author: BROSKY, Judge: WIEAND, Judge,

text:
    459 A.2d 338
    William JAMES, Appellant, v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY.
    Superior Court of Pennsylvania.
    Argued April 22, 1982.
    Filed March 11, 1983.
    Reargument Denied May 24, 1983.
    Petition for Allowance of Appeal Granted Sept. 8, 1983.

      George J. O’Neill, Philadelphia, submitted a brief on behalf of appellant.
    Norman Hegge, Jr., Philadelphia, for appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   BROSKY, Judge:

The Metropolitan Transportation Authority Act provided, inter alia, that those suing such authorities had to give notice within six months of the accrual of the action. This provision is challenged here on constitutional grounds. Despite the fact that appellant failed to notify the Attorney General of the constitutional challenge at the trial court level, we choose to reach the issue on its merits here. We hold that the statute is unconstitutional.

The background of this case is as follows. On May 7, 1975, plaintiff-appellant, James, allegedly slipped on debris littering the steps of a SEPTA station stairwell. Among his injuries was a spiral, comminuted fracture of his right leg.

The only evidence that James had given notice of his claim against SEPTA within the six-month period is an answer he gave to an interrogatory to that effect. His complaint was filed in 1977, well after the six-month period. After holding an evidentiary hearing on the matter, Judge Braig held that James had not met the six-month notice of claim requirement and entered summary judgment in favor of SEPTA.

While at the trial court level, James also raised a challenge to the constitutionality of the statute. He failed, however, to notify the State Attorney General of this challenge as Pa.R.C.P. 235(a) mandates. The trial court failed to address the constitutional issue in its opinion.

On appeal, the only issue raised is the constitutionality of this now-repealed statute. Notification of the constitutional challenge at this appellate level was given to the Attorney General in accordance with Pa.R.A.P. 521(a). This notification was sent on February 2, 1982 and a reply from the Attorney General’s office dated March 2, 1982, states: “If no notification is received from this Office within 30 days of the date of this letter, please assume that the Commonwealth will not be entering its appearance in these matters.” To date, more than six months after that letter, the Attorney General has not joined this case.

Usually, a rule is a rule. Rule 235, supra, requires that the Attorney General be notified of a constitutional challenge to a statute at the trial court level. Normally, noncompliance with this rule would mandate our quashing of this appeal. Irrera v. SEPTA, 231 Pa.Super. 508, 331 A.2d 705 (1974), involved a constitutional challenge to this same statute and also involved a failure to comply with this same rule. The “issue was deemed abandoned or waived.” Irrera, supra, 231 Pa.Superior at 515, 331 A.2d at 708.

In the case before us, appellant did fail to comply with Rule 235; but he did raise the constitutional issue below, it was not addressed by the trial court, he did notify the Attorney General of the appellate proceedings, and the Attorney General did fail to enter the case.

This same configuration of facts existed in the case of Commonwealth v. Stein, 487 Pa. 1, 406 A.2d 1381 (1979). There, considering those particular circumstances, Justice Nix held that the noncompliance with Rule 235 was not “a basis for refusing to consider the” constitutional issue. Stein, supra, 487 Pa. at 8, 406 A.2d at 1384.

We are willingly guided by Justice Nix’s thoughts on this matter, even though they are not in this case binding precedent. Under the circumstances occurring here, the noncompliance with Rule 235 is not fatal and we will address the merits of the constitutional challenge.

Appellant contends that the notice of claim requirement violates the Equal Protection clause of the Fourteenth Amendment to the U.S. Constitution. The provision before us states:

Limitation of actions against authority

Within six months from the date that any injury was received, or any cause of action accrued, any person who is about to commence any civil action in any court against the authority for damages on account of any injury to his person shall file in the office of the secretary of the board, and also in the office of the chief counsel for the authority, either by himself, his agent, or attorney, a statement in writing, signed by himself, his agent, or attorney, giving the name of the person to whom the cause of action has accrued, the name and residence of the person injured, the date, and about the hour of the accident, the place or location where the accident occurred, and the name and address of the attending physician, if any. If the notice provided for this section is not filed as provided, any civil action commenced against the authority more than six months after the date of injury, shall be dismissed and the person to whom any such cause of action accrued for any personal injury shall be forever barred from further suing.

The first step in any Equal Protection analysis is to determine which of three standards will be used. The most minimal of the standards merely requires that the classification be rationally connected to a legitimate governmental purpose. The most stringent standard, strict scrutiny, is used to review actions affecting fundamental rights or using suspect categories. There is also a third, intermediate standard, often referred to as heightened scrutiny. This intermediate standard will be employed here.

The selection of the heightened scrutiny standard is determined by its use in a similar context by this Commonwealth’s Supreme Court. In Moyer v. Phillips, 462 Pa. 395, 341 A.2d 441 (1975), Chief Justice Jones used this standard to review the exclusion of slander and libel actions from surviving the death of plaintiff or defendant. As stated in that case, the applicable standard is as follows.

The Equal Protection Clause of both constitutions does not deny the State the power to treat different classes of persons in different ways, but does deny the right to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of the particular statute. The classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation so that all persons similarly circumstanced shall be treated alike.

Moyer, supra, 462 Pa. at 400-1, 341 A.2d at 443.

The high courts of other states have also applied heightened scrutiny in cases which were even more directly on point with the one before us. Noting that “the right to recover for personal injuries is ... an important substantive right,” the New Hampshire Supreme Court used this same intermediate standard in reviewing another notice of claim requirement. Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 at 830 (N.H., 1980). In another notice of claim case the Supreme Court of Washington stated:

The right to be indemnified for personal injuries is a substantial property right, not only of monetary value but in many cases fundamental to the injured person’s physical well-being and ability to continue to live a decent life. Statutory classifications which substantially burden such rights as to some individuals but not others are permissible under the equal protection clause of the Fourteenth Amendment only if they ... [meet the heightened scrutiny test.]

Hunter v. N. Mason High School, 85 Wash.2d 810, 539 P.2d 845 at 848 (Wash., 1975) (a four month notice of claim requirement).

In order to apply the heightened scrutiny test, the purpose of the statute must be established. This court has held that the purpose of the § 2036 notice requirement “... is to provide the defendant with the opportunity to make timely investigation and avoid the difficulty of defending against stale and fraudulent claims.” Dubin v. Southeastern Pennsylvania Transportation Authority, 219 Pa.Super. 476, at 478, 281 A.2d 711, at 712 (1971).

Next, the classification itself must be identified. Here, the classification, or grounds for differential treatment is whether or not the defendant is a transportation authority; or, looked at from the other side, whether or not the plaintiff is suing a transportation authority.

Having determined the applicable Equal Protection standard and identified the statutory purpose and classification, it remains to apply the standard to the statute in question.

Is this classification “reasonable”; does it have a “fair relation” to the purpose of the legislation? We think not. The Supreme Court of Appeals of West Virginia also held that a similar notice requirement was “neither reasonable nor fair.” Though the notice time period was 30 days, the statements about it are entirely apropos here. “Few laymen, unversed in the law, know within thirty days of their injury whether they will sue; fewer yet know of the thirty-day notice.” O’Neil v. City of Parkersburg, 237 S.E.2d 504 at 508 (W.Va., 1977). Even at this level the statute is patently unfair, but when viewed in terms of its disproportionate effect upon certain segments of our society, this statute’s unreasonableness is even more apparent.

While the differential impact of a statute along economic lines is not, per se, an Equal Protection violation, such an impact can be relevant in evaluating a statute’s fairness and reasonableness.

Ordinarily the affluent and educated tort victim has a retained or family attorney. His attorney may ethically—and probably does—come forward to inform his client of the notice requirement. Iowa Code of Professional Responsibility for Lawyers, Ethical Canon 2-3. It is the poor, uneducated tort victim, without counsel and unacquainted with lawyers, who naively assumes he will be compensated and unknowingly permits the notice time to lapse.

Lunday v. Vogelmann, 213 N.W.2d 904, 911-12 (Iowa, 1973) (Reynoldson, J., dissenting) (requiring an action to commence within three months, unless notice had been given within 60 days).

On the same subject, the Washington Supreme Court observed: “By increasing the demands on the potential plaintiff, these statutes grossly magnify the unfair impact of the unequal distribution of legal counsel and knowledge between rich and poor.” Hunter, supra, 539 P.2d at 848. The increased demands on the potential plaintiff imposed by § 2036 are unnecessarily precise and duplicative. Notice must be given to both “the office of the secretary of the board, and also in the office of the chief counsel for the authority.” It is clear that this notice of claim statute is “neither reasonable nor fair.”

Another allied requirement of the heightened scrutiny test is that there be “a fair and substantial relation to the object of the legislation.” This determination can be made by comparing the public interest furthered and the private right restricted. Carson, supra, 424 A.2d at 831. Due to the particular history of state constitutional cases in New Hampshire, (whose Supreme Court issued Carson), the test there is a weighing of the respective public and private interests affected. That is not our intention here. Rather than determining which outweighs the other, we are merely ascertaining whether or not the public and private interests involved are grossly disproportionate. We conclude that they are.

The public interest in investigating claims is poorly served by this statute. The claims affected by this statute are typically like the one sub judice, actions in tort. Providing notice to the Authority up to five months and 29 days after James slipped on debris littering a stairwell would hardly have permitted a timely investigation of the condition of the steps at the pertinent time. (Such a timely investigation would normally be activated by the Authority personnel involved—the bus driver, for example—and would be undertaken by the Authority’s investigators.)

Also, the Authority would receive adequate notice to investigate and prepare its case through normal service of process. The plaintiff also has the burden of proof in any action. This burden of proof and our whole adversary system act to defeat fraudulent claims. The passage of time is also at least equally detrimental to the plaintiff in forming his case. Thus, not only is the notice provision ineffective, but other factors operate independently to serve the stated objective. The former leads us to conclude that there is not a substantial relation to the object of the legislation; the latter is relevant to the comparison between the public interest served and the private right restricted.

The nature of this restricted private right is readily apparent. Failure to comply with the notice requirement works a forfeiture of any right to recover that he might have established in court. This result could be catastrophic to a severely injured individual in real need of monetary recovery.

