author: POPOVICH, Judge:

text:
    514 A.2d 582
    Joseph McCABE v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY and Travelers Insurance Company. Appeal of PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued March 13, 1986.
    Filed Aug. 25, 1986.

      David M. McCormick, Philadelphia, for appellant.
    Eugene F. Jarrell, III, Media, for McCabe, appellee. Charles Craven, Philadelphia, for Travelers, appellee.
    Before WICKERSHAM, WIEAND and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal by appellant, Prudential Property and Casualty Insurance Company (hereinafter referred to as Prudential), from an order entered in the Delaware County Court of Common Pleas granting, inter alia, Travelers Insurance Company’s (hereinafter referred to as Travelers) motion for summary judgment against Prudential for indemnity, for any and all amounts paid by Travelers to Joseph McCabe in satisfaction of his claims for Pennsylvania No-Fault Motor Vehicle Insurance Benefits.

On or about May 14, 1981, while walking across a portion of Interstate 95 located in Pennsylvania, Joseph McCabe was struck by an automobile owned and operated by Kevin Frissora. Mr. Frissora was a Connecticut resident and his automobile was insured by Prudential under a policy written in accordance with the Connecticut No-Fault Motor Vehicle Statute. Mr. McCabe had no insurance of his own, and, therefore, applied to the Pennsylvania Assigned Claims Plan for no-fault benefits. The Pennsylvania Assigned Claims Plan assigned his claim to Travelers. Travelers denied Mr. McCabe’s claim, and, in turn, Mr. McCabe instituted this action against both Prudential and Travelers in order to recover under the Pennsylvania No-Fault Motor Vehicle Insurance Act. The parties filed motions for summary judgment.

Summary judgment was granted in favor of Joseph McCabe and against Travelers for no-fault benefits and attorney’s fees. The lower court also granted Travelers’ motion for summary judgment against Prudential for indemnity for any and all amounts paid by Travelers to Joseph McCabe in satisfaction of his claims for Pennsylvania No-Fault Motor Vehicle Insurance Benefits. This appeal followed.

Appellant raises three issues: (1) whether a pedestrian injured in Pennsylvania, when struck by a vehicle insured in Connecticut, may obtain “no-fault benefits” under that vehicle’s policy when he is excluded from coverage by a policy provision written in compliance with Connecticut law; (2) whether the Pennsylvania No-Fault Act imposes liability for the payment of “no-fault benefits” to pedestrians injured in Pennsylvania, on a Connecticut policy of insurance which specifically excludes such coverage; and, (3) whether the denial of “no-fault benefits” under the Connecticut policy was unreasonable and justified the imposition of attorney’s fees against the appellant.

The Pennsylvania No-Fault Motor Vehicle Insurance Act (hereinafter referred to as Pennsylvania No-Fault Act, the Act of July 19, 1974; P.L. 489, No. 176, Act I, § 101, 40 P.S.A. § 1009.101, et seq.) requires that:

Every owner of a motor vehicle ... operated in this Commonwealth by the owner ... shall continuously provide security covering such motor vehicle while such vehicle is either present or registered in the Commonwealth of Pennsylvania. Security shall be provided for the payment of basic loss benefits____

40 P.S.A. § 1009.104(a). (Emphasis added) All owners of a motor vehicle operated in Pennsylvania are required to provide such security. See, Greathouse v. Federal Kemper Insurance Co., 13 D. & C.3d 785, 789 (1980).

Many states, including Connecticut, specifically require nonresident owners of motor vehicles to maintain that state’s minimum level of no-fault security while that vehicle is operating within the state. Connecticut, Conn.Gen.Stat. Rev. § 38-327(a)(2); Florida, West’s F.S.A. § 627.733(2); Colorado, C.R.S. (1973), 10-4-705.

Under section 1009.201(a) of the Pennsylvania No-Fault Act, appellant, Prudential, concedes that Joseph McCabe, an uninsured pedestrian who was injured when he was struck by a Connecticut insured automobile while it was being operated in Pennsylvania, is entitled to no-fault benefits. The Act provides that “if the accident resulting in injury occurs in this Commonwealth, any victim or any survivor of a deceased victim is entitled to receive basic loss benefits in accordance with the provisions of this act.” (Emphasis added.) 40 P.S.A. § 1009.201(a).

As Prudential emphasizes in its brief, the real dispute concerns the source of those benefits. Section 204(a) of the Pennsylvania No-Fault Act deals with McCabe’s source of benefits. Section 204(a), which is entitled “Source of Basic Restoration Benefits”, provides:

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

40 P.S.A. § 1009.204(a).

In Tyler v. Insurance Co. of North America, 311 Pa.Super. 25, 30, 457 A.2d 95, 97 (1983), the court ruled that, in order to determine the applicable source of basic loss benefits under Section 204’s priority system, each preceding subsection must be excluded before the next subsection may be considered. The court further held that the security provided by the assigned claims plan is applicable only as a last resort.

In the instant case, the inapplicability of subsections (1), (2) and (3) can easily be established. At the time of the accident, Joseph McCabe, the basic loss benefits applicant, was not an employee in a vehicle provided by his employer. He was also not an insured under any policy of insurance or an occupant of a motor vehicle involved in an accident resulting in injury.

It is Prudential’s contention that subsection (4), “an individual who is not an insured or the driver or other occupant of a motor vehicle involved in an accident resulting in injury is the security covering any motor vehicle involved in such accident”, does not apply in this case. 40 P.S.A. § 1009.-204(a). Prudential contends that the “security” which covers the Connecticut automobile involved in the accident excludes Joseph McCabe from coverage pursuant to a policy provision that was written in compliance with Connecticut law. We agree.

The Prudential policy, in compliance with Connecticut law, provides an “out-of-state” endorsement. The endorsement, PAC 243, provides:

While you are in another state, territory or province of Canada, in which laws require non-residents to carry higher limits or other coverages than those provided by the policy, the limits and coverages of this policy will change to meet the requirements of those laws.

The out-of-state endorsement is written in compliance with Con.Gen.Stat.Rev. § 38-175b(b).

Section 38-175b(b) provides:

(b) Every such policy issued, renewed, amended or endorsed on or after April 8, 1974 shall provide that if the provisions of the motor vehicle financial responsibility law or the motor vehicle compulsory insurance law or any similar law of any state, territory or possession of the United States of America or any province of Canada, require insurance with respect to the operation or use of the motor vehicle in such state, territory, or possession or province and such insurance requirements are greater than the insurance provided by the policy, the limits of the company’s liability and the kinds of coverage afforded by the policy shall be as set forth in such law, in lieu of the insurance otherwise provided by the policy, but only to the extent required by such law and only with respect to the operation or use of the motor vehicle in such state, territory, possession or province; provided the insurance under the subsection shall be reduced to the extent that there is other valid and collectible insurance under such policy or any other motor vehicle insurance policy. In no event shall any person be entitled to receive duplicate payments for the same element of loss.

Under Con.Gen.Stat.Rev. § 38-175b(b), the Connecticut legislature mandated that all no-fault policies issued in Connecticut shall provide expanded coverage to comply with the state’s law in which the motor vehicle is operated. However, the problem lies in endorsement PAC-255 to Prudential’s policy, which specifically excludes coverage for bodily injuries caused to pedestrians. This endorsement provides:

The company agrees with the named insured, subject to all of the provisions of this endorsement and to all of the provisions of the policy except as modified herein, as follows:
Section 1
Basic Reparations Benefits Coverage
The company will pay, to or for the benefit of each eligible injured person, or his dependent survivors, basic reparations benefits for economic loss as consisting of: (a) Liable expense, (b) work loss and (c) survivor’s loss resulting from bodily injury, accidently caused and arising out of the ownership, maintenance or use, including loading or unloading, of a motor vehicle as a motor vehicle.
Exclusions
The insurance under this endorsement does not apply ... (c) to bodily injury to any pedestrian, other than a basic reparations insured, if the accident occurs outside of Connecticut; ...

PAC-255 is written in compliance with Con.Gen.Stat.Rev. § 38-321 which provides:

(c) The insurer of the owner is not liable to pay such benefits [basic loss benefits] to a pedestrian other than a basic reparations insured if the accident occurs outside this state or to any person otherwise entitled to benefits if the accident occurs outside the United States of America in territories or possession of Canada.

The important question is which state’s law applies when interpreting an insurance contract. In the instant case, Pennsylvania as the forum state looks first to its choice of law rule.

In the case of Griffith v. United Airlines, 416 Pa. 1, 203 A.2d 796 (1964), our Supreme Court laid to rest the lex loci delecti rule that existed in Pennsylvania for many years. Instead, the Griffith court held that the court must now apply the law of the state having the most significant contacts or relationships with the particular issue. In the case of In Re Estate of Agostini, 311 Pa.Super. 233, 252, 457 A.2d 861, 871 (1983), the court explained:

When doing this, it must be remembered that a mere counting of contacts is not what is involved. The weight of a particular state’s contacts must be measured on a qualitative rather than quantitative scale. Cipolla v. Shaposka, 439 Pa. 563, 566, 267 A.2d 854, 856 (1970). When applied to the case at bar, this means we must determine which state — Pennsylvania or Florida — “has demonstrated, by reason of its policies and their connection and relevance to the matter in dispute, a priority of interest in the application of its rule of law.” McSwain v. McSwain, 420 Pa. 86, 94, 215 A.2d 677, 682 (1966).

The Griffith case dealt with choice of law problems arising in tort actions. However, in Nationwide Mutual Insurance Co. v. Walter, 290 Pa.Super. 129, 137, 434 A.2d 164, 167-68 (1981), this court ruled that interest analysis could be applied to a contract action to determine the coverage of an automobile liability insurance policy. Accord Caputo v. Allstate Ins. Co., 344 Pa.Super. 1, 6-9, 495 A.2d 959, 961-63 (1985).

As in the case at bar, the problem in Walter centered around an exclusionary clause found in a policy of insurance, i.e. excluding garagemen from coverage. The interest analysis in Walter is very similar to the instant case, and, therefore, we include it in our review.

