for appellees.
    Before WIEAND, JOHNSON and MONTEMURO, JJ.
   PER CURIAM:

The instant action was begun by filing of a complaint in Equity which was dismissed on preliminary objections; an amended complaint was again dismissed on preliminary objections, and finally this complaint in assumpsit was filed.

Once again the defendant responded with preliminary objections, which contained three separate counts. The trial court sustained the objections to Count I in part and to Count III in its entirety. Count II remains, as does the action against the husband-defendant in Count I.

As to the merits of the lower court’s decision on Counts I and III, we are not at liberty to express an opinion, for this appeal is interlocutory. The jurisdiction for the appeal is predicated on 42 Pa.C.S.A. § 742, which provides that the Superior Court shall have jurisdiction over all final orders of the Courts of Common Pleas. To be final, however, the order must put the appellant out-of-court. We have repeatedly held that dismissal of one or more counts of a multi-count complaint does not put an appellant “out-of-court”. Therefore, the present order must be held to be interlocutory and not appealable. Bagshaw v. Vickers, 286 Pa.Super. 246, 428 A.2d 664 (1981); Giannini v. Foy, 279 Pa.Super. 553, 421 A.2d 338 (1980).

Appeal quashed.