Thus, the private right is most substantial and the public interest is minimal, since it is inadequately furthered by the provision. This comparison was accurately described by the Nevada Supreme Court. “... claim statutes serve no real beneficial use but they are indeed a trap for the unwary.” Turner v. Staggs, 89 Nev. 230, 510 P.2d 879 at 882 (Nev., 1973) (citations omitted).

It is apparent that the classification has neither a fair nor a substantial relation to the statute’s objective.

Another element of the heightened scrutiny test requires that the classification not be “arbitrary ... so that all persons similarly situated shall be treated alike.” We conclude that the notice of claim provision also fails to meet this standard. The Supreme Court of Michigan properly disposed of this point in a 1972 case:

Just as the notice requirement by its operation divides the natural class of negligent tortfeasors, so too the natural class of victims of negligent conduct is also arbitrarily split into two subclasses: victims of governmental negligence who must meet the requirement, and victims of private negligence who are subject to no such requirement.

Reich v. State Highway Dept., 386 Mich. 617, 194 N.W.2d 700 at 702 (Mich., 1972) (a two month notice requirement). See also O’Neil, supra, 237 S.E.2d at 507-8; Hunter, supra, 539 P.2d at 847; and Turner, supra, 510 P.2d at 882.

Finding the notice of claim provision unconstitutional under the Equal Protection clause, we reverse the summary-judgment and remand for further proceedings on the merits of James' action in trespass. This court relinquishes its jurisdiction in this case.

WICKERSHAM, J., concurs in result.

WIEAND, J., files dissenting opinion.

WIEAND, Judge,

dissenting:

The majority has concluded that the notice requirement contained in the Metropolitan Transportation Authorities Act of August 14, 1963, P.L. 984, § 36, 66 P.S. 2036, constitutes a violation of the equal protection clause of the Fourteenth Amendment and is unconstitutional. In order to achieve this result, the author of the lead opinion has employed the intermediate or “heightened scrutiny” level of review. Because I am persuaded by applicable authority that the standard of review utilized is incorrect and because I disagree with the result achieved, I must respectfully, but vigorously, dissent.

William James, the appellant, was injured on May 7, 1975 while descending the subway steps at Fifth and Market Streets in Philadelphia, allegedly as a result of slipping on an old candy wrapper partially coated with chocolate. Suit was instituted against SEPTA by praecipe for summons on May 9, 1977. Answers to SEPTA’s interrogatories and also appellant’s complaint were filed on August 24,1977. Appellant’s attorney died on February 13, 1978, and present counsel entered his appearance on July 24, 1978. SEPTA’s answer contained new matter which alleged the affirmative defense of failure to provide notice as required by Section 36 of the Act of 1963. Appellant’s reply denied that notice was lacking, averring that “[a]s indicated by plaintiff’s answers to interrogatories No. 19, defendant was notified of the accident by Murry Powlen, Esquire in June, 1975. Mr. Powlen died February 13, 1978.” Appellant’s reply also averred that the notice requirement contained in Section 36 of the Act of 1963 was unconstitutional.

Appellee filed a motion for summary judgment on August 22, 1978, contending that the absence of notice constituted a complete bar to appellant’s cause of action. In support thereof, appellee relied upon an affidavit of Elmer Hackett, Jr. which averred that no employee of SEPTA had received notice of appellant's injuries as required by the Metropolitan Transportation Authorities Act of 1963. Appellant filed an answer to the motion for summary judgment which denied that SEPTA had not been notified, incorporated by reference the answers to interrogatories and objected to the adequacy of the Hackett affidavit. By order dated October 23, 1978, Judge White denied appellee’s motion for summary judgment because the issue of fact concerning notice to SEPTA remained unresolved. The case was referred to a board of arbitration, which, after hearing, entered an award in favor of appellant and against SEPTA for three thousand dollars. An appeal was filed, and the case was listed for trial before the Honorable Joseph P. Braig. On July 27, 1981, Judge Braig held an evidentiary hearing, but the notes of testimony therefrom have not been transcribed. Judge Braig determined that notice had not been given to SEPTA and granted appellee’s motion for summary judgment. The opinion of the trial court states that summary judgment was entered in favor of appellee because the required notice had not been given. William James filed an appeal from this summary judgment. In doing so he has not challenged the trial court’s finding that notice was not given. His only contention on appeal is that the notice requirement of the Act of 1963 is unconstitutional. His constitutional challenge is based on the equal protection clause of the Fourteenth Amendment of the Constitution of the United States and also on Article I, Sections 11 and 26 of the Pennsylvania Constitution.

When reviewing a challenge to the constitutionality of a lawfully enacted statute, this Court must be guided by the well established principle that a statute is cloaked with a strong presumption of constitutionality. The appellant bears the burden of demonstrating that the legislation “clearly, palpably and plainly violates the Constitution.” Hayes v. Erie Insurance Exchange, 493 Pa. 150, 155, 425 A.2d 419, 421 (1981) citing Singer v. Sheppard, 464 Pa. 387, 393, 346 A.2d 897, 900 (1975) and Tosto v. Pennsylvania Nursing Home Loan Agency, 460 Pa. 1, 16, 331 A.2d 198, 203 (1975). Accord: Snider v. Thornburgh, 496 Pa. 159, 166, 436 A.2d 593, 596 (1981); Tsarnas v. Jones & Laughlin Steel Corporation, 488 Pa. 513, 522, 412 A.2d 1094, 1099 (1980); Milk Control Commission v. Battista, 413 Pa. 652, 659, 198 A.2d 840, 843 (1964), appeal dismissed 379 U.S. 3, 85 S.Ct. 75, 13 L.Ed.2d 22 (1964); Freezer Storage, Inc. v. Armstrong Cork Co., 234 Pa.Super. 441, 447, 341 A.2d 184, 186 (1975), aff'd, 476 Pa. 270, 382 A.2d 715 (1978); Robson v. Penn Hills School District, 63 Pa.Cmwlth. 250, 255, 437 A.2d 1273, 1276 (1981); In re Street, 67 Pa.Cmwlth. 441, 443, 447 A.2d 1052, 1054 (1982); Picariello v. Common wealth, 54 Pa.Cmwlth. 252, 255, 421 A.2d 477, 479 (1980); Workmen’s Compensation Appeal Board v. Bethlehem Mines Corp., 23 Pa.Cmwlth. 517, 520, 353 A.2d 79, 80-81 (1976). It is appellant’s contention that Section 36 of the Act of 1963 violated the equal protection clause because it created two classifications of tortfeasors, one consisting solely of metropolitan transportation authorities, and the other including all private individuals or corporations. He contends that this distinction lacked “substantial, rational or reasonable reasons for favoring the governmental tortfeasor with special notice requirements.”

Initially, in any equal protection challenge the correct level of judicial scrutiny must be determined. “[T]here are three tests by which legislatively created classifications are measured in order to determine whether those classifications meet the muster of the Equal Protection Clause. The so-called ‘strict scrutiny test’ is applied to those classifications affecting fundamental rights and liberties, or classifications which are ‘inherently suspect’. See: San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); McDonald v. Board of Election, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969). There is an intermediate test which is applied to so-called ‘quasi-suspect’ classifications, such as gender, which requires heightened scrutiny but not scrutiny as intense as that applied in cases involving fundamental rights or inherently suspect classifications. See Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). [citations omitted]. The third test is the ‘rational basis’ or ‘rational relationship’ test. It is applied in those cases not involving fundamental rights, but involving legitimate governmental interests and classifications neither inherently suspect nor quasi-suspect. See Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970).” Long v. 130 Market Street Gift & Novelty of Johnstown, 294 Pa.Super. 383, 396 n. 9, 440 A.2d 517, 523 n. 9 (1982). Where, as here, the statute is not based upon a suspect classification and does not interfere with a fundamental right, the “rational basis” test must be employed. Snider v. Thornburgh, supra, 496 Pa. at 167, 436 A.2d at 596; Tsarnas v. Jones & Laughlin Steel Corporation, supra 488 Pa. at 523, 412 A.2d at 1099; Commonwealth v. Bottchenbaugh, 306 Pa.Super. 406, 411, 452 A.2d 789, 791 (1982); Long v. 130 Market Street Gift & Novelty of Johnstown, supra 294 Pa.Super. at 402, 440 A.2d at 527. Accord: Schroeder Aviation, Inc. v. DeFehr, 283 N.W.2d 147, 152 (N.D., 1979); Brown v. Wichita State University, 219 Kan. 2, 16, 547 P.2d 1015, 1027 (1976) appeal dismissed 429 U.S. 806, 97 S.Ct. 41, 50 L.Ed.2d 67 (1976); Newlan v. State, 96 Idaho 711, 713, 535 P.2d 1348, 1350-1351 (1975), appeal dismissed sub nom Agost v. Idaho, 423 U.S. 993, 96 S.Ct. 419, 46 L.Ed.2d 367 (1975). Under this level of scrutiny, in order to withstand constitutional challenge, the classification must be reasonable, not arbitrary, and rest upon a difference having a fair and substantial relation to the object of the legislation. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989, 990-991 (1920); Snider v. Thornburgh, supra 496 Pa. at 167, 436 A.2d at 597; Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 68, 436 A.2d 147, 155 (1981), appeal dismissed sub nom Bucheit v. Laudenberger, 456 U.S. 940, 102 S.Ct. 2002, 72 L.Ed.2d 462 (1982); Hayes v. Erie Insurance Exchange, supra 493 Pa. at 156, 425 A.2d at 422; Kroger Company v. O’Hara Township, 481 Pa. 101, 119, 392 A.2d 266, 275 (1978); Moyer v. Phillips, 462 Pa. 395, 400-401, 341 A.2d 441, 443 (1975).