The court in Walter held:

In this contract case, the state having the most vital contacts with the policy of insurance involved was New Jersey. The policy was issued in New Jersey by the appellant in June, 1972, to Mr. Walter, a resident of New Jersey. It was issued for the twofold purpose of giving insurance protection to Mr. Walter and others as set forth in the policy, and to comply with the requirements set forth in the New Jersey Motor Vehicle Security Responsibility Statute, supra. No matter where Mr. Fetter drove his car or gave consent to others to operate his vehicle, he had the right to expect that his policy conformed to New Jersey law and that the laws of New Jersey would apply in interpreting the policy. Pennsylvania had no contact with the transaction involving the insurance policy. It was by mere happenstance that the automobile was involved in an accident while located in Pennsylvania. As noted in Griffith v. United Airlines, Inc., 416 Pa. 24, 203 A.2d 806: “[T]he site of the accident purely fortuitous.”
.....Appellant argues that Pennsylvania had the most significant contacts as the car was located in Pennsylvania when the accident occurred having been previously delivered to Bucks County Imports by Mr. Walter, the accident occurred in Pennsylvania, and both occupants of the car at the time of the accident were Pennsylvania residents. Appellant overlooks the fact that these points of contact with Pennsylvania pertained to the alleged tort involved. We are concerned with the contract of insurance and as to the insurance policy New Jersey had the most significant contacts. The appellant issued an insurance policy to a New Jersey resident to cover an automobile located in New Jersey. The policy itself stated that any terms of the policy that are in conflict with the statutes of the state in which the policy is issued were amended to conform to the state statute. Finally, the purpose of Mr. Walter in obtaining the policy was, at least partially, to comply with the laws of New Jersey.

Nationwide Mutual Insurance Co. v. Walter, supra, 290 Pa.Super. at 136-138, 434 A.2d at 167-68.

In the instant case, Prudential argues that Connecticut law would apply since Kevin Frissora lived in Connecticut, and the Prudential policy of Insurance was executed there. It also contends that “underlying these contacts are Connecticut’s sovereign interests that the rights of its residents and those who do business in its state are governed by Connecticut law and that its insurance law, as applied to the insurance policy, will be given full faith and credit by a sister state.” Finally, Prudential alleges that Connecticut has an interest in minimizing insurance premiums for its residents. (Appellant’s Brief, p. 14).

Appellees argue that Pennsylvania law would apply as well. The victim is a resident of Pennsylvania, and the accident occurred there. Both Prudential and Travelers are licensed to do business in Pennsylvania.

However, in this case, Pennsylvania had no contact with the transaction involving the insurance policy. It was by mere happenstance that the Connecticut automobile owned and operated by Kevin Frissora was involved in an accident while located in Pennsylvania. Appellees overlook the fact that the points of contact with Pennsylvania which they list pertain to the alleged tort involved. At this time, we are concerned with contract of insurance, and, as to the insurance policy, Connecticut had the most significant contacts. Nationwide Mutual Insurance Co. v. Walter, supra, 290 Pa.Superior Ct. at 138, 434 A.2d at 168.

In Votedian v. General Accident Fire and Life Assurance Corporation, 330 Pa.Super. 13, 16-17, 478 A.2d 1324, 1326 (1984), the court held that the language of a policy of insurance is clear and unambiguous, unless the provision violates public policy, a court is not justified in deviating from the plain language of the policy except in rare instances. When the court undertakes to interpret a policy of insurance, as in interpreting other contracts, its goal is “to ascertain the intent of the parties as manifested by the language of the written instrument. Where a provision of a policy is ambiguous, the policy provision is to be construed in favor of the insured and against the insurer, the drafter of the agreement.” Id., 330 Pa.Superior Ct. at 16, 478 A.2d at 1326. Quoting Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 305, 469 A.2d 563, 566 (1983).

Appellees reason that the statutory provisions of the Connecticut No-Fault Act, together with the plain and ordinary meaning of the language of the out-of-state endorsement in Prudential’s policy of insurance, indicate that Kevin Frissora’s coverage is increased to the level of coverage required by the Pennsylvania No-Fault Act. However, the plain language contained in the “out-of-state pedestrian exclusion” clearly shows that Joseph McCabe, as an out-of-state pedestrian, is not entitled to no-fault benefits under the policy of insurance issued by Prudential in compliance with the Connecticut No-Fault Act. These provisions are complimentary and not conflicting. This court will not read into the Prudential policy of insurance an ambiguity which does not exist. Votedian v. General Accident Fire and Life Assurance Corporation, supra, 330 Pa.Superior Ct. at 20, 478 A.2d at 1328.

Therefore, we vacate the lower court order requiring Prudential to indemnify Travelers for any and all amounts paid by Travelers to Joseph McCabe in satisfaction of Mr. McCabe’s claim. However, Mr. McCabe is not without recourse since he is still eligible for Pennsylvania No-Fault Benefits under Section 204(a)(5) of the Pennsylvania No-Fault Act, dealing with applicable assigned claims plan. 40 P.S.A. § 1009.204(a)(5).

In view of our disposition of the issues in this case, we do not need to address the remaining question concerning attorney’s fees raised in this appeal.

Accordingly, the order of the Court of Common Pleas granting Travelers’ motion for summary judgment against Prudential is vacated, and the case is remanded for disposition in accordance with this opinion.

Jurisdiction is relinquished.

WIEAND, J., concurs in the result.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    514 A.2d 587
    ESTATE OF Bennie B. ROZANSKI, a/k/a Benjamin Rozanski, a/k/a Ben Rozanski, Deceased. Appeal of ESTATE OF Bennie B. ROZANSKI, a/k/a Benjamin Rozanski, a/k/a Ben Rozanski, By and Through Its Administratrix, Lottie M. ROZANSKI.
    Superior Court of Pennsylvania.
    Argued May 14, 1986.
    Filed Aug. 25, 1986.

      Joseph Falchek, Wilkes-Barre, for appellant.
    Before CAVANAUGH, WICKERSHAM and ROBERTS, JJ.
   CAVANAUGH, Judge:

Bennie B. Rozanski died on December 17, 1980. It was alleged in the petition for grant of letters of administration that Mr. Rozanski died intestate. Letters of administration were granted by the Register of Wills to his mother, Lottie M. Rozanski. The administration of the estate proceeded and the administratrix filed an account and petition for adjudication. The account was audited and confirmed absolutely in February, 1982.

In July, 1982, Shirley Carter, a friend of the decedent’s, filed a rule to show cause why the letters of administration should not be revoked and a letter dated April 26, 1978 admitted to probate as the decedent’s last will and testament. The court determined that the writing was in fact testamentary in nature and letters of administration c.t.a. were issued to Lottie M. Rozanski. The court directed the filing of an account and schedule of distribution. A decree nisi was entered. Exceptions were dismissed and a final decree was entered by the court below. The administratrix c.t.a. has appealed to this court.

On appeal the appellant does not contend that the court erred in finding that the letter of April 26, 1978 was testamentary in character but rather that the devise and bequest to Ms. Carter were subject to conditions precedent and subsequent. The letter of April 26, 1978 in its entirety was as follows:

Dear Mom,
In case anything should ever happen to me, please do the following things for me.
(1) I want you to have all my stocks and bonds. The stock certificates and bonds are in a safety deposit box at the American Bank in the shopping center near Boscov’s and some are at 467 Beechwood Ave., Lebanon in the cupboard with the sliding doors. I also have 2 or 3 reinvestment accounts for some stocks. They send statements out about 3 or 4 times a year. You can have everything in the safety deposit box also. I also want you to have my Connecticut Life Insurance policy (12,-500.00) and all my bank accounts. (1) Harris Savings & Loan Association in Lebanon Plaza. (2) Dauphin Deposit on State Drive in Lebanon. (3) Checking account in First Eastern Bank of Wilkes-Barre. (4) Savings account at Credit Union, V.A. Hospital, Lebanon. You can also have everything in my room at home (60 Hudson Rd., Plains, Pa.)
(2) If it can be done, and if it will not be too much of a burden, and if she can make the payments, then I would like to give my house at 467 Beechwood Ave., Lebanon, and everything in it, to Shirley. (Shirley Carter) I want her to have a home. I know money cannot repay her for all the years of her life I wasted. I would also like her to have my Government Insurance policy that I have with the V.A., ($20,000+). I also want her to have my automobile, 1977 Oldsmobile.
(3) I also would like you to have everything else I own, that I may have forgotten to put down here. You can if you wish to, divide anything you want to with Daniel. I would also like you to give somthing to Marilyn, Joanie and Danny Boy.
Dear Mom, I want you to know that, you and Pop were the most wonderful mother and father anyone ever had on this earth, I can’t tell you how much you both meant to me, also Josek and Daniel were the best brothers a person could ever have.
Mom, with love to all of you,
Your son,
Ben.
Ben Rozanski, 4-26-78

The critical part of the writing as far as this appeal is concerned is set forth in item 2 in the devise of the decedent’s real estate at 467 Beechwood Avenue, Lebanon and the bequest of the contents of the house to Shirley Carter. The appellant contends that this gift was subject to a condition precedent that she could afford to maintain the real estate and that she failed to meet this condition. A condition precedent is an occurrence that must take place before a legacy under a will vests. See Hoffman Estate, 147 Pa.Super. 124, 24 A.2d 35 (1942); Miller Estate, 380 Pa. 172, 110 A.2d 200 (1955). The court below, after hearing testimony from Ms. Carter, concluded that she could afford to make the mortgage payments on the devised premises and that the condition precedent was met. Ms. Carter worked as a bookkeeper and earned approximately $11,-000.00 per year. The mortgage payments were approximately $1,800.00 per year and the taxes were about $800.00. Moreover, the language of the testamentary writing showed an intent not to put obstacles in the way of Ms. Carter receiving the gift, but rather a desire not to make ownership of the real estate onerous for her. Apparently, the decedent felt remorse for the way he treated Ms. Carter as he stated “I know money cannot repay her for all the years of her life I have wasted.”