Appellant’s argument that the notice requirement of Section 36 of the Act of 1963 is constitutionally infirm because it creates two classes of tortfeasors, based solely upon the status of the tortfeasor, is without merit. “ ‘[T]he Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.’ ” Freezer Storage, Inc. v. Armstrong Cork Co., supra 234 Pa.Super. at 447, 341 A.2d at 187 quoting McGowan v. Maryland, 366 U.S. 420, 425-426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961). Accord: Reed v. Reed, 404 U.S. at 75, 92 S.Ct. at 253, 30 L.Ed.2d 225 (1971); Hayes v. Erie Insurance Exchange, supra 493 Pa. at 155, 425 A.2d at 422; Tsarnas v. Jones & Laughlin Steel Corporation, supra 488 Pa. at 522, 412 A.2d at 1098-1099; Kroger Company v. O’Hara Township, supra 481 Pa. at 118-119, 392 A.2d at 275; Adler v. Montefiore Hospital Association of Western Pennsylvania, 453 Pa. 60, 76-77, 311 A.2d 634, 643 (1973), cert. denied, 414 U.S. 1131, 94 S.Ct. 870, 38 L.Ed.2d 755 (1974); Commonwealth v. Bottchenbaugh, supra 306 Pa.Super. at 412, 452 A.2d at 791. Thus, the law is quite well established and clear “that the Legislature may permissibly limit liability on the basis of a defendant’s status.” Carroll v. County of York, 496 Pa. 363, 368, 437 A.2d 394, 397 (1981) citing Freezer Storage, Inc. v. Armstrong Cork Co., 476 Pa. 270, 382 A.2d 715 (1978) and Sherwood v. Elgart, 383 Pa. 110, 117 A.2d 899 (1955). Accord: Marino v. Seneca Homes, Inc., 63 Pa. Cmwlth. 534, 541, 439 A.2d 1287, 1291 (1981); Picariello v. Commonwealth, supra 54 Pa.Cmwlth. at 257-258, 421 A.2d at 482.

The classification challenged by appellant, i.e., all metropolitan transportation authority tortfeasors, is a classification based upon a legitimate state objective of furthering and improving urban mass transportation. In furtherance of this goal, the legislature has imposed upon persons injured by transportation authorities a duty to notify promptly agencies against whom claims are to be made. This is a reasonable restriction upon the right to recover. The Pennsylvania Supreme Court has held that “it is within the province of the Legislature to determine that certain bars to suit are, in its judgment, needed for the operation of local government.” Carroll v. County of York, supra 496 Pa. at 370, 437 A.2d at 397. (footnote omitted). Therefore, if the statutory classification of all metropolitan transportation authority tortfeasors is rationally related to the legislature’s objective in enacting the statute, it is a constitutionally permissive classification and must be upheld.

Section 2 of the Metropolitan Transportation Authorities Act of 1963 contained the declaration of legislative public policy with regard to the establishment of transportation authorities under the Act, and provided in part:

“It is hereby determined and declared as a matter of legislative finding: (a) That there exists in the urban and suburban communities in metropolitan areas, traffic congestion and serious mass transportation problems because of underdeveloped, uncoordinated obsolete mass transportation facilities____ (b) ... harmful to the social and economic well-being of the entire area____ (c) That ... cannot be effectively dealt with by private enterprise — (d) ... that the public acquisition of existing mass transportation facilities ... will promote the public health, safety, convenience and welfare____ (g) That the establishment of metropolitan transportation authorities will promote the public safety, convenience and welfare
Therefore, it is hereby declared to be. the policy of the Commonwealth of Pennsylvania to promote the safety and welfare of the inhabitants thereof by authorizing the creation of a body corporate and politic for each metropolitan area, ... for the purposes contained in this act. Such purposes are hereby declared to be public uses____■” 66 P.S. § 2002.

While the Act of 1963 did not expressly discuss the purpose of the notice requirement, this Court has previously held that the purpose of Section 36 of the Act of 1963 is to “provide the defendant with the opportunity to make timely investigation and avoid the difficulty of defending against stale and fraudulent claims.” Dubin v. Southeastern Pennsylvania Transportation Authority, 219 Pa.Super. 476, 478, 281 A.2d 711, 712 (1971), allocatur denied, 219 Pa.Super. XXXVII (1972). Accord: Irrera v. Southeastern Pennsylvania Transportation Authority, 231 Pa.Super. 508, 518, 331 A.2d 705, 710 (1974).

A similar notice requirement for claims against municipalities contained in the Act of July 1, 1937, P.L. 2547, § 1, 53 P.S. § 5301 withstood constitutional challenge in Eisenhauer v. Cleveland, Township, 154 Pa.Super. 206, 215, 35 A.2d 570, 574 (1944). Early notice has been recognized as a legitimate means “by which municipal governments might protect themselves against claims of those who have tarried so long that they have made it insurmountably difficult for the municipality to conduct a proper investigation into the circumstances of the accident.” Yurechko v. County of Allegheny, 430 Pa. 325, 332-333, 243 A.2d 372, 377 (1968). Accord: Zack v. Saxonburg Borough, 386 Pa. 463, 465, 126 A.2d 753, 754 (1956); Aloia v. City of Washington, 361 Pa. 620, 624, 65 A.2d 685, 687 (1949); Landis v. City of Philadelphia, 245 Pa.Super. 514, 518-519, 369 A.2d 746, 748 (1976). See also: LaBriola v. Southeastern Pennsylvania Transportation Authority, 227 Pa.Super. 305, 323 A.2d 9 (1974).

Courts of other jurisdictions have also recognized that valid purposes are served by similar notice requirements and include: “(1) to investigate evidence while fresh; (2) to prepare a defense in case litigation appears necessary; (3) to evaluate claims, allowing early settlement of meritorious ones; (4) to protect against unreasonable or nuisance claims; (5) to facilitate prompt repairs, avoiding further injuries; (6) to allow the municipality [or agency] to budget for payment of claims; and (7) to insure that officials responsible for the above tasks are aware of their duty to act.” Budahl v. Gordon & David Associates, 287 N.W.2d 489, 492 (S.D., 1980). Accord: Newlan v. State, supra, 96 Idaho at 714, 535 P.2d at 1351-1352; Fuller v. Rutgers, the State University, 154 N.J.Super. 420, 424, 381 A.2d 811, 814 (1977); Stanley v. City and County of San Francisco, 48 Cal.App.3d 575, 580,121 Cal.Rptr. 842, 846 (1975). See also: Anno., Modern Status of the Law as to Validity of Statutes or Ordinances Requiring Notice of Tort Claim Against Local Governmental Entity, 59 A.L.R.3d 93 (1974).

The lead opinion cites decisions from four jurisdictions which have held that notice requirements applicable only to governmental tortfeasors violate the equal protection clause. In reaching such a conclusion, however, the courts in all four jurisdictions noted that in their respective states, the defense of sovereign immunity was not available to the tortfeasors named as defendants. See: O’Neil v. Parkersburg, 237 S.E.2d 504, 507 (W.Va.1977); Hunter v. North Mason High School, 85 Wash.2d 810, 817, 539 P.2d 845, 850 (1975); Turner v. Staggs, 89 Nev. 230, 510 P.2d 879, 881 (Nev.1973), cert. denied, 414 U.S. 1079, 94 S.Ct. 598, 38 L.Ed.2d 486 (1973); Reich v. State Highway Department, 386 Mich. 617, 622, 194 N.W.2d 700, 702 (1972). The vast majority of courts, however, have held that notice requirements, some as short as thirty days, do not violate principles of equal protection, especially where sovereign immunity is a recognized defense. See: DeAlmanza v. Laredo Water Works System, 582 F.2d 970 (5th Cir.1978) (applying Texas law); Oquendo v. Insurance Company of Puerto Rico, 388 F.Supp. 1030 (D.C.Puerto Rico 1974); Budahl v. Gordon & David Associates, supra; Herman v. Magnuson, 277 N.W.2d 445 (N.D.1979); Schroeder Aviation, Inc. v. DeFehr, supra; Parton v. City of Huntsville, 362 So.2d 898 (Ala.1978); Fritz v. Regents of the University of Colorado, 196 Colo. 335, 586 P.2d 23 (1978); Espanola Housing Authority v. Atencio, 90 N.M. 787, 568 P.2d 1233 (1977); Fujimura v. Chicago Transit Authority, 67 Ill.2d 506, 10 Ill.Dec. 619, 368 N.E.2d 105 (1977); Geyer v. The City of Logansport, 267 Ind. 334, 370 N.E.2d 333 (Indiana 1977); Binder v. City of Madison, 72 Wis.2d 613, 241 N.W.2d 613 (1976); Crowder v. Salt Lake County, 552 P.2d 646 (Utah 1976); Campbell v. The City of Lincoln, 195 Neb. 703, 240 N.W.2d 339 (1976); Newlan v. State, supra; Awe v. University of Wyoming, 534 P.2d 97 (Wyo.1975); Tessier v. Ann & Hope Factory Outlet, Inc., 114 R.I. 315, 332 A.2d 781 (1975); Wilson v. District of Columbia, 338 A.2d 437 (D.C.Ct.App.1975); Lunday v. Vogelmann, 213 N.W.2d 904 (Iowa 1973); Housewright v. The City of LaHarpe, 51 Ill.2d 357, 282 N.E.2d 437 (1972); Gallegos v. Midvale City, 27 Utah 2d 27, 492 P.2d 1335 (1972); Workman v. The City of Emporia, 200 Kan. 112, 434 P.2d 846 (1967); McCann v. The City of Lake Wales, 144 So.2d 505 (Fla.1962); Brown v. Portland School District No. 1, 48 Or.App. 571, 617 P.2d 665 (1980); Fuller v. Rutgers, the State University, supra; Pausley v. Chaloner, 54 App.Div.2d 131, 388 N.Y.S.2d 35 (1976); Brantley v. The City of Dallas, 498 S.W.2d 452 (Tex.Civ.App.1973), error ref. n.r.e., cert. denied, 415 U.S. 983, 94 S.Ct. 1576, 39 L.Ed.2d 880 (1974).

It seems apparent, therefore, that well settled principles of law and the precedent established by prior decisions require that appellant’s constitutional argument be rejected. I confess to an inability to understand why the majority, despite a wealth of legal authority to the contrary, is prepared to depart from the mainstream of legal thought and, in effect, nullify all municipal notice requirements enacted by the legislature as a prerequisite to judicial enforcement of tort claims against municipal bodies. The argument made by appellant and cited by the lead opinion that the notice requirement falls most heavily on the poor is an argument “grounded not on constitutional precepts, but on social policies. As such, they must be addressed to the legislature, and not to the courts.” Tsarnas v. Jones & Laughlin Steel Corporation, supra 488 Pa. at 523, 412 A.2d at 1099.