Appellant further contends that even if the house and contents were devised and bequeathed to Ms. Carter by virtue of the condition precedent having been met, that the real estate was subject to the condition subsequent that if she failed to use it as a home, the devise would be divested and would revert to the decedent’s estate. A condition subsequent is one which will divest an interest that has already vested. Wackstetter Estate, 420 Pa. 219, 216 A.2d 66 (1966). The reference to decedent wanting Ms. Carter “to have a home” did not mean that she necessarily had to live in the premises devised or she would lose the gift. It most reasonably bespeaks an intention that she have the wherewithal to have a home in which to live, either that residence or some other residence. We live in a mobile society and people constantly change their residences. Clearly, the deceased left his home to Ms. Carter and she was then free to live there or rent the property or make any other use concomitant with ownership in fee. A gift of an interest in real estate “to my wife for a home” constituted the devise of an estate in fee simple. “The words ‘for a home’ as used in the devise were not sufficient to restrict it to a life estate. They do not qualify in any degree the absolute gift to the wife of all the testator’s interest in the land described in item 2.” Wilkinson v. Chambers, 181 Pa. 437, 442, 37 A. 569 (1897).

In order to make the devise subject to a condition subsequent the testator would have used words of limitation and would have clearly indicated that the beneficiary could use the home only until the occurrence of a named event. Even if the language were ambiguous there is a presumption in favor of the vesting of interest. Horvath Estate, 446 Pa. 484, 288 A.2d 725 (1972). The law favors a vested rather than a defeasible interest. Brubaker Estate, 55 Lancaster L.R. 119 (1956); Cooper v. Diamond, 1 D. & C. 2nd 593 (Phila., 1954). Affirmed, Cooper v. Milikovsky, 382 Pa. 30, 112 A.2d 616 (1955). We find that the will does not indicate an intent by the testator that the devise was subject to being divested and Ms. Carter has acquired an absolute interest in the real estate.

The appellant relies on Carroll Estate, 8 D. & C. 2nd 526 (Montgomery County, 1956) to support the contention that the gift of the real estate was subject to divestment. In Carroll, supra, the testator bequeathed the sum of $3,000.00 “to be used only towards the purchase of a home for my sister.” The court held that the fund could be used for no other purpose. Our case is readily distinguishable as the testator merely expressed his desire that the beneficiary have a home. In Carroll Estate, supra, the court pointed out at 8 D. & C. 2nd 527: “[t]he word 'only’ indicates beyond doubt testator’s intention that the legacy so given is to be used toward the purchase of a home for his sister and for no other purpose whatsoever.” (Emphasis added.)

The appellant next contends that the court below erred in deciding that the expenses in connection with the real estate in question as maintenance, taxes, mortgage payments and other expenses were the responsibility of the decedent’s estate and not the devisee’s. The personal representative vigorously resisted distribution of the real estate to Ms. Carter for some three years and the estate should bear the costs of maintaining the property during this time.

Finally, the appellant contends that the court erred in determining that joint bank accounts in the name of the decedent and Shirley Carter became the property of Ms. Carter upon the decedent’s death and were not assets of his estate. The appellant argues on appeal that the court precluded testimony concerning the joint accounts and that she should have been allowed to establish that a confidential relationship existed between the decedent and Ms. Carter a violation of which might have affected ownership of the accounts. The issue of a confidential relationship was not allowed to be raised at the hearing below on April 25, 1985. Counsel for the administratrix e.t.a. (Mr. Falchek) stated:

By Mr. Falchek: Your Honor, as part of our Inventory and Schedule, we did mention the fact that we believe there to be joint accounts. Subsequently either in joint names or in terms of Totten Trust situation, we believe that we can trace the proceeds of the war bonds, the cashing in of the war bonds that would have been part of the estate assets, to these specific joint accounts or Totten Trust and we believe that they should be returned back to the estate.
By the Court: How is that issue framed for disposition in Objections to Inventory and Schedule of Distribution? I would simply suggest to you, sir, that you file another instrument to bring this before the Court. How do I adjudicate that based upon what you have agreed to be what I am doing today, which is listening to Objections to Inventory and Schedule of Distribution. You want to bring in some assets that she apparently has. I suggest to you that that is another lawsuit.
By Mr. Falchek: On the Inventory, we did, as part of one schedule, list that we believed there to be joint accounts.
By Mr. Langan: They believed but they didn’t specify what they are talking about.
By the Court: Well, I am ruling right now that that is not properly before the Court. It’s going to have to be raised in another pleading. Let’s move on. Mr. Langan?

(Emphasis Added N.T. 13-14)

The difficulty with which we are faced is that the court did determine the legal effect of the joint accounts and stated in its decree nisi of May 23, 1985:

4. All joint bank accounts in the name of decedent and SHIRLEY CARTER shall be treated as joint accounts with right of survivorship and thus ownership passing to SHIRLEY CARTER, but they shall be included within the Estate and taxable as joint property.

The court in its memorandum in support of the decree nisi held that “as she [the Administratrix] has presented no competent evidence whatsoever to overturn the general rule that when a deposit of funds creates a joint account with the right of survivorship and the signature card so stating is executed by both parties, a prima facie inter vivos gift to the other party and the creation of a joint tenancy with the right of survivorship is established. In this case, that presumption works in favor of SHIRLEY CARTER. No testimony was presented by the Administratrix to dispute this fact. The only argument is contained in the Brief of counsel for Administratrix which argues that a confidential relationship existed between SHIRLEY CARTER and the decedent. This is a mere allegation not established anywhere of record.” (Emphasis added.)

The estate was unfairly prejudiced when the court ruled that matters pertaining to the joint accounts were not properly before the court and then made a definitive ruling that the monies in the accounts belonged to Ms. Carter and not the estate. Presumably Ms. Carter received the funds that were in the joint bank accounts as the court directed her to account for the proceeds of the joint accounts. The ownership of the joint accounts is an estate matter as ostensibly the accounts, or part of them, may be estate assets. No testimony was allowed to be presented concerning the joint accounts and the court did not have a proper basis for determining ownership of the accounts since it precluded testimony pertaining to them.

That part of the decree nisi of May 23, 1985 pertaining to the joint accounts is reversed and the case is remanded to the court below for a hearing to determine the amounts in the various accounts and the ownership thereof. In all other respects the decree is affirmed.

We relinquish jurisdiction.

      . The Probate, Estates and Fiduciaries Code, 20 Pa.C.S. § 2502 sets forth the requirements of a will and provides that: "Every will shall be in writing and shall be signed by the testator at the end thereof ...” As noted in the Logan Estate, 489 Pa. 29, 33, 413 A.2d 681, 683 (1980): "If the instrument is in writing and signed by the decedent at the end thereof and is an otherwise legal declaration of his intention which he wills to be performed after his death, it must be given effect as a will." The court in the first instance must examine the document and determine as a matter of law whether it shows testamentary intent with reasonable certainty, and if so the document must be admitted to probate. Kauffman Estate, 365 Pa. 555, 76 A.2d 414 (1950).
      The court below, based solely on the writing and without resort to extrinsic evidence, found that the writing was testamentary in character. We agree with this conclusion. At the beginning of the writing the decedent refers to what he wants done at his death although he used the expression if "anything should ever happen to me." This phrase is often used to allude to the specter of death which inexorably draws closer each day, although generally unnoticed. The decedent was definite in the specific bequests to his mother and inserted a residuary clause in item 3 to dispose of any part of his estate that was not otherwise specifically devised or bequeathed.

      . In Cooper v. Diamond, supra, the testator devised a house to two of his children "for life, to be used by them as a home and is not to be rented or sold”. The court held that the life estate was not to be forfeited although the house was rented and not used as a home as the devise was not subject to a condition subsequent. As noted at 1 D. & C. 2d 595.
      It is well established that for an estate to be subject to an automatic expiration, words of "special limitation” must be used to mark the period of time for which the estate is granted, as, for example, “during”, “while", "so long as”, "until”, or words of similar import: A.L.I. Restatement of the Law of Property, §§ 23 and 112.

      . We are not unmindful of 20 Pa. § 2514 which provides:
      § 2514. Rules of interpretation
      In the absence of a contrary intent appearing therein, wills shall be construed as to real and personal estate in accordance with the following rules:
      (12) Real estate subject to a mortgage. The devisee of real estate which is subject to a mortgage shall take subject thereto, and shall not be entitled to exoneration out of the other estate of the testator, real or personal; and this whether the mortgage was created by the testator or by a previous owner or owners, and notwithstanding any general direction by the testator that his debts be paid.
      (Emphasis added.)
      However, in this case the devisee was denied possession of the property for some three years and during part of this time the property was rented. While the devisee takes the real estate subject to the mortgage she may not be charged for any mortgage payments made by the estate prior to receiving possession of the real estate, and such charges were properly borne by the estate.

      . The court also stated in the Memorandum that:
      Shirley Carter must, however, provide to the Estate an accounting of the accounts so they may be properly administered and taxed in accordance with the laws of this Commonwealth.


author: WIEAND, Judge:

text:
    514 A.2d 592
    Michael ROMANSKI v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY and Yellow Cab Company. Appeal of PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued May 8, 1986.
    Filed Aug. 27, 1986.

      Walter S. Jenkins, Philadelphia, for appellant.
    Lawrence A. Segal, Philadelphia, for Romanski, appellee. Charles W. Craven, Philadelphia, for Yellow Cab, appellee.
    Before WIEAND, OLSZEWSKI and BECK, JJ.
   WIEAND, Judge:

The principal issue in this appeal is whether Prudential Property and Casualty Insurance Company (Prudential) or Yellow Cab Company of Philadelphia (Yellow Cab) became liable to Michael Romanski for no-fault insurance benefits following an accident which occurred while Romanski was driving a taxi. The trial court entered summary judgment against Prudential for no-fault benefits and also for counsel fees. We affirm the judgment for no-fault benefits but reverse the award of counsel fees.