Appellant’s contentions that Section 36 of the Act of 1963 violates Article I, Sections 11 and 26 of the Pennsylvania Constitution are equally lacking in merit. The Supreme Court, in Carroll, v. County of York, supra, has already held that Article I, Section 11 was “ ‘intended to allow the Legislature if it desired, to choose cases in which the Commonwealth should be. immune____’” Id. 496 Pa. at 367, 437 A.2d at 396 quoting Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 400, 388 A.2d 709, 717 (1978). Thus, the Legislature could validly abolish a cause of action against the Commonwealth, and the Political Subdivision Tort Claims Act is a valid exercise of legislative authority and not violative of Article I, Section 11 of the Pennsylvania Constitution. See also: Tsarnas v. Jones & Laughlin Steel Corporation, supra 488 Pa. at 518-520, 412 A.2d at 1096-1097. If the Legislature can validly abolish a cause of action against the Commonwealth, it follows that it can impose procedural conditions for maintaining an action against an agency or instrumentality of the state. See also: Freeze Storage, Inc. v. Armstrong Cork Company, supra 476 Pa. at 280-281, 382 A.2d at 720-721; Singer v. Sheppard, 464 Pa. 387, 400, 346 A.2d 897, 903-904 (1975) (plurality opinion).

Section 26 of Article I of the Pennsylvania Constitution provides: “Neither the Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of any civil right, nor discriminate against any person in the exercise of any civil right.” The notice requirement of Section 36 of the Metropolitan Transportation Authorities Act of 1963 did not deny appellant the enjoyment of any civil right. Rather, it created an obligation to give notice to a metropolitan transportation authority before commencing a legal action for damages against such authority. If we were to conclude that Section 36 of the Act of 1963 violated Article I, Section 26 of the Constitution, we would be obliged to hold that statutes of limitation applicable to actions against governmental agencies also violate Section 26 of Article I. This is clearly not the purpose of the guarantee contained in this section of the Constitution. See and compare: Astemborski v. Susmarski, 499 Pa. 99, 451 A.2d 1012 (1982).

For the foregoing reasons, I would find that the statutory provision was valid and would affirm the order of the trial court entering summary judgment in favor of the appellee.

      . 66 P.S. § 2036.

      . Pa.R.C.P. 235(a).

      . SEPTA is an authority covered by the six-month notice provision, supra, n. 1.

      . That issue is not raised on appeal.

      . In addition to not complying with Rule 235, Irrera had not even pled the constitutional issue at the trial court level. In the instant case, appellant did raise the constitutional issue below.

      . The respondent next contends that petitioner’s failure to notify the Attorney General of the Commonwealth of a constitutional challenge to an Act of Assembly in a proceeding in which the Commonwealth is not a party in violation of Pa.R.C.P. 235(a) permits our consideration of petitioner’s constitutional claims. The rule requires "prompt” notification of the Attorney General. Under the circumstances of this case in which the court below proceeded forthwith to the adjudication and disposition of the case without addressing itself to the constitutional questions presented by petitioner and where the Attorney General was duly notified of petitioner’s claims on appeal of the matter to the Superior Court and to this Court, and neither sought to intervene in this matter nor to raise the issue of lack of prompt notification as a reason for his decision not to intervene, we cannot accept this as a basis for refusing to consider the same.

        Stein, supra, 487 Pa. at 8-9, 406 A.2d at 1384.

      . Justice Nix wrote the above for the court, with Justice Roberts concurring and Justice Larsen joining that concurrence. Justices O’Brien and Manderino concurred in the result and Chief Justice Eagen dissented. Thus, three justices of the six Justices participating supported the reasoning of the above quotation and five approved of the result.

      . Article I, § 11 of the Pennsylvania Constitution is also said to be violated. Our disposition of the Equal Protection claim makes it unnecessary for us to reach this issue.

      . Metropolitan Transportation Authorities Act of 1963, Act of August 14, 1963, P.L. 984, § 36, 66 P.S. § 2036, Repealed April 28, 1978, P.L. 202, No. 53, § 2(a) (1371), effective June 27, 1978.

      . Two law review notes have dealt with notice of claim requirements and Equal Protection: Note, Notice of Claim Provisions: An Equal Protection Perspective, 60 Cornell L.Rev. 417 (1975); Note, Delay in Notice of Tort Claim Against a Government Agency, 20 Clev.St.L.Rev. 23 (1971). See also Annotation, 59 A.L.R.3d 93, Sections 5 and 6.

      . The statute reviewed in Carson required notice 60 days before commencing an action.

      . We note that some of the cases holding a notice of claim provision unconstitutional involved a six-month time period—as does the statute before us. See Turner, infra; Reich v. State, 43 Mich.App. 284, 204 N.W.2d 226 (Mich.App., 1972); King v. Baskin, 89 Nev. 290, 511 P.2d 115 (Nev., 1973); and Jenkins v. State, 85 Wash.2d 883, 540 P.2d 1363 (Wash., 1975) (this last a five-month provision).

      . The Metropolitan Transportation Authorities Act of 1963 was repealed by Section 2 of the Judiciary Act Repealer Act of April 28, 1978, P.L. 202, No. 53, § 2(a) [1371]. The notice requirement for claims against metropolitan transportation authorities is not contained in the Act of October 5, 1980, P.L. 693, No. 142, § 221(i)(l); 42 Pa.C.S. § 5522(a) which provides, inter alia:
      (a) Notice prerequisite to action against government unit.—
      (1) Within six months from the date that any injury was sustained or any cause of action accrued, any person who is about to commence any civil action or proceeding within this Commonwealth or elsewhere against a government unit for damages on account of any injury to his person or property under Chapter 85 (relating to matters affecting government units) or otherwise shall file in the office of the government unit, and if the action is against a Commonwealth agency for damages, then also file in the office of the Attorney General, a statement in writing, signed by or in his behalf, setting forth:
      (i) The name and residence address of the person to whom the cause of action has accrued.
      (ii) The name and residence address of the person injured.
      (iii) The date and hour of the accident.
      (iv) The approximate location where the accident occurred.
      (v) The name and residence or office address of any attending physician.

      . Repealed by Section 2 of the Judiciary Act Repealer Act of April 28, 1978, P.L. 202, No. 53, § 2(a) [1205]. The notice requirement for claims against municipalities is now provided for by the Act of October 5, 1980, P.L. 693, No. 142, § 221(i)(l); 42 Pa.C.S. § 5522.

      . In recognition of statutory purposes and objectives, courts have permitted plaintiffs to pursue causes of action even in the absence of compliance with the notice requirements of the Acts of 1963 and 1937, where the defendants would not be unduly prejudiced. See: Yurechko v. County of Allegheny, supra; Landis v. City of Philadelphia, supra; LaBriola v. Southeastern Pennsylvania Transportation Authority, supra; Dubin v. Southeastern Pennsylvania Transportation Authority, supra.

      . Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (N.H.1980) involved a notice requirement applicable to medical malpractice actions, not actions against governmental tortfeasors.

      . Article I, Section 11 of the Pennsylvania Constitution provides:
      "All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct.”

      . Act of November 26, 1978, P.L. 1399, 53 P.S. §§ 5311.101-5311.803, repealed by Section 333 of the Judiciary Act Repealer Act, Continuation Act of 1980, Act of October 5, 1980, P.L. 693, 42 P.S. § 20043. A similar provision is now found in the Judicial Code, 42 Pa.C.S. §§ 8541-8564.


source: Caselaw Access Project

author: MONTGOMERY, Judge: BROSKY, Judge,

license: Public Domain

text:
    459 A.2d 350
    Brian Roger JACOB, Appellant, v. NEW KENSINGTON Y.M.C.A.
    Superior Court of Pennsylvania.
    Argued June 15, 1982.
    Filed March 11, 1983.
    Reargument Denied May 23, 1983.
    Petition for Allowance of Appeal Denied Sept. 6, 1983.

      Thomas Hollander, Pittsburgh, for appellant.
    John E. Kunz, Pittsburgh, for appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

This appeal arises from the grant of defendant-appellee’s motion for judgment on the pleadings on the ground that the action was barred by the statute of limitations. We reverse and remand the matter to the court below.

Plaintiff-appellant allegedly was injured while on the premises of the Young Men’s Christian Association of New Kensington on November 15, 1978. Appellant claims that as a result of appellee’s negligence, he became permanently and irreversibly quadriplegic. Prior to retaining counsel, appellant’s father, on his son’s behalf, filed a praecipe for a writ of summons in trespass with the prothonotary of Westmoreland County on November 12, 1980. Though the writ was issued by the protiionotary that same day, service upon appellee-defendant was not made prior to its expiration.

A praecipe to reissue the writ of summons was filed by appellant through his attorney on January 29, 1981; and, said writ was reissued on that date. The writ was then delivered to the Westmoreland County sheriff with instructions for service and was served upon appellee-defendant on February 17, 1981.

Appellant contends that the rule in Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976), is not violated where a plaintiff intended to have the writ served immediately, but, due to a misunderstanding on the part of the layman filing the suit on his behalf, the writ was not delivered to the sheriff as required by local rule.

In Lamp the plaintiff-appellant’s attorney filed a praecipe for a writ of summons within the period permitted by the statute of limitations, but instructed the prothonotary not to deliver the writ to the sheriff for service. A praecipe for reissuance was filed, but service of the writ and its accompanying complaint was not effectuated. No reason was given for the failure to serve this reissued writ. Some two months later another praecipe for reissuance was filed and service was timely made. Both praecipes for reissuance were filed beyond the two year statutory period.

The rule in such cases prior to Lamp was based upon a literal interpretation of Pa.R.C.P. 1007 which states in part that

“[a]n action may be commenced by filing with the prothonotary (1) a praecipe for a writ of summons...”

In interpreting Rule 1007, our Supreme Court repeatedly held that the mere filing of a praecipe to commence an action is sufficient to toll the running of the statute of limitations; and, pursuant to Pa.R.C.P. 1010(a), the writ may be reissued at any time after the original issuance during a period equivalent to that permitted by the applicable statute of limitations for commencement of the action. See, e.g., Ehrhardt v. Costello, 437 Pa. 556, 264 A.2d 620 (1970); Salay v. Braun, 427 Pa. 480, 235 A.2d 368 (1967); Zarlinsky v. Laudenslager, 402 Pa. 290, 167 A.2d 317 (1961).

The Lamp court concluded, however, that too much potential for abuse existed “in a rule which permitted a plaintiff to keep an action alive without proper notice to a defendant merely by filing a praecipe for a writ of summons and then having the writ reissued in a timely fashion without attempting to effectuate service.” Lamp v. Heyman, supra, 469 Pa. at 477, 366 A.2d at 888. As a result, a new rule was enunciated as follows:

“[A] writ of summons shall remain effective to commence an action only if the plaintiff then refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion.” Id., 469 Pa. at 478, 366 A.2d at 889 (footnote omitted).

The above language, standing alone, negates appellant’s contention that this case does not fall within the ambit of Lamp. Prior to its enunciation of the new approach, however, the Supreme Court delineated the purpose for the departure from prior cases interpreting Pa.R.C.P. 1007. The Court declared that

“[o]ur purpose is to avoid the situation in which a plaintiff can bring an action, but, by not making a good faith effort to notify a defendant, retain exclusive control over it for a period in excess of that permitted by the statute of limitations.” Lamp v. Heyman, supra, 469 Pa. at 478, 366 A.2d at 889.

The key phrase in the stated purpose for the present approach is “good-faith effort.” Though appellant did not notify appellee of the action in accordance with the service provision of the local rule, he did vicariously assume, based upon comments made to his father by an employee of the prothonotary, that service would be effectuated absent any further action on his part. As a result, appellant asserts that his intention to have timely service made suffices as a good-faith effort.

Our review of the Lamp decision reveals that the Supreme Court clearly intended to abrogate the potential for abuse in cases where the issuance of a writ of summons tolls the statute of limitations. On the other hand, we also interpret Lamp as not intending its effect to be the punishment of those who make a good-faith effort to comply with the local rules. This interpretation necessitates a case-by-case analysis of the applicability of Lamp.

The facts in the case at hand take the matter outside of the Lamp rule. As a layman acting on his son’s behalf prior to retaining counsel, the inference drawn by appellant’s father from certain comments of a member of the prothonotary’s office is reasonable. Unlike an attorney who should be familiar with local procedures before commencing an action, a layman does not have the advantage of such familiarity. It is not unreasonable to believe that a layperson would accept without question, or misinterpret, procedural information from an officer of the court. We do not interpret the rule in Lamp as automatically binding upon those who find themselves in violation of their local rule regarding service regardless of the surrounding circumstances.

Given our finding that some cases may arise to which the Lamp rule is not applicable, a problem presents itself in the matter before us. A general allegation as to his intent to serve was made in appellant’s reply to appellee’s new matter. Specific facts supporting that general assertion were set forth in appellant’s amended reply to new matter. The amended reply cannot be considered part of the pleadings herein, however, as appellant’s motion to amend his reply was not granted by the court below for reasons noted above. As the lower court’s consideration of a motion for judgment on the pleadings is limited to well-pleaded facts, admissions and documents properly attached to the pleadings, Balush v. Borough of Norristown, 292 Pa.Super. 416, 437 A.2d 453 (1981), it logically follows that our review of the grant of such a motion is also so limited.

Since the issue of the lower court’s denial of appellant’s motion to amend his reply was preserved for our review, however, a finding that the denial was erroneous and the amendment should have been permitted would give us leave to consider the allegations made therein.

The additional factual information contained in appellant’s proposed amended reply is crucial in light of our interpretation of Lamp as set forth hereinbefore. If admitted by appellee or proven by appellant in the face of a denial, these facts would tend toward a showing of a “good-faith effort” to effectuate service. Facts such as those which appellant asked leave of the court below to plead are relevant and necessary for a finding as to the applicability of Lamp, and should, therefore, be considered by the court which has taken under advisement a motion for judgment on the pleadings asserting a violation of the statute of limitations based upon an absence of timely service.

While the right to amend pleadings is a matter within the sound discretion of the trial court, amendments should be allowed unless they violate the law or prejudice the rights of the opposing party. Bogert v. Allentown Housing Authority, 426 Pa. 151, 231 A.2d 147 (1967). As appellee herein will not be prejudiced by allowing the proposed amendment, Bata v. Central-Penn National Bank of Philadelphia, 448 Pa. 355, 293 A.2d 343 (1972), the lower court should have permitted appellant an opportunity to amend his reply and aver facts sufficient to avoid the bar of the statute of limitations. See, Puleo v. Broad Street Hospital, 267 Pa.Super. 581, 407 A.2d 394 (1979).

Judgment reversed and the matter is remanded to the court below to permit appellant to file an amended reply, and to conduct further proceedings consistent with this opinion. Jurisdiction relinquished.

BROSKY, J., files a dissenting opinion.

BROSKY, Judge,

dissenting:

I respectfully dissent.

First, my perception of the factual situation presented by this case is quite different from that of the majority. Plaintiff/appellant was represented by counsel at various stages in this proceeding. Appellant’s father had contacted present counsel and was instructed by him to file a praecipe for a writ of summons in trespass due to the impending running of the statute of limitations. Counsel’s name was entered on the writ. Subsequently, appellant’s father met with counsel and formally engaged him to handle the case.

Thus, appellant’s father was not merely an unversed layman wandering through confusing courthouse corridors. He had received advice of counsel and entered counsel’s name on the writ. That appellant’s father erred in not following the correct service procedures is not properly laid to his status as a layman but is due to counsel’s failure to meet his obligations to his client.

Even though the relationship between a potential client and counsel may be transitory and tentative, certain obligations are created by even such a relationship. Among these obligations are informing the potential client of impending statute of limitations difficulties. This was done here—but that alone was not sufficient to discharge his duty. Directing appellant’s father to file a writ of praecipe, rather than doing it himself, or at least checking to see that it had been done correctly, was in dereliction of counsel’s duty.

Counsel doesn’t enter into merely a business relationship with his client, or even with his potential client. Their relationship is freighted with the obligations owed by a professional to his client. Appellant’s counsel did not meet those obligations here.

Second, the majority opinion establishes a test by which procedural rule enforcement is dependent upon the bad faith of the violator. As I read it, the language in Lamp about bad faith is dicta, merely part of the reasoning of the court, and should not be elevated to the status of a holding. It is an unworkable standard. It would create an additional and complex claim to be litigated with every procedural violation of this type. Further, the logic of the majority decision could create the same kind of difficulty when applied to other procedural rules.

I am mindful of the tragic disability appellant has incurred. In addition, I recognize that the enormity of that tragedy is compounded should appellant not be able to have his day in court to attempt to financially recover for his damages. However, our sympathy with the appellant’s position should not lead this court to create an impractical rule that would then have general application.

I would therefore affirm.

      . Though a motion for leave to amend the plaintiff-appellant’s reply to new matter was before the lower court at the same time the motion for judgment on the pleadings was being considered, the court determined that the grant of the motion to amend would not resolve the issue as to whether the action was barred by Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976). The proposed amendment addressed appellee’s averment that "[p]laintiff made no effort to have the writ served ... ”, which was the crux of appellee’s statute of limitations argument, with additional responsive information.

      . Though the underlying facts were spelled out in appellant’s proposed amended reply to new matter, our analysis of the lower court’s denial of the motion to amend, infra, facilitates their inclusion herein.

      . We do not limit the application of our interpretation of Lamp to laypersons only; nor do we determine that the result will be the same as that herein whenever a layperson files a writ of summons. We . merely find that Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976), may not always be applicable given the factual circumstances; and, therefore, the question of its application must be dealt with on a case by case basis in order to determine whether a good faith effort to effectuate service was made.

      . See Note 1, supra.

      . Pa.RX.P. 1017(a): "The pleadings in an action are limited to a complaint, an answer thereto, a reply if the answer contains new matter or a counterclaim, a counter-reply if the reply to a counterclaim contains new matter, a preliminary objection and an answer thereto.” Rule 1017, which concerns actions in assumpsit, is made applicable to actions in trespass by Pa.R.C.P. 1041.


author: SPAETH, Judge: CIRILLO, Judge,

text:
    459 A.2d 354
    Michael EPSTEIN, Appellant, v. STATE FARM MUTUAL INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1982.
    Filed March 18, 1983.
    Reargument Denied May 25, 1983.
    Petition for Allowance of Appeal Denied Nov. 1, 1983.

      Allen L. Feingold, Philadelphia, for appellant.
    John E. Schuppert, Philadelphia, for appellee.
    Before SPAETH, WICKERSHAM and CIRILLO, JJ.
   SPAETH, Judge:

This is an appeal from an order dismissing appellant’s complaint with prejudice on the ground that the claim raised is the same as the one that has already been asserted in a prior action. Appellant argues that we should reverse the order because dismissal was not justified under the doctrines of res judicata or lis pendens. We affirm.

In July 1978, Michael Epstein, appellant, was injured in a motor vehicle accident. Appellant was insured by State Farm Mutual Insurance Company, appellee, under a policy that included uninsured motorist benefits. The driver, Terrell Moore, was insured by Concord Mutual Insurance Company.

In February 1980, appellant sought to obtain uninsured motorist benefits from appellee. The claim was arbitrated and coverage was denied. Exceptions were denied on the grounds that appellant had not established his entitlement to uninsured motorist’s benefits, and that in any event, his exceptions had not been timely filed. The order denying appellant’s exceptions was appealed to this court on January 8, 1981. That appeal has not yet been decided.

On March 2, 1981, appellant filed a complaint against appellee seeking general and punitive damages for appellee’s refusal to provide appellant with uninsured motorist coverage for the July 1978 accident. The complaint was dismissed on the ground that it raised the same claim as had already been asserted in the prior action. This appeal is from that dismissal.