On March 31, 1982, Romanski was injured when the taxicab which he was operating was involved in an accident. Romanski did not own the cab but was operating it pursuant to written lease agreement with Yellow Cab. At the time of the accident, Romanski owned several personal vehicles which were insured by Prudential. Following the accident, Romanski applied to both Prudential and Yellow Cab for no-fault benefits, including reimbursement for medical expenses and lost wages. Yellow Cab denied the claim on the basis that Romanski had been an independent contractor, not an employee, and that Yellow Cab had no duty to provide him with no-fault coverage. Prudential also denied Romanski’s claim, contending that Romanski was an employee of Yellow Cab, which was liable for no-fault benefits. Prudential also alleged that the policy which it had issued to Romanski excluded coverage for the taxi which he had been driving at the time of the accident. Romanski commenced an action against both Yellow Cab and Prudential, seeking an award of both no-fault benefits and counsel fees. Answers were filed, compulsory arbitration was held, and an award was made in favor of Romanski and against Prudential. Prudential filed an appeal in the Court of Common Pleas. Thereafter, Romanski filed a motion for summary judgment, which, on August 8, 1984, was granted “as to the liability of Prudential to provide no-fault benefits only.” Other issues were to proceed to trial. Prudential filed an appeal in this Court, but the appeal was quashed as interlocutory because the amount of Romanski’s wage loss had not been determined, the issue of Romanski’s entitlement to costs and attorneys fees had not been decided, and a final judgment had not been entered. Upon remand, the amounts of the several claims were stipulated, and the trial court entered judgment in favor of Romanski and against Prudential “in the amount of $6,181.71 for medical expenses, $3,250.00 for work loss, $4,173.53 for interest; and $3,571.25 for attorneys’ fees and costs for a total of $17,176.49.” Prudential filed the present appeal.

“It is well established that we can sustain a summary judgment only ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ Pa.R.C.P. 1035(b)____”

Bollinger v. Palmerton Area Communities Endeavor, Inc., 241 Pa.Super. 341, 350, 361 A.2d 676, 680 (1976), quoting Toth v. City of Philadelphia, 213 Pa.Super. 282, 285, 247 A.2d 629, 631 (1968). In the instant case, the parties are not in disagreement about the material facts. The dispute, rather, is a legal one.

The first issue to be decided is whether Romanski was an employee of Yellow Cab or an independent contractor. This is a question of law. Cohen v. Government Employees Insurance Company, 289 Pa.Super. 319, 322, 433 A.2d 86, 87 (1981). In making this determination,

[i]t is well settled that the designation given a claimant by an alleged employer is not conclusive as to whether he is an employee or an independent contractor. Feller v. New Amsterdam Casualty Company, 363 Pa. 483, 70 A.2d 299 [ (1950) ]. Likewise, the method of payment for his services is not determinative. Gadd v. Barone, 167 Pa.Superior Ct. 477, 75 A.2d 620 [ (1950) ]; In re Blum Unemployment Compensation Case, 163 Pa.Superior Ct. 271, 60 A.2d 568 [(1948)]. Nor is the fact that no provision was made for the deduction of social security or income tax determinative of the status. Stevens v. Publishers Agency, et al., 170 Pa.Superior Ct. 385, 85 A.2d 696 [(1952)]; Shields v. William Freihofer Baking Company, 147 Pa.Superior Ct. 455, 24 A.2d 54 [ (1942) ].
We have said that the vital test in determining whether a workman is a servant of the person who engaged him for work is whether he is subject to the latter’s control or right of control not only with regard to the work to be done but also with regard to the manner of performing it. Hanst v. Swartzfager, 170 Pa.Superior Ct. 219, 85 A.2d 639 [ (1952) ]. And it is not the fact of actual interference or exercise of control by the employer, but the existence of the right or authority to interfere or control, which renders one an employee rather than an independent contractor.

Eggelton v. Leete, 186 Pa.Super. 542, 545-547, 142 A.2d 777, 779-780 (1958). See: Feller v. New Amsterdam Casualty Co., 363 Pa. 483, 486-487, 70 A.2d 299, 300-301 (1950); Cohen v. Government Employees Insurance Company, supra, 289 Pa.Super. at 322-323, 433 A.2d at 87-88; Juarbe v. City of Philadelphia, 288 Pa.Super. 330, 335, 431 A.2d 1073, 1076 (1981); Turley v. Kotter, 263 Pa.Super. 523, 529-530, 398 A.2d 699, 702-703 (1979).

In the instant case, the lease agreement between Roman-ski and Yellow Cab provided that in exchange for a fixed fee, Yellow Cab would provide Romanski with a taxicab for his use for scheduled periods of time each day. The agreement further provided that the taxicab would be made available at Yellow Cab’s garage with a full tank of gas and was to be returned to that location at the end of the scheduled period with the gas tank full. Yellow Cab agreed to perform all maintenance and repairs on the vehicle. In the event that the taxicab broke down while in Romanski’s possession, it was to be towed to Yellow Cab’s garage for repairs and, if possible, a replacement vehicle was to be provided. Romanski agreed to remain a validly licensed public chauffeur; to operate the taxicab only for certified purposes within the territory in which Yellow Cab was authorized to operate by the Pennsylvania Public Utilities Commission (PUC); to use the cab only for fare-paying passengers and not for personal reasons; to provide taxicab services for all appropriate passengers; to charge passengers at the rates established by the PUC; to operate the taxicab under only the Yellow Cab trademark and in full compliance with the law; to report any accident to Yellow Cab and to the police; to maintain daily log sheets as required by the PUC; and to refrain from allowing anyone else to operate the taxicab. Romanski, like all other lessees of Yellow Cab, had been given the option of accepting dispatch service from Yellow Cab. Romanski had decided to accept this service and, as a condition thereof, had agreed to accept all orders to pick up customers coming from Yellow Cab’s dispatcher. He had also agreed to report the location of the taxicab to the dispatcher upon request. Finally, the agreement provided that Romanski was an independent contractor and not an employee of Yellow Cab. He received no salary, insurance or other benefits from Yellow Cab. He controlled his own hours, routes, manner of operation and kept all fares and tips. Romanski was also responsible for paying his own taxes, as well as his own gas and union dues. Yellow Cab reserved the right to terminate any shift if the taxicab were parked illegally or abandoned, and could terminate the lease at any time.

The terms of this agreement support the trial court’s determination that Romanski was an independent contractor and not an employee. Although Yellow Cab required Romanski to adhere to certain regulations with respect to the vehicle, it neither controlled nor retained the right to control the manner in which Romanski worked. In view of the fact that Romanski controlled his own hours, routes and manner of operation, kept all of his fares and tips, and paid his own taxes, we conclude that the trial court correctly determined that he was an independent contractor. He was not an employee subject to control by Yellow Cab. See: Cohen v. Government Employees Insurance Company, supra.

Prudential argues next that even if Romanski were an independent contractor, Prudential was not obligated to pay no-fault benefits because of exclusions contained in the policy issued to Romanski. The first exclusion upon which Prudential relies stated that coverage did “not apply to bodily injury to ... the named insured [Romanski] or any relative while occupying his employer’s motor vehicle____” Prudential contends that if Romanski were an independent contractor, he was his own employer and was driving his employer’s vehicle at the time of the accident. We disagree with this argument. Even if Romanski could be deemed his own employer, it cannot be said that he was driving his employer’s vehicle. Romanski did not own the taxicab. Thus, this exclusion had no application to the instant facts.

The second exclusion upon which Prudential relies provided that the policy did not cover “bodily injury to ... the named insured or any relative resulting from the maintenance or use of the named insured’s motor vehicle which is not an insured motor vehicle.” Again, the vehicle in which Romanski was injured was not owned by him. This exlusion, therefore, is inapplicable. Even if, as Prudential contends, it did not intend to insure against risks inherent in the operation of a vehicle used as a taxicab, the exclusion cannot be expanded beyond the exclusionary language of the policy.

It is a cardinal principle of insurance law that a policy or contract of insurance is to be construed liberally in favor of the insured and strictly against the insurer. 44 C.J.S. Insurance § 297(c)(1). “[A]ny ambiguity in the language of insurance contracts must be resolved in favor of the insured and against the insurer.” Knauber v. Continental Insurance Companies, 291 Pa.Super. 57, 59, 435 A.2d 217, 218 (1981).

Maravich v. Aetna Life & Casualty Co., 350 Pa.Super. 392, 409, 504 A.2d 896, 905 (1986). See: Allstate Insurance Co. v. Heffner, 491 Pa. 447, 455, 421 A.2d 629, 633 (1980). Inasmuch as the policy issued to Romanski by Prudential did not specifically exclude injuries sustained by Romanski while he was operating a taxicab, we will affirm the order of the trial court entering judgment in favor of Romanski and against Prudential for medical expenses, work loss and interest.

It cannot be said, however, that Prudential’s denial of Romanski’s claim was without reasonable foundation; there was, in this case, a genuine issue as to Prudential’s liability for no-fault benefits. We are unable to discern that Prudential’s denial of liability was made in bad faith. See: Hayes v. Erie Insurance Exchange, 493 Pa. 150, 425 A.2d 419 (1981). Therefore, the award of counsel fees must be reversed.

The judgment is modified by reducing the amount thereof to $13,605.24. As so modified, the judgment is affirmed.

      . See The Pennsylvania No-fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq., repealed by Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984.

      . Many of the requirements placed in the lease agreement, such as maintaining daily log sheets, reporting all accidents, charging specified fares, operating within Yellow Cab’s territorial limits and maintaining a valid chauffeur’s license, were mandated by the PUC.


author: CERCONE, Judge: BECK, Judge,

text:
    514 A.2d 596
    In re Private Criminal Complaints Filed by Donald CLEGG.
    Superior Court of Pennsylvania.
    Submitted May 12, 1986.
    Filed Aug. 28, 1986.

      Donald L. Clegg, in propria persona.
    Before BECK, CERCONE and ROBERTS, JJ.
   CERCONE, Judge:

Appellant, Donald Clegg, appeals from the trial court’s order sustaining the disapproval by the district attorney of his private criminal complaints.