Appellant’s argument that this action—the second action—should not have been dismissed lacks merit. Both the cause of action in this case and the cause of action in the prior case arise from the same occurrence—appellee’s refusal to provide uninsured motorist benefits to compensate appellant for injuries suffered in the July accident. Because both causes of action arise from the same occurrence, appellant was required by the compulsory joinder provisions of the Rules of Civil Procedure to assert them both in a single action. Thus, Rule 1020 provides: “(d)(1) If a transaction or occurrence or a series of transactions or occurrences gives rise to causes of action in assumpsit and trespass against the same person, ... they shall be joined in an action against any such person in separate counts.” Pa.R.Civ.P. 1020(d)(1) (emphasis added). Appellant’s failure to abide by this rule—in other words, his failure in his first action to join as a separate count the cause of action he now argues before us—“shall be deemed a waiver of that cause of action as against all parties to the action.” Pa.R.Civ.P. 1020(d)(4). The lower court’s order dismissing that action was therefore proper.

Affirmed.

CIRILLO, J., files a dissenting opinion.

CIRILLO, Judge,

dissenting:

I respectfully dissent. The majority decides this case on the basis of an issue not presented by the parties. Concluding that the causes of action in this case and the cause of action in the first case arise from the same occurrence, the majority holds that under the mandatory joinder provisions of Pa.R.C.P. 1020(d)(1), appellant was required to join them all in the first case and the failure to do so has resulted in the waiver of the causes of action asserted in the instant case pursuant to Pa.R.C.P. 1020(d)(4). Neither party raised the Rule 1020(d) mandatory joinder issue in the trial court or on appeal. In its preliminary objections, appellee, State Farm, raised only lack of subject matter jurisdiction, pend-ency of a prior action, failure to state a cause of action upon which relief could be granted and the statute of limitation. It is improper for this Court to decide an appeal on the basis of an issue not presented to it by the parties. Coleman v. Board of Education of the School District of Philadelphia, 477 Pa. 414, 383 A.2d 1275 (1978); Wiegand v. Wiegand, 461 Pa. 482, 337 A.2d 256 (1975). The majority therefore erred in sua sponte raising and deciding this appeal on the basis of Rule 1020(d).

Had the issue of mandatory joinder of causes of action been raised by the parties, I would not find it dispositive under the circumstances of this case. Preliminarily, I disagree with the majority’s conclusion that the causes of action in the instant case and the cause of action in the first case arise out of the same occurrence: State Farm’s refusal to provide uninsured motorist benefits to compensate appellant for injuries suffered in the July accident. Only the instant action arises out of State Farm’s refusal to provide uninsured motorist benefits. The first action arises not out of State Fárm’s refusal to pay benefits, but out of the July accident itself. The first action involves appellant’s claim under the uninsured motorist provisions of the insurance policy for injuries suffered in the July accident. The causes of action involved in the instant case arise not from the July accident but from State Farm’s alleged wrongful conduct occurring after the accident and in the course of processing and litigating the uninsured motorist claim.

However, granting for purposes of argument that the causes of action in both cases arise from “the same series of transactions or occurrences” so as to bring them within the mandatory joinder provisions of Rule 1020(d)(1), appellant could not have joined, in the first action, the causes of action he now asserts and therefore he cannot justly be held to have waived them by failing to do so. The first action was not commenced by appellant, but by appellee, State Farm. State Farm commenced the first action by filing a petition to compel the appointment of an arbitrator. No complaint was filed by the appellant in the first action; thus, he cannot be required to have joined the causes of action asserted in the instant action in separate counts in the first action. Furthermore, the timing and sequence of the events giving rise to the causes of action asserted in the instant action prevented appellant from raising and joining them in the first action. It is appellee, State Farm’s, conduct occurring after the July accident and in the course of the first action, which appellant claims was tortious and in breach of contract, that forms the basis of the causes of action asserted in the instant case. Thus, under the unusual procedural and factual circumstances of this case, the mandatory joinder provisions of Pa.R.C.P. 1020 furnish no basis for dismissal of the instant action.

Nor is dismissal justified on the grounds of res judicata or lis pendens. Res judicata is an affirmative defense which, under Pa.R.C.P. 1030, must be raised in a responsive pleading as new matter and which, if not pled, is waived pursuant to Pa.R.C.P. 1032. State Farm did not plead the defense of res judicata in the trial court and thus it has been waived. Callery v. Municipal Authority of Blythe Township, 432 Pa. 307, 243 A.2d 385 (1968); Lang v. Recht, 171 Pa.Super. 605, 91 A.2d 313 (1952); Margolis v. Miller, 170 Pa.Super. 148, 84 A.2d 213 (1951). State Farm raised res judicata for the first time on appeal. However, issues not raised in the lower court are waived and cannot be raised for the first time on appeal. Pa.R.A.P. 302(a). Thus, dismissal cannot be based on res judicata.

Lis pendens or prior action pending is a narrow doctrine. Dismissal on the grounds of lis pendens is valid only when it is established that the parties, the cause of action, the rights asserted, and the relief requested in an action are the same as those of a prior pending action. Dickerson v. Dickersons Overseas Company, 369 Pa. 244, 85 A.2d 102 (1952); Hessenbruch v. Markle, 194 Pa. 581, 45 A. 669 (1900); Glazer v. Cambridge Industries, Inc., 281 Pa.Super. 621, 422 A.2d 642 (1980); Raw v. Lehnert, 238 Pa.Super. 324, 357 A.2d 574 (1976); Taylor v. Humble Oil and Refining Co., 225 Pa.Super. 177, 311 A.2d 324 (1973). Since the cause of action, the rights asserted and the relief requested in the instant action are not the same as those of the first action, lis pendens is inapplicable.

In the first action appellant seeks recovery and asserts rights under the uninsured motorists provision of the State Farm insurance policy for injuries sustained in the July accident. In the instant action, appellant asserts in assumpsit that appellee has breached its contract and seeks damages for the breach. In trespass appellant seeks punitive damages, alleging appellee acted with malice for the purposes of harassing and frustrating appellant and with the intent of inflicting emotional distress upon him. The cause of action in the instant case arises not from the July accident but from State Farm’s alleged wrongful conduct occurring after the accident. Appellant contends that this conduct constitutes a breach of contract and a tort. Since the cause of action, rights asserted and relief requested in the two actions are not the same, the doctrine of lis pendens is inapplicable.

However, in D Ambrosio v. Pennsylvania National Mutual Insurance Co., 494 Pa. 501, 431 A.2d 966 (1981), our Supreme Court held that under Pennsylvania law there is no cause of action for punitive damages or damages for emotional distress because of an insurer’s alleged bad faith in denying a claim. In refusing to create such a cause of action in trespass, the Supreme Court recognized that an adequate remedy existed in assumpsit. Thus, in the instant case, I would reverse the trial court’s dismissal of the instant action, dismiss the count in trespass, but remand the assumpsit count.

Finally, in the interest of justice and judicial economy, I would stay the appeal in the first action, which is presently pending in our Court at No. 102 Philadelphia 1981, and since both that action and the instant action involve the common underlying question of Concord Mutual’s solvency pursuant to Pa.R.A.P. 513,1 would direct that the Order issued in the instant case on remand be consolidated with the pending appeal in the first case.

      . The dissent argues that Pa.R.Civ.P. 1020(d)(1) does not apply because appellee, rather than appellant, petitioned for the appointment of an arbitrator in the first action. Dissenting op. at 356. But the fact that appellee petitioned for the appointment of an arbitrator does not undermine the fact that it was appellant’s claim for insurance proceeds that was the subject of the arbitration. Appellee had no reason to petition the court for the appointment of an arbitrator except to facilitate the resolution of appellant’s claim. Thus the lower court found that “[t]his case was the second claim filed by plaintiff. The first claim was heard by an arbitrator appointed by the Court under the Pennsylvania Arbitration Act of 1927.” Slip op. at 1. The lower court’s denial of appellant’s exceptions to the arbitrator’s award in the first action was based on the fact that appellant "utterly failed to carry his burden of proof." Slip op. at 3. The lower court was thus entirely correct in concluding that the first claim, as well as the second, was brought by appellant.
      The dissent also argues that we should not dispose of this appeal on the basis of Rule 1020 because the parties have not argued the rule. Dissenting op. at 356. Although neither the parties nor the lower court referred specifically to Rule 1020, the policy that the rule promotes—that appellant should not be permitted to waste judicial resources by presenting a dispute involving one transaction in two separate actions—was the basis of appellee’s objection to the second action both in the lower court and on appeal: "This lawsuit arises out

      . See note 2 on page 545. of the same exact claim as was heard and considered by the arbitrator .... It is ... a duplicate cause of action to the arbitration already heard and decided and presently on appeal; it is wasteful of the Court’s time and is spurious." Defendant’s Preliminary Objections at 3. ”[T]he complaint ... fails to state a cause of action ... because the complaint indicated on its face that it alleged the same dispute dealt with in the arbitration proceeding.” Brief for Appellee at 8. The lower court dismissed appellant’s complaint in this action on the ground that “[t]his case was the second claim filed by plaintiff____ This second claim arises out of the same claim that was heard and denied by the arbitrator. The second claim is entirely spurious____” Slip op. at 1. It is precisely on that basis, with the additional authority of Pa.R.Civ.P. 1020(d), that we affirm the lower court’s order.
      2. Even if the dissent were correct that the cause of action now asserted before us is distinct from that asserted by appellant in his first action, we should disagree with its suggested disposition of the case. The underlying issue in the first action is whether appellant is entitled to receive uninsured motorist benefits from appellee. The first action is now on appeal to this court. If on that appeal we uphold the lower court, either on the ground that appellant did not timely file exceptions or on the merits, the conclusion will follow that appellant is not entitled to uninsured motorist benefits. That conclusion will be binding on appellant in his second action—the action before us in this case. This will be true by virtue of the doctrine of .collateral estoppel. See generally Lebeau v. Lebeau, 258 Pa.Super. 519, 393 A.2d 480 (1978). Consequently, the action before us would then have to be dismissed. If, on the other hand, the lower court’s decision in the first action is reversed on appeal, the conclusion will follow that appellant is entitled to uninsured motorist benefits. That conclusion will be binding on appellee. Therefore, if the dissent were correct that appellant has not waived but may maintain his second action, the only issue that the lower court would need to decide in that action would be whether appellant was entitled to punitive damages. See generally, Lebeau v. Lebeau, supra. It follows that, on its view of the case, the dissent should not argue for reversal of the lower court’s order but for a stay, pending disposition of the appeal in the first action. Instead, the dissent recommends that not this action but the first action be stayed. Wc think, however, that “the interest of justice and judicial economy,” dissenting op. at 357, will be better served if we dispose of this action now.


author: WATKINS, Judge:

text:
    459 A.2d 358
    Laura CONTRISCIANE, Executrix of the Estate of Kenneth A. Contrisciane, Deceased v. UTICA MUTUAL INSURANCE COMPANY and The Aetna Casualty and Surety Co. Appeal of UTICA MUTUAL INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued January 18, 1982.
    Filed March 18, 1983.
    Reargument Denied May 25, 1983.
    Petition for Allowance of Appeal Granted Oct. 4, 1983.