Appellant filed private criminal complaints against two district justices, two state troopers and the prosecuting witness for their alleged dereliction of duty pertaining to appellant’s arraignment on an assault charge and his detainer by the State Board of Probation and Parole. Appellant, a parolee, was arrested and incarcerated on an assault charge on January 15, 1985 but his preliminary hearing in the matter was not held until May 22, 1985. Prior to the hearing, on May 7, 1985, appellant filed a pro se Writ of Habeas Corpus challenging the legality of his confinement. At the preliminary hearing appellant argued that holding the hearing was violative of 42 Pa.C.S.A. § 6505 and the hearing should be postponed until disposition of his Writ of Habeas Corpus. Appellant’s argument was overruled. Subsequently, when, by court order dated May 24, 1985, appellant’s Writ of Habeas Corpus was denied, appellant filed private criminal complaints against the troopers who filed the assault charge, the district justices involved in the proceedings and the prosecuting witness, alleging that the parties made a concerted effort to render his Writ of Habeas Corpus moot. The district attorney of Perry County returned appellant’s complaint as “lacking prosecutorial merit.” Appellant took an appeal to the Court of Common Pleas of Perry County which was denied for “no abuse of discretion on the part of the district attorney.” This appeal followed.

The sole issue on appeal is whether the court below properly exercised its discretion when it decided that the prosecutor had not acted improperly in disapproving appellant’s private criminal complaint.

We are presented with a case that has been submitted to the Superior Court for decision without the benefit of oral argument, nor an appellee brief or an opinion from the court below that addresses the merits of appellant’s claim. Appellant’s case arose before this court’s decision in Commonwealth v. Muroski, 352 Pa.Superior Ct. 15, 506 A.2d 1312 (1986) (en banc) wherein the rule established in In re: Wood, 333 Pa.Superior Ct. 597, 482 A.2d 1033 (1984) that a private person who commences a matter by filing a private criminal complaint pursuant to Pa.R.Crim.P. 133 has a right of appeal from the order of a trial judge disapproving his complaint was repronounced by the court. In its opinion the court below stated the law of this Commonwealth prior to Muroski, that “the Commonwealth is clearly the party plaintiff in a criminal prosecution and the victim acts only as a prosecuting witness.” Thus, the court concluded that appellant had no standing.

We think that the appellant has a right to a full discussion of the issue on appeal. This can only be accomplished with the benefit of the thorough analysis of the court below. Accordingly, we remand this case to the trial court for findings of fact as to whether the district attorney acted properly in disapproving appellant’s private criminal complaint. See Commonwealth v. Mueller, 341 Pa.Superior Ct. 273, 491 A.2d 258 (1985); Pilon v. Pilon, 342 Pa.Superior Ct. 52, 492 A.2d 59 (1985); Commonwealth v. Hicks, 328 Pa.Superior Ct. 233, 476 A.2d 978 (1984).

Order of the lower court is vacated and case is remanded. Jurisdiction is relinquished.

BECK, J., files a dissenting opinion.

BECK, Judge,

dissenting:

I respectfully dissent from the majority’s conclusion that the lower court’s opinion is inadequate and that the case must be remanded for findings of fact.

The majority correctly states that the only issue before us is “whether the court below properly exercised its discretion when it decided that the prosecutor had not acted improperly in disapproving appellant’s private criminal complaint.” The majority declines to decide this issue. I would decide the issue and affirm.

Appellant’s argument on appeal is vacuous, barely coherent, and utterly frivolous. His pro se brief purports to raise four issues, which collectively amount to two contentions. First, appellant Clegg alleges that the district justice violated 42 Pa.C.S.A. § 6505, Interference with Writ Prohibited, by holding a preliminary hearing in Clegg’s assault case before the court of common pleas held a hearing on Clegg’s application for a writ of habeas corpus. This claim is frivolous. Section 5605 concerns interference with a writ that has been issued. Since, at the time of the preliminary hearing, Clegg’s application for a writ had not been acted on (and was ultimately denied), no writ had been issued and no violation of Section 6505 could have occurred.

Second, appellant alleges that someone changed his address on his assault arrest summons from his new address to his old address in order to make it appear that Clegg violated his parole by failing to notify his parole agent of his change of address. This claim, too, is vacuous. Although the Board of Probation and Parole did recommit Clegg to prison as “not amenable to parole supervision” on August 6, 1985, according to a document attached to Brief of Appellant as Exhibit 10, that document makes no reference to change of address. Instead, the document indicates that the recommitment is based on violations of parole conditions relating to the consumption of intoxicating beverages and aggressive behavior.

The common pleas court filed a 2-page Memorandum Opinion dated August 2, 1985, that noted that the court had received appellant’s statements of the basis for his appeal; reviewed the procedure for prosecution of a private complaint; discussed the district attorney’s discretion to disapprove such complaints; and concluded: “In the instant case ... prosecution is at the District Attorney’s discretion. There has been no abuse of discretion in this matter and this Court upholds the District Attorney’s decision to disapprove this complaint.”

In light of this Memorandum by the lower court, I am unable to agree with the majority’s statement that “[w]e are presented with a case that has been submitted to the Superior Court for decision without the benefit of ... an opinion from the court below that addresses the merits of appellant’s claim.” Although perhaps a fuller discussion of the merits of Clegg’s private complaints would have been desirable, I do not agree that such discussion is necessary for this court to resolve the instant appeal. Appellant has made his argument in his briefs. The argument is frivolous on its face, as the district attorney and the court below no doubt concluded. I would find that, in such a clear case, a statement by the lower court that it has reviewed the complainant’s arguments and found no abuse of discretion by the district attorney is an adequate resolution of the merits.

I also disagree with the majority’s conclusion that the lower court resolved the case on a finding that appellant lacked standing. The majority focuses on the fact that the lower court stated that the Commonwealth is the party plaintiff in a criminal prosecution and the victim acts only as a prosecuting witness. The majority implies that the lower court must have concluded that Clegg lacked standing since his case arose prior to this court’s decision in Commonwealth v. Muroski, 352 Pa.Super. 15, 506 A.2d 1312 (1986) (en banc), which “repronounced” the rule that a private person who filed a private criminal complaint has a right of appeal from a court order disapproving the complaint. Id., 352 Pa.Superior Ct. at 19, 506 A.2d at 1314. I find this conclusion puzzling. First, the lower court made its statement (regarding a victim’s nonparty status) in the context of discussing the prosecutor’s discretion to disapprove the complaint. Second, the trial court did not cite Muroski. Third, it is of no moment that Clegg’s case arose before the Muroski decision since, as the majority itself points out, Muroski only repronounced a rule that was already in effect, having been established in In re Wood, 333 Pa.Super. 597, 482 A.2d 1033 (1984), well before Clegg’s case arose. Fourth, the lower court made no reference to standing at all.

I would conclude that the lower court decided the case on its merits and that its opinion adequately addresses those merits and properly finds no abuse of discretion by the district attorney in disapproving appellant’s private criminal complaint. Accordingly, I would affirm.

      . The facts of this case are adopted from appellant’s brief and the record as the Commonwealth failed to timely file a brief, a practice we do not condone.

      . § 6505. Interference with writ prohibited
      Any person who shall fail or refuse to respond to a writ or to an order issued under this chapter, or who shall change the place of detention of an person for the purpose of defeating the writ, or shall, without express authorization from a judge of a court of record, recommit on substantially the same facts and circumstances any person set at large upon a habeas corpus, or shall do any act for the purpose of defeating the writ or the* order, commits a misdemeanor of the second degree.

      . In the midst of Clegg’s quixotic and chaotic brief, he also loosely bandies about such phrases as "equal protection,” "selective prosecution,” "obstruction of justice,” and “conflict of interests.” Brief of Appellant at 11-17. Appellant’s arguments are nonsensical, and seem to be based on the absurd notion that because he was arrested for a crime, he has a right to have someone else arrested for any crime he alleges.

      . The three cases cited by the majority as authority for a remand can all be distinguished. Not one remanded because the lower court issued an opinion that addressed the merits but did not discuss the merits fully. Pilon v. Pilon, 342 Pa.Super. 52, 492 A.2d 59 (1985), was not a criminal case, and remanded because the trial court opinion used an improper standard of proof. In Commonwealth v. Mueller, 341 Pa.Super. 273, 491 A.2d 258 (1985), the trial court had not received a statement of matters complained of on appeal and therefore filed a one-page opinion stating that it was unable to discuss appellant’s claims. Likewise, in Commonwealth v. Hicks, 328 Pa.Super. 233, 476 A.2d 978 (1984), the trial court received no timely filed statement of matters complained of and therefore issued no opinion at all.

      . It is trae that the dictum that a victim-complainant is not a party to a criminal prosecution was once cited to support a denial of an appeal to a victim whose private criminal complaint was dismissed for lack of a prima facie case. See Commonwealth v. Malloy, 304 Pa.Super. 297, 306, 450 A.2d 689, 693-94 (1982). Although Malloy was distinguished and a rale was established in In re Wood allowing appeal by a victim whose private criminal complaint is disapproved, it is still true that the Commonwealth is the party plaintiff and the victim acts as a prosecuting witness. That the lower court cited, in passing, the latter proposition does not mean that it must have been citing that proposition to support a finding of no standing.


author: BROSKY, Judge:

text:
    514 A.2d 599
    In the Interest of M.B., a Minor. Appeal of M.D.B., Natural Father.
    Superior Court of Pennsylvania.
    Argued May 22, 1986.
    Filed Aug. 25, 1986.

      Wesley T. Long, Greensburg, for appellant.
    Before BROSKY, KELLY and ROBERTS, JJ.
   BROSKY, Judge:

This appeal is from an order declaring appellant’s child to be a dependent child and permitting the child to remain in the custody of his parents subject to certain conditions and limitations. Appellant argues that the trial court erred in adjudicating his son a dependent child under the Juvenile Act when a petition under that Act was never filed. We agree and, accordingly, reverse.

Facts and Procedural History

Appellant’s four and one-half year old son was examined by a Dr. Stillman as a result of a two-inch diameter bruise on the child’s right buttock. A caseworker for the Westmoreland Children’s Bureau investigated the injury as a suspected case of child abuse. It was reported that appellant had struck the child when he failed to heed his father’s request that he be silent while the father watched the evening news. A petition was filed under the Child Protective Services Law, 11 P.S. § 2201, et. seq. The petition alleged child abuse. The trial court found the allegation of abuse unfounded, but determined that appellant’s son was a dependent child under the terms of the Juvenile Act. The instant appeal followed.

Analysis

Appellant argues that the trial court erred in holding that appellant’s son was dependent under the Juvenile Act, 42 Pa.C.S. § 6301, et seq., when the petition before the court was for abuse under the Child Protective Services Law. We agree.

Courts cannot rule on matters not before them. It is, of course, the pleadings which limit the court’s agenda. “The pleadings determine the issues in any given case.” Anflick v. Grukler, 353 Pa. 470, 472, 46 A.2d 161, 162 (1946). “[A] plaintiff cannot file a complaint which avers one cause of action, and be permitted, on the trial, to prove a different cause of action.” Smith v. County of Allegheny, 397 Pa. 404, 406, 155 A.2d 615, 616 (1959).

The rationale for this rule goes well beyond Nineteenth Century hypertechnical pleading requirements.

The general rule requiring conformity between the allegata and probata is intended to avoid the injustice that would result by confronting a defendant at trial with proof of a cause of action of which he was not put on notice and which he is not prepared to defend.

Computer Print Systems, Inc. v. Lewis, 281 Pa.Super. 240, 248, 422 A.2d 148, 152 (1980).

Due process requires that the litigants receive notice of the issues before the court and an opportunity to present their case in relation to those issues. It is even more eggregious an error when the lack of notice, through variance from the pleadings, is the court’s doing. For when the issue is first stated only in the court’s resolution of it, the unsuspecting party has no opportunity during the proceedings to voice his objections or match his case to the altered issue.

In its response to this issue, the trial court said that a separate hearing on the issue of dependency “would have released no more than was revealed in the hearing that took place in this matter.” Such a conclusion is mere speculation. The issues before the Court in an abuse and dependency proceeding are distinct. The proof and argument on one would not necessarily match the proof and argument for the other. In an abuse case, the evidence revolves around the alleged incident of abuse, and the decision which must be reached is whether that evidence meets the standard defined in the Child Protective Services Law.

On the other hand, a dependency proceeding focuses on whether the child at the time of the proceeding is without proper parental care or control. Such differences manifest the unfairness inherent in allowing a child to be declared dependent after a proceeding under the Child Protective Services Law when no petition was ever filed under the Juvenile Act.

Moreover, provisions of the Juvenile Act itself indicate that a child cannot be found dependent under that Act unless its procedures are complied with. 42 Pa.C.S. § 6301 provides in relevant part:

(b) Purposes. — This chapter shall be interpreted and construed as to effectuate the following purposes.
(4) To provide means through which the provisions of this chapter are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights recognized and enforced.

One of the means by which the Juvenile Act assures the parties a fair hearing is that it limits its application exclusively to “[proceedings in which a child is alleged to be delinquent or dependent,” 42 Pa.C.S. § 6303 (a)(1). The manner in which a child may be alleged to be dependent is set forth in § 6321 which provides in relevant part the following:

§ 6321. Commencement of proceedings.
(a) General rule. — A proceeding under this chapter may be commenced.
(3) In other cases by the filing of a petition as provided in this chapter.[] The petition and all other documents in the proceeding shall be entitled “In the interest of ..........., a minor,” and shall be captioned and docketed as provided by general rule.[]

We note Section 6321 is also the first section of Subchapter B of the Juvenile Act which is entitled “JURISDICTION AND CUSTODY.” We think it clear from this fact and from our reading of § 6321 that if a proceeding is not commenced by any of the means provided by § 6321, then a court has no jurisdiction to find a child to be dependent.

Thus, aside from the other means provided by § 6321, in order for a court to have jurisdiction to find a child to be dependent, there must be a petition filed under the Juvenile Act which alleges the dependency of the child. Since no such petition was filed in this case, the court below had no jurisdiction to find appellant’s child to be a dependent child.

On either the basis of due process or the basis of jurisdiction, we must conclude that the order of the court below cannot stand. We will, therefore, vacate it.

Order vacated.

      . Appellant also contends that the Children’s Bureau did not meet its burden of proof vis-a-vis dependency. In view of our reversal on the other issue raised, it is unnecessary for us to treat this second issue.

      . Section 6303 also states that the Juvenile Act applies in three other instances which are not relevant to this appeal.

      . Under § 6334, such a petition must state, inter alia, "[t]he facts which bring the child within the jurisdiction of the court and this chapter, with a statement that it is within the best interest of the child and the public that the proceeding be brought ...”

      . Section 6321 also permits proceedings to be commenced in the following three ways:
      (1) By transfer of a case as provided in section 6322 (relating to transfer from criminal proceedings).
      (2) By the court accepting jurisdiction as provided in section 6362 (relating to disposition of resident child received from another state) or accepting supervision of a child as provided in section 6364 (relating to supervision under foreign order).
      (2.1) By taking a child into custody in accordance with the provisions of section 6324 (relating to taking into custody).
      These methods are not relevant to the instant appeal.


author: ROWLEY, Judge:

text:
    514 A.2d 602
    COMMONWEALTH of Pennsylvania v. Joseph P. MORTIMER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 21, 1986.
    Filed Aug. 25, 1986.

      Raymond H. Bogaty, Public Defender, Grove City, for appellant.
    Charles S. Hersh, Assistant District Attorney, Hermitage, for Com., appellee.
    Before ROWLEY, McEWEN and TAMILIA, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

On December 27, 1984, appellant Joseph Mortimer was charged with taking an “Atari Pitfall” video tape, worth $10.97, from a Hills Department Store. He appeared before the Court of Common Pleas, Mercer County, on June 12, 1985 and pled guilty to retail theft. This was appellant’s second conviction for retail theft. His first conviction occurred in 1980 when he pled guilty before a district magistrate, without the benefit of counsel, and was fined $100 and assessed $26 costs. At sentencing on June 12, 1985, the trial court considered the prior conviction and enhanced the grading of the current offense from a summary violation to a second degree misdemeanor, pursuant to 18 Pa. C.S. § 3929(b)(l)(ii), The court then sentenced appellant to a minimum of 60 days and a maximum of 8 months in the Mercer County Jail. Following the imposition of sentence for the second retail theft conviction, appellant filed a Motion to Modify the Sentence alleging that the trial court erred in using his prior uncounseled conviction to enhance the present charge. The motion was denied and this appeal followed.

On appeal, appellant raises one issue, alleging that the trial court erred in ruling that a prior uncounseled guilty plea may be used to enhance the grading of a subsequent retail theft conviction from a summary offense to a misdemeanor. According to appellant, the enhanced grading of retail theft under these circumstances violates article I, section 9 of the Pennsylvania Constitution and the Sixth Amendment to the United States Constitution by denying criminal defendants the right to counsel. The crux of appellant’s argument is that all defendants charged with summary criminal offenses are constitutionally entitled to the assistance of counsel. In the alternative, appellant argues that criminal defendants have the right to counsel in summary proceedings if the summary conviction is to be used to enhance the grading of a subsequent offense.

In holding that appellant’s arguments lacked merit, the trial court discussed Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), a United States Supreme Court plurality opinion relied on by appellant. The court noted that Baldasar lacks a majority opinion and fails to set forth a clear holding. Baldasar is further complicated by a division among the federal courts as to which rule of interpretation should be applied to the case. After analyzing the case according to each interpretation, the court concluded that under either approach, appellant is not entitled to relief.

In arguing to our Court that the enhancement provision is unconstitutional, appellant cites the case of Commonwealth v. Thomas, 510 Pa. 106, 507 A.2d 57 (1986) which was pending before the Pennsylvania Supreme Court when this appeal was taken. He concedes that “a decision by the Supreme Court in [this case] would be dispositive of this appeal.” Brief for Appellant at 7. Thomas, which like the instant case originated in Mercer County, has since been decided by the Pennsylvania Supreme Court and does indeed address the same issue raised by appellant. The appellant in Thomas, James Arden Thomas, entered an uncounseled guilty plea for the summary offense of retail theft when he was seventeen years old. Four years later, Thomas again pled guilty to retail theft for the theft of spark plugs valued at $12.71. Because this was Thomas’s second conviction, the offense was enhanced to a second degree misdemeanor. He received a seven-day jail term for this conviction.

The second appellant in Thomas, Emily Clay Bruce, proceeded under similar facts. She entered an uncounseled guilty plea for the summary offense of retail theft when she was sixteen. Approximately 2V2 years later, she was charged with committing a second degree misdemeanor for the theft of a necklace valued at $2.84. She was sentenced to one year probation.

On appeal, appellants Thomas and Bruce raised the issue of whether their prior convictions for retail theft, which were based upon uncounseled guilty pleas, were constitutionally insufficient to upgrade their second retail theft convictions to misdemeanors. The appellants also questioned whether their subsequent convictions could be enhanced as a result of the prior convictions for retail theft received when they were juveniles.

To answer the first issue, the Court initially looked to the United States Supreme Court’s decision in Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979). The Supreme Court in Scott held that the Sixth and Fourteenth Amendments do not require a state trial court to appoint counsel for an indigent criminal defendant charged with an offense for which imprisonment, although authorized by statute, is not imposed. The court then examined relevant sections of the Pennsylvania Rules of Criminal Procedure. Rule 316 provides that,

(a) Counsel shall be assigned in all summary cases to all defendants who are without financial resources or who are otherwise unable to employ counsel when there is a likelihood that imprisonment will be imposed.
(c)(i) The court, of its own motion, shall assign counsel to represent a defendant whenever the interests of justice require it.

Pa.R.Crim.P. 316. Taking Scott and Pa.R.Crim.P. 316 together, the Court determined that “there is no requirement, either under the United States Constitution or under the Pennsylvania Constitution, that defendants in all summary cases be provided with counsel.” Commonwealth v. Thomas, 510 Pa. at 111, 507 A.2d at 59 (1986). Thus, the Court concluded that because neither Thomas nor Bruce incurred prison sentences for their first retail theft offenses, their constitutional right to counsel did not attach.

The Court then turned to the question of whether appellants’ uncounseled convictions could enhance the degree of their second convictions from summary offenses to second degree misdemeanors. To answer this question, the court analyzed the United States Supreme Court’s plurality opinion in Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980). After reviewing the three concurring opinions and one dissenting opinion that accompany the per curiam opinion in Baldosar; the Court concluded that,

Four Justices would uphold the use of appellants’ convictions for their summary offenses to enhance the grading and sentencing for their second offenses, because appellants did not actually receive sentences of imprisonment for their summary offenses. A fifth Justice would uphold the use of appellants’ first convictions to enhance the grading and sentencing for their second offenses, because appellants’ summary offenses were not punishable by more than six months imprisonment. Thus, a majority of the Supreme Court, had it been asked to consider the facts of this case, would have held that appellant Bruce’s and appellant Thomas’s uncounseled summary offense convictions obtained under the Pennsylvania statute for retail theft could be used under an enhanced penalty statute to convert their subsequent offenses into misdemeanors which carry longer potential prison terms and larger fines (footnote omitted).

Commonwealth v. Thomas, 510 Pa. at 113, 507 A.2d at 61 (1986).

The facts of the case at bar support the same conclusion. Like appellants Thomas and Bruce, appellant Mortimer did not receive a prison sentence for his summary offense conviction. Rather, he was fined $100 and assessed $26 costs. Additionally, Mortimer’s summary offense of retail theft was not punishable by more than six months imprisonment. Thus, Mortimer’s conviction contains the elements required by the four Justices who would use the prison sentence itself as their criterion as well as those required by the Justice who would use the length of the maximum allowable imprisonment as his criterion.

Thomas differs only from the instant case in that appellants Thomas and Bruce were both juveniles when they were first convicted of retail theft. Appellant Mortimer was an adult at the time of his first retail theft conviction. A close examination of Thomas, however, reveals that this factual dissimilarity is irrelevant. The Juvenile Act governs the disposition of juveniles charged with “delinquent acts,” which the Act defines as any “act designated a crime under the law of this Commonwealth.” 42 Pa.C.S. § 6302. The Juvenile Act specifically excludes summary offenses from the term “delinquent acts.” See In Interest of Leonardo, 291 Pa.Super. 644, 436 A.2d 685 (1981). Although the appellants in Thomas were juveniles the first time they were convicted of retail theft, they were not eligible for consideration under the Juvenile Act because their theft involved merchandise valued below $150, which as a first offense is graded as a summary violation. Appellants Thomas and Bruce, therefore, were prosecuted as though they were adults. They, like appellant Mortimer, sustained adult criminal convictions for their first act of retail theft.

With this factual distinction resolved, we may consider the Pennsylvania Supreme Court’s holding in Thomas to be dispositive of the issue raised by appellant Mortimer. The Supreme Court stated in Thomas,

We hold, therefore, that since appellants’ first convictions were validly entered pursuant to the Sixth and Fourteenth Amendments to the United States Constitution, Article I, Section 9 of the Pennsylvania Constitution, the Pennsylvania retail theft statute, and the Pennsylvania Rules of Criminal Procedure, the validity of those convictions was not impugned when appellants were charged with misdemeanors, rather than summary offenses, for their second offenses of retail theft, and were sentenced upon conviction of those misdemeanors. Appellants’ subsequent criminal conduct did not create a right to counsel, where none otherwise existed, for their summary offenses of retail theft.

510 Pa. at 114, 507 A.2d at 61 (1986). Following the ruling of our Supreme Court, we hold that appellant’s uncounseled summary offense conviction was properly used to enhance his subsequent offense to a misdemeanor.

Judgment of sentence affirmed.

      . § 3929. Retail Theft
      (b) Grading.—
      (1) Retail theft constitutes a:'
      (ii) Misdemeanor of the second degree when the offense is a second offense and the value of the merchandise is less than $150.

      . One school of thought maintains that when an opinion is issued by a divided court — that is, a five justice plurality unable to agree on one rationale — the holding of the court may be considered to be the "position taken by those members who concur in the judgment on the narrowest grounds.” United States v. Martino, 664 F.2d 860, 872 (2d Cir.1981), cert. denied, 458 U.S. 1110, 102 S.Ct. 3493, 73 L.Ed.2d 1373 (1982).
      The second position, announced in United States v. Robles-Sandoval, 637 F.2d 692 n. 1 (9th Cir.1981), maintains that the opinions in Baldosar conflict to the extent that no rule can be said to have resulted.

      . Justice Stewart, joined by Justices Brennan and Stevens, authored one concurrence. Justice Marshall, joined by Justices Brennan and Stevens, also concurred. In Thomas, the Pennsylvania Supreme Court determined that these opinions, when taken together, would establish that a first uncounseled conviction may never be the basis for upgrading a second offense. The four dissenting Justices (Justice Powell, joined by Chief Justice Burger, and Justices White and Rehnquist) would have held that an uncounseled conviction punished by means other than imprisonment may be used to enhance the grading and sentencing of a second conviction. Justice Blackmun adhered to his dissent in Scott and would have held that the right to counsel attaches whenever a criminal defendant is prosecuted for an offense punishable by more than six months imprisonment.

      . 18 Pa.C.S. § 106(c)(2) provides that persons convicted of summary offenses may be sentenced to a maximum of 90 days in prison.


author: MONTEMURO, Judge:

text:
    514 A.2d 606
    ALLEGHENY CLARKLIFT, INC., Appellee, v. WOODLINE INDUSTRIES OF PENNSYLVANIA, INC., and Charles L. Fuellgraf, Jr., t/d/b/a Nonco. Appeal of Charles L. FUELLGRAF, Jr., t/d/b/a Nonco.
    Superior Court of Pennsylvania.
    Argued April 30, 1986.
    Filed Aug. 29, 1986.

      Lee C. McCandless, Butler, for appellant.
    Thomas W. King, III, Butler, for appellee.
    Before DEL SOLE, MONTEMURO and POPOVICH, JJ.
   MONTEMURO, Judge:

This is an appeal from an Order granting appellee’s motion for summary judgment.

Woodline, the catalyst in this action, was the lessee of certain premises owned by appellant, Fuellgraf/Nonco, and of certain machinery, to wit a forklift, owned by appellee. The equipment was used and maintained on appellant’s property, and was seized by appellant under the provisions of the Landlord and Tenant Act, 68 Pa. C.S.A. § 250.302, et seq. (hereinafter the Act), after Woodline defaulted on the ground rent. Seeking return of the forklift, appellee commenced a replevin action to which appellant counterclaimed. Appellee then successfully moved for summary judgment on the basis that the statute under which appellant had distrained on the forklift was unconstitutional, having been adjudicated violative of the Fourteenth Amendment.

On appeal this court vacated the judgment and remanded so that the Attorney General might be apprised of the constitutional claim as required by Pa.R.C.P. 235(a). The Commonwealth declined to intervene in defense of the statute and the lower court renewed its previous Order grounding its judgment on the conclusion that under the Uniform Commercial Code Woodline had no secured interest in the equipment which could be subject to the landlord’s distraint for rent. This appeal followed.

Appellant’s claim is that Woodline did in fact possess a sufficient interest under the terms of the Act to validate distraint. Specifically it is argued that because appellee did not give notice under § 250.403 to the effect that ownership of the machine was vested in Allegheny Clarklift rather than in Woodline, the property automatically became available as compensation for Woodline’s rent arrearages.

Appellant further contends that the constitutionality of the statute is not before this court, and that even if it were, appellee was afforded adequate notice so as to satisfy due process notwithstanding any deficiencies of the Act in this regard.

We find at the outset that the constitutional question is properly before us. It was raised below, and does not, as appellant suggests, simply vanish because the trial court circumvented it. So long as we reach the same (correct) destination as did the court below, we need not arrive there by an identical mode of travel. Johnson v. Earl Scheib, Inc., 352 Pa.Super. 278, 507 A.2d 1228 (1986).

Examination of the constitutional salubrity of the Act, which has occurred solely within the confines of the federal courts, began with Santiago v. McElroy, 319 F.Supp. 284 (E.D.Pa.1970). In that case, the federal district court invalidated the sale provisions of the statute, § 250.309, on grounds that it failed to provide notice and hearing to the tenant prior to disposal of distrained property. Musselman v. Spies, 343 F.Supp. 528 (M.D.Pa.1972); see also Sellers v. Contino, 327 F.Supp. 230 (E.D.Pa.1971). The Act’s other provisions, however, were specifically upheld as posing no threat to 14th Amendment rights.

In the second of two Opinions in Gross v. Fox, 349 F.Supp. 1164 (E.D.Pa.1972), vacated, 496 F.2d 1153 (3d Cir.1974), the distraint provisions as a whole were declared facially invalid because under them a landlord was permitted “to levy on the property on a tenant’s premises without prior notice or hearing in violation of the Fourteenth Amendment’s due process clause.” Id. at 1168.

Gross thus provided a foundation upon which further extrapolation on the infirmity of the statue could be superstructed. See, e.g., Litton Business Systems, Inc. v. Paul L’Esperance, Inc., 387 F.Supp. 1265 (E.D.Pa.1975); Stots v. Media Real Estate Co., 355 F.Supp. 240 (E.D.Pa.1973). However, the validity of this line of cases was compromised by the Third Circuit’s vacation of Gross on appeal, and its refusal to address the constitutional issue because, inter alia, “Courts generally try to avoid reaching constitutional issues, especially where, as here, a federal court is asked to pass on a state statute, and the question is not free from doubt.” Id. at 1154.

In SMI Industries, Inc. v. Lanard & Axilbund, Inc., 481 F.Supp. 459 (E.D.Pa.1979), resolution of the constitutional question was again avoided, this time on the basis that since posting and seizure of the contested property were performed by a private person rather than a sheriff, there was no state action such as would offend due process. The court also noted that in addition to the vacuum created by the abandonment of Gross, the very definition of state action was in a state of flux given the then recent decision in Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). There, relief for deprivation of civil rights was sought under 42 U.S.C.S. § 1983. The TJ.S. Supreme Court found that the acts of the city marshal, on behalf of a bailor in enforcing a warehouseman’s lien under the New York Commercial Code, were not subsumable under the sovereign-function doctrine so as to constitute state action violative of the Fourteenth Amendment.

This decision affected not only the already problematical Gross line of cases, but also Ragin v. Schwartz, 393 F.Supp. 152 (W.D.Pa.1975), another authority, parallel to Gross, for the constitutional frailty of the Act. In Ragin, the court held that the sheriff who had physically made levy on the property “had power to act only because he is an official and thus performs ‘under color of law.’ ” Id. at 156. The Ragin conclusion of unconstitutionality was adopted by the court in Luria Brothers & Co. v. Allen, 452 F.Supp. 732 (W.D.Pa.1978), rev’d in part, 672 F.2d 347 (3d Cir.1982), which found that summary seizure of property belonging, not to the tenant, but to a third party contravened the Fourteenth Amendment. The Flagg Brothers holding however, was applied to Luria on appeal, with the Third Circuit again avoiding the constitutional issue. Its conclusion again was that because posting and seizure were performed by a private party, no state action was present to activate due process safeguards.

The thrust of Flagg Brothers is that no overt official involvement in the property deprivation was discoverable when the city marshal supervised, rather than performed, eviction and seizure under the New York statute. In large measure, the rationale for this conclusion was based on the marshal’s dismissal as a defendant in the case by the agreement of all parties. In the estimation of the court, there then remained no official to be involved, overtly or otherwise.

However, the hurdle erected by Flagg Brothers, and the cause of the Luria court’s concern, was the specific finding that state authorization for the warehouseman to sell the attached property was not a delegation of sovereign function. Added to this was the corollary that the title of state action was not necessarily applicable to behavior authorized by the statute, because the resolution of debtor-creditor disputes is customarily a private matter, and, in addition to the statutory methods, other types of relief are available.

Our concern is an analogous one: the right of distress, whether statutory or common law, has customarily been regarded as extra-judicial. M. Stern, Trickett on the Law of Landlord and Tenant in Pennsylvania (1973). Therefore, “any constable carrying out the ‘landlord’s warrant,’ is acting as an agent of the landlord, and not as an officer serving process ...” 25 Standard Pennsylvania Practice 2d § 130:83 (1984). The Flagg Brothers decision, in conjunction with this traditional view of distress as a (private) self-help remedy seems at least superficially to validate the Pennsylvania Act, overruling by indirection all of those cases which hold otherwise.

Guidance can be found, however, from Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), also a section 1983 action, which in interpreting Flagg Brothers clarifies the question before us. In addressing a challenge to the pre-judgment attachment provisions of the Virginia Code, the Supreme Court found the statutory methodology enabling a creditor to levy on a debtor’s property to be unconstitutional. Specifically, the due process requirements of the Fourteenth Amendment were found to be necessitated simply because, “The procedural scheme created by the statute is the product of state action,” Lugar, 457 U.S. at 941, 102 S.Ct. at 2756, and whenever “the State has created a system whereby state officials will attach property on the ex parte application of one party to a private dispute.” Id.

The focus of the Lugar court is therefore on the terms of the statute and its (constitutionally deficient) procedure, rather than, as in Flagg Brothers the defendant’s identity. In examining the former, the Lugar court emphasized the continuing significance of the constitutional “first principle” enunciated by Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), and its progeny, that is, that “the constitutional requirements of due process apply to garnishment and pre-judgment attachment procedures whenever officers of the state act jointly with a creditor in securing the property in dispute.” Lugar, 457 U.S. at 933, 102 S.Ct. at 2751.

Thus, the state having once authorized private action in conjunction with its own officials, must ensure at the outset that the procedural scheme to be followed is beyond (constitutional) reproach. This is never more true than where the owner of the distressed property is not the delinquent tenant, but a third party.

Having said so much, we find that summary judgment was properly granted. Appellant's assertion that the distraint was justified by the statute misses the mark. Having been found nugatory itself, the Act cannot be relied upon to confer legitimacy elsewhere.

Finally appellant argues that because he gave notice, the demands of due process were met notwithstanding the Act’s putative infirmity. When a similar contention was advanced in Stots, supra, the court found that once the statute was invalidated, the exemplary behavior of the implementing party became irrelevant. We see no reason to disagree.

Judgment affirmed.

      . § 250.302 Power to distrain for rent; notice
      Personal property located upon premises occupied by a tenant shall, unless exempted by article four of this act, be subject to distress for any rent reserved and due. Such distress may be made by the landlord or by his agent duly authorized thereto in writing. Such distress may be made on any day, except Sunday, between the hours of seven ante meridian and seven post meridian and not at any other time, except where the tenant through his act prevents the execution of the warrant during such hours.
      • Notice in writing of such distress, stating the cause of such taking, specifying the date of levy and the personal property distrained sufficiently to inform the tenant or owner what personal property is distrained and the amount of rent in arrears, shall be given, within five days after making the distress, to the tenant and any other owner known to the landlord, personally, or by mailing the same to the tenant or any other owner at the premises, or by posting the same conspicuously on the premises charged with the rent.
      A landlord or such agent may also, in the manner above provided, distrain personal property located on the premises but only that belonging to the tenant, for arrears of rent due on any lease which has ended and terminated, if such distress is made during the continuance of the landlord’s title or interest in the property.

      . Pa.R.C.P. Rule 235. Notice to Attorney General.
      Constitutionality of Statute.
      (a) In any proceeding in a court subject to these rules in which an Act of Assembly is alleged to be unconstitutional and the Commonwealth is not a party, the party raising the question of constitutionality shall promptly give notice thereof by registered mail to the Attorney General of Pennsylvania together with a copy of the pleading or other portion of the record raising the issue and shall file proof of the giving of the notice. The Attorney General may intervene as a party or may be heard without the necessity of intervention. The court in its discretion may stay the proceedings pending the giving of the notice and a reasonable opportunity to the Attorney General to respond thereto. If the circumstances of the case require the court may proceed without prior notice in which event notice shall be given as soon as possible; or the court may proceed without waiting action by the Attorney General in response to a notice.

      . § 250.403 reads in pertinent part:

        Exemption of property on premises under lease or sale contract subject to a security interest.
      The following personal property loaned to or leased or hired by any person, or sold in any transaction in which a purchase money security interest is taken or retained shall be exempt from levy and sale on distress for rent so long as the security interest or title thereto remains in the secured party, owner, lender, or lessor if written notice, specifically describing the personal property loaned, leased, hired, or made subject to a security interest, shall be given to the landlord or his agent at the time the said personal property is placed upon the demised premises or within ten days thereafter, which notice shall contain a statement of the respective amounts due on each article named in the notice, and when so given, shall be effective as to such landlord and any future owner or owners of said premises ...

      . § 250.309 reads in pertinent part:
      § 250.309 Sale and notice thereof; distribution of proceeds.
      After the appraisement has been completed, the sheriff, deputy sheriff, constable or deputy constable shall fix a day, time and place of sale, of which at least six days public notice in writing shall be given by handbills. The notice of sale shall specify the personal property to be sold sufficiently to inform the tenant or owner and to induce bidders to attend the sale. On the day and at the time fixed for sale or on any day and time to which said sale may be adjourned, the sheriff, deputy sheriff, constable or deputy constable shall publicly sell the personal property so distrained for the best price that can be obtained for same.

      . Va.Code § 8.01-533 (1977).


author: TAMILIA, Judge:

text:
    514 A.2d 610
    Richard PRYOR, Appellant, v. LANDMARK SAVINGS ASSOCIATION.
    Superior Court of Pennsylvania.
    Argued June 26, 1986.
    Filed Aug. 28, 1986.

      Gary M. Davis, Pittsburgh, for appellant.
    Charles W. Hergenroeder, III, Pittsburgh, for appellee.
    Before ROWLEY, McEWEN and TAMILIA, JJ.
   TAMILIA, Judge:

Plaintiff/appellant, Richard Pryor, appeals a summary judgment granted in favor of defendant/appellee, Landmark Savings Association. Appellant brought suit against Landmark seeking to recover money paid to Landmark by Erie Insurance Exchange.

In 1975, Landmark (then Second Federal Savings & Loan Association) obtained a mortgage on appellant’s residential property to secure a loan to appellant. On June 2, 1981, Landmark commenced a mortgage foreclosure proceeding against appellant and on July 6, 1981, appellant filed for relief under Chapter 13 of the Bankruptcy Code. On July 7, 1981, a default judgment was entered in the mortgage foreclosure action and on July 13, 1981 Landmark commenced execution proceedings.

On February 21, 1982, while the execution proceedings were pending, the premises were destroyed by fire. On February 26, 1982, Landmark was granted relief from the stay in the bankruptcy proceedings and on April 5, 1982, Landmark purchased the mortgaged premises at a Sheriff’s sale held pursuant to the execution proceedings. Lancftnark never pursued any claim for a deficiency judgment.

The insurance policy in question was issued to appellant by Erie Insurance Exchange. According to the mortgage agreement between Landmark as mortgagee and appellant as mortgagor, a foreclosure of the mortgage would give Landmark all right, title and interest of appellant in any insurance policy and would also give Landmark full power to settle or compromise all claims under such policies and to demand and receive all monies becoming payable thereunder. Pursuant to the mortgage agreement, Landmark filed a claim under the insurance policy issued to appellant, and on April 13, 1983, Erie Insurance Exchange paid