      Charles W. Craven, Philadelphia, for appellant.
    Peter J. Rohana, Springfield, for Contrisciane, appellee.
    Robert A. Rosin, Philadelphia, for Aetna, appellee.
    Before JOHNSON, WATKINS and LIPEZ, JJ.
   WATKINS, Judge:

This appeal comes to us from a judgment and order of the Court of Common Pleas of Delaware County modifying an arbitrator’s award.

The case arises from a sequence of events which occurred on December 26, 1976, which resulted in the death of Kenneth A Contrisciane. The decedent was operating an automobile owned by his employer, Future Cars, Inc., when he was involved in a minor traffic accident with a car operated by Ann Killen. A police officer quickly arrived, at which time the decedent was standing by the driver’s window of Ms. Killen’s car exchanging information with her. The police officer requested the decedent to get his owner’s card and operator’s license from his car. When the decedent returned, the police officer was sitting in the police car completing an accident report. While the decedent was standing beside the police car, he was struck and killed by an automobile driven by David Patterson, an uninsured motorist.

The appellee, as executrix of the estate of the decedent, filed suit against Utica Mutual Insurance Company, the motor vehicle insurance carrier for the decedent’s employer, and also against Aetna Casualty and Surety Company, the motor vehicle insurance carrier for the decedent’s father. The Utica policy covered fifteen vehicles with limits of $15,000—$30,000, and The Aetna policy covered three vehicles with the same limits. This matter proceeded to arbitration in accordance with the Pennsylvania Arbitration Act of 1927, 5 P.S. 161 et seq. The arbitrators concluded that the appellee was entitled to compensatory damages in the amount of $200,000, but decided that the appellee’s recovery was limited to $15,000 from Aetna. The panel concluded that since the decedent was not a named insured under any of the policies and he did not pay any of the premiums, he was only entitled to coverage under one policy. The panel also found that the appellee could not recover under the Utica policy since the decedent was a pedestrian at the time he was struck. According to the terms of the Utica policy, appellee’s decedent could be considered an insured only if he was “occupying” a vehicle insured by Utica. The Utica policy defined the term “occupying” as “in or upon or entering into or alighting from.” The panel found as a matter of fact that the decedent was standing on the highway approximately ninety-seven feet from his employer’s vehicle when he was struck and therefore was not occupying the vehicle. Appellee filed a petition to Vacate, Modify, or Correct an Arbitration Award on November 20, 1978. The Court of Common Pleas held that the decedent was occupying his employer’s vehicle at the time he was struck and modified the award so as to exonerate Aetna and hold Utica liable for $200,000.

Utica appealed asserting that the Court of Common Pleas exceeded its powers of review when it modified the arbitrator’s award. Section 11 of Arbitration Act of 1927, 5 P.S. 171, provides in pertinent part that:

In either of the following cases the court shall make an order modifying or correcting the award upon the application of any party to the arbitration:
Where the award is against the law, and is such that had it been a verdict of the jury the court would have entered different or other judgment notwithstanding the verdict. The court may modify and correct the award or resubmit the matter to the arbitrators.

The arbitrators found as a matter of fact that appellee’s decedent was standing ninety-seven feet from his employer’s vehicle at the time he was struck. After interpreting the terms of the Utica policy, they found as a matter of law that the decedent was not occupying the vehicle and, therefore, was not covered by the Utica policy. It is well established that the interpretation of an insurance policy is a question of law for the court. Blocker v. Aetna Casualty and Surety Co., 232 Pa.Superior Ct. 111, 332 A.2d 476, 477 (1975). Since the determination of whether the decedent was occupying the car is really an interpretation of the terms of the insurance policy, the lower court did not exceed its powers by reviewing the arbitrator’s decision.

Appellant also contends that the Court of Common Pleas erred in finding that the decedent was occupying the vehicle at the time of the accident. The question of whether one is “occupying” a vehicle under circumstances such as we have here is one of first impression. The general rule of construction used by the courts when interpreting an insurance policy is that “an insurance policy is to be construed most strongly against the insurer and liberally in favor of the insured to effect the policy’s dominant purpose of indemnity or payment to the insured where the terms of the policy are ambiguous or uncertain and the intention of the parties is unclear.” Eichelberger v. Warner, 290 Pa.Superior Ct. 269, 434 A.2d 747, 749 (1981). This rule has been used indirectly in interpreting the term “occupying” in order to include situations where the claimant is physically outside the insured vehicle at the time of the accident, but has not terminated his use of the vehicle. Hathcox v. Liberty Mutual Insurance Co., 90 Mich.App. 511, 282 N.W.2d 374 (1979); Robson v. Lightening Rod Mutual Insurance Co., 59 Ohio App.2d 261, 393 N.E.2d 1053 (1978). The lower court applied a “vehicle-oriented/highway-oriented” test in order to find that the decedent was occupying his vehicle when he was struck. There were primarily two considerations which led the lower court to conclude that the decedent had not severed his connection with the vehicle and had not terminated his use of the vehicle. The first was the fact that the vehicle remained on the highway throughout the decedent's conversation with Ms. Killen and the police officer. The second was the fact that the decedent's passenger remained in the vehicle the entire time. Therefore, it is clear that the decedent was still vehicle-oriented. Such an interpretation is consistent with the mandates of the Uninsured Motorist Act, 40 P.S. 2000, which provides in pertinent part:

(a) No motor vehicle liability policy of insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state, unless coverage is provided therein or supplemental thereto.... for the protection of persons insured thereunder or legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom...

The decedent was “using” the motor vehicle when he left his passenger in the vehicle to go and exchange information with Ms. Killen and the police officer and must, therefore, be found to have been “occupying” the vehicle at that time. Any other interpretation of the term “occupying” would be in derogation of and repugnant to the Uninsured Motorists Act. Furthermore in Tyler v. INA, 311 Pa.Superior Ct. 25, 457 A.2d 95 (1983) this Court held that an uninsured passenger on a bus who had alighted from the bus and taken three or four steps toward the nearest shoulder of the road when she was struck by a motorcycle was covered under the bus company’s no-fault insurance coverage as an “occupant” of the vehicle. Thus, it is clear that one need not be physically present in a vehicle to be an “occupant” thereof for no-fault insurance purposes. These considerations lead to the conclusion that the decedent was insured under the Utica policy.

The next issue raised is whether the separate uninsured motorist coverages under the Utica policy should be cumulated so as to allow the appellee to recover the $200,-000 to which the arbitrators found she was entitled. Appellant contends that the “Limits of Liability” clause in the policy precludes such cumulation. That clause provides that:

Regardless of the number of ... highway vehicles to which this policy applies, (a) The limit of liability stated in the schedule as applicable to “each person” is the limit of the company’s liability for all damages because of bodily injury sustained by one person as the result of any one accident...

The stated limit of liability for bodily injury sustained by one person is $15,000, and appellant contends that the recovery should be limited to that amount.

The Supreme Court enunciated the conditions to be met in order to allow such cumulation in State Farm Mutual Life Insurance Co. v. Williams, 481 Pa. 130, 392 A.2d 281 (1978). “The insured may recover uninsured motorists benefits: (1) If the insured party paid the premiums of the policy and was the named insured; and (2) If the recovery under the second uninsured motorist coverage was limited to actual damages; and (3) If the recovery is not limited by the statutory exclusions.” State Farm Mutual Life Insurance Co. v. Williams, supra. The first contention has not been met here since the decedent did not pay the premiums and he was not a named insured under the policy. However, this court has previously modified the first condition. In Sones v. Aetna Casualty and Surety Co., 270 Pa.Superior Ct. 330, 411 A.2d 552 (1979), the court was faced with the cumulation issue when dealing with a limitation of liability nearly identical to the one involved here. It was written that “a liability-limiting provision in a policy, the effect of which is to prohibit and preclude an injured person who is an insured under the policy from pyramiding or cumulating the separate uninsured motorist coverages available to him is in derogation of and repugnant to the Uninsured Motorist Act which requires uninsured motorist coverage in all policies of insurance with respect to each motor vehicle insured.” (Emphasis added.) Sones v. Aetna Casualty and Surety Co., supra. Concentrating on the emphasized language, it becomes clear that this court does not believe that one must be a named or designated insured under a policy in order to cumulate the uninsured motorist coverage. Therefore, since it has already been determined that the decedent was insured under the Utica policy, cumulation may be allowed.

The issue of the payment of premiums must also be addressed. In Marchese v. Aetna Casualty and Surety Co., 284 Pa.Superior 579, 426 A.2d 646 (1981), this court dealt with a policy which covered twenty dealers plates owned by Wrona, one of which was designated in the policy for the use of Márchese. Due to the fact that Márchese was insured under the policy, the court allowed the coverage to be “stacked” even holding that that requirement was not a condition precedent to recovery in all cases.

All of the necessary conditions for cumulation having been met, the appellee is entitled to cumulate, up to the amount of the loss, the coverage available to the decedent under the other insured vehicles.

Judgment of the lower court holding that the decedent was occupying his employer’s vehicle at the time he was struck and modifying the award so as to exonerate Aetna and hold Utica liable for $200,000 is affirmed.

LIPEZ, J., concurs in the result.


author: CAVANAUGH, Judge:

text:
    459 A.2d 362
    COMMONWEALTH of Pennsylvania, Appellant, v. John MAXWELL. COMMONWEALTH of Pennsylvania, v. John MAXWELL, Appellant.
    Superior Court of Pennsylvania.
    Argued May 11, 1982.
    Filed March 25, 1983.
    Reargument Denied May 25, 1983.
    Petition for Allowance of Appeal Denied Nov. 18, 1983.

      Maxine J. Stotland, Assistant District Attorney, Philadelphia, for Commonwealth, appellant in No. 1760 and appellee in No. 1764.
    David Hirsh, Dresher, for appellant in No. 1764 and appellee in No. 1760.
    Before CAVANAUGH, CIRILLO and HOFFMAN, JJ.
   CAVANAUGH, Judge:

This is an appeal from a judgment of sentence of the Court of Common Pleas of Philadelphia County. The relevant facts of the instant case are as follows: Maxwell was arrested and charged with two counts of robbery. Prior to the trial, Maxwell filed a motion pursuant to Pennsylvania Rule of Criminal Procedure 1101 to waive a trial by jury. The request was opposed by the Commonwealth which asserted an absolute right to a jury trial pursuant to 42 Pa.C.S.A. § 5104(c). Maxwell’s motion was denied. He was subsequently convicted by a jury on both counts of robbery and sentenced to concurrent terms of probation and fined. The Commonwealth then filed a motion to modify sentence, requesting the court to impose a minimum sentence of four years imprisonment upon Maxwell as a repeat offender.

Both the Commonwealth and Maxwell have taken appeals; Maxwell from the order denying his request for a non-jury trial and the Commonwealth from the judgment of sentence. The appeals were consolidated in accordance with Pa.R.A.P. No. 2136.

The crucial issue in this appeal is Maxwell’s contention that the lower court erred in denying his motion for waiver of a jury trial.

Maxwell claims the issue before the lower court was not simply whether he should be permitted to waive his right to a jury trial under Pa.R.Crim.P. 1101, but rather the Commonwealth’s right to a jury trial under 42 Pa.C.S.A. § 5104(c) in consideration of his rights under Rule 1101.

Our review of the record discloses that the conflict raised by Maxwell between the above mentioned rule and statute was directed to the lower court's attention, however, the court did not address this issue. The following excerpt from the notes of testimony is evidence of this point:

[Defense Counsel Co-Defendant No. 1]: There is a separate motion entitled motion for trial by judge alone, which has a memo on it which primarily addresses the initial conflict that exists between Rule 1101 of the Supreme Court Rules of Criminal Procedure which determines the defendant’s right to waive a jury trial without any inference to the Commonwealth and Section 5104 of Crimes Code.
[Defense Counsel Co-Defendant No. 2:] The Judiciary Act purports to give the Commonwealth the same right to a jury trial as the defendant possesses. As this case has come to the system, it having been designated as a career criminal procedure, it is accompanied by the Commonwealth’s demand for a jury trial and it was scheduled and routed in connection with both of those.

(N.T., 8/25/80 at 89).

The lower court’s action in this matter and the recent Pennsylvania Supreme Court decision in Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982) warrants this court’s consideration of this issue.

In Commonwealth v. Sorrell, supra, the Pennsylvania Supreme Court held that 42 Pa.C.S.A. § 5104(c) is unconstitutional. As Chief Justice Roberts (then Justice Roberts), writing for the majority, explained:

By conferring upon the prosecution an absolute right to jury trial, 42 Pa.C.S.A. § 5104(c) precludes the trial court from exercising the discretion conferred by Rule 1101 in assessing whether a non-jury trial should be permitted. Unlike Rule 1101, which provides for an impartial determination and fosters public accountability on the part of the prosecutor by encouraging him to state his position on the record. 42 Pa.C.S.A. § 5104(c) provides for prosecutorial control of the accused’s motion to waive trial by jury without any provision for the prosecutor’s accountability through judicial review____
In enacting 42 Pa.C.S.A. § 5104(c), a statute inconsistent with an existing rule of criminal procedure, the Legislature exceeded its constitutional authority. As Rule 1101 was validly adopted and amended pursuant to this Court’s constitutional authority and obligation to promulgate rules of procedure to govern courts throughout the Commonwealth, 42 Pa.C.S.A. § 5104(c), must be deemed suspended pursuant to Pa. Const.Art. V, 10(c) and declared unconstitutional. (500 Pa. at 361, 456 A.2d at 1328-1329).

Thus the court in Sorrell held that 42 Pa.C.S.A. § 5104(c) is not a valid basis for a lower court’s denial of a defendant’s motion for a non-jury trial. Accordingly we must now direct our attention to Maxwell’s argument that the lower court abused its discretion in denying the waiver request in this case.

Rule 1101 of the Pennsylvania Rules of Criminal Procedure provides for a waiver of a jury trial:

In all cases, the defendant may waive a jury trial with the consent of his attorney, if any, and approval by a judge of the court in which the case is pending, and elect to be tried by a judge without a jury. The judge shall ascertain from the defendant whether this is a knowing and intelligent waiver and such colloquy shall appear on the record. The waiver shall be in writing made a part of the record and shall be in the following form: (emphasis added).

The trial court is not constitutionally prohibited from denying a defendant’s request to waive a jury trial. Commonwealth v. Correa, 485 Pa. 376, 402 A.2d 1011 (1979); Commonwealth v. Garrison, 242 Pa.Super. 509, 364 A.2d 388 (1976). However, in analyzing whether to grant such a motion the court must exercise its discretion in determining whether to approve the waiver. Commonwealth v. Giaccio, 311 Pa.Super. 259, 457 A.2d 875 (1983); Commonwealth v. Garrison, 242 Pa.Super. at 515, 364 A.2d at 390-391.

There are no guidelines contained in Rule 1101 to assist trial courts in exercising their discretionary power when deciding a defendant’s motion to waive a jury trial. There is also limited case law in this aréa; therefore, we must review a trial court’s decision in this type on action on a case by case basis. Commonwealth v. Giaccio, supra.

In the instant appeal the record does not indicate the reasons for Maxwell’s request to waive his right to a jury trial, it does not reflect the Commonwealth’s reason for its demand for a jury trial and it is void of any colloquy between the lower court and Maxwell, which is required by Rule 1101.

The following testimony indicates that the lower court’s sole justification for denying Maxwell’s- request was for means of judicial economy.

The Court: If I were to grant your request, would you ask that I recuse myself?
[Defense Counsel Co-Defendant No. 2]: We would ask that you recuse yourself, sir.
The Court: I guess you all join in that same request?
[Defense Counsel Co-Defendant No. 2]: That is a request.
The Court: If I were to grant the motion to allow them to be tried without a jury, my question is, would you ask me to recuse myself?
[Defense Counsel Co-Defendant No. 2]: Yes, sir. I think, Judge, by the very nature of the circumstances which brought this case before Your Honor, you have been exposed to the fact there are prior—
The Court: You don’t have to give me any reason.
[Defense Counsel Co-Defendant No. 2]: Yes, sir, that would be the request.
The Court: And you join in? In other words, you would also ask me to recuse myself?
[Counsel for Defendant-Maxwell]: Yes, sir. I might add, we are joining in this motion orally, sir. There is no written motion.
The Court: I am aware of that. I am allowing you to join in the motion. My question to you is, if I grant the motion, would you ask me to recuse myself?
[Counsel for Defendant-Maxwell]: Yes, sir.
The Court: Now, gentlemen, this case is all ready for trial. The Commonwealth is ready and the defendants are ready. If I were to grant the motion, it would mean sending the case back. This case has been assigned to this courtroom and it is anticipated it will take the greater part of a week. That would mean the courtroom would remain idle. I am not sure another case could be sent here. In view of the fact that if I granted your request to send it back, it would leave the courtroom empty for a whole week. I am going to deny your request.
Any other motions? (N.T., 8/25/80, at 89-91).

While judicial economy is certainly a vital concern of our trial courts, in this instance the court did not have the benefit of the Supreme Court decision in Sorrell declaring 42 Pa.C.S.A. § 5104(c) unconstitutional, nor did it examine and weigh Maxwell’s reasons for wanting a non-jury trial against the desire to have the designated jury room occupied by a jury trial rather than reassign the case and seek another jury case.

We therefore reverse and remand for a new trial with instructions to the lower court that if Maxwell on re-trial resubmits a motion for waiver of a jury trial the court should proceed in accordance with Rule 1101. Jurisdiction is relinquished.

      . Act of December 6, 1972, P.L. 1482, No. 334, Sec. 1, as amended by the Act of June 24, 1976, P.L. 425 No. 102, Sec. 1; 18 Pa.C.S.A. § 3701.

      . Maxwell was initially convicted of conspiracy and two counts of robbery, but the trial court arrested judgment on the charge of conspiracy.

      . The Act of November 26, 1978, P.L. 1316, 319, Section 5(a) (following 42 Pa.C.S.A. §§ 2155 and 9721) states:
      Until sentencing guidelines adopted by the Pennsylvania Commission on Sentencing and relating to the offenses set out in this subsection become effective pursuant to 18 Pa.C.S.A. § 1385 (relating to publication of guidelines for sentencing), when any person is convicted in any court of this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery, aggravated assault as defined in 18 Pa.C.S.A. § 2702(a)(1) (relating to aggravated assault) involving the use of a firearm, arson or kidnapping, or of attempt to commit any of these crimes, and when that person has been previously convicted in this Commonwealth, or any of the offenses set forth in this section or their equivalent, the sentencing court shall consider as a guideline in imposing sentence that such person be sentenced to a minimum term of not less than four years imprisonment.
      Maxwell was convicted of robbery on two previous occasions.

      . We decline to reach the other issues presented in this appeal due to our disposition of this matter.

      . We held our disposition in this case pending the Supreme Court decision in Sorrell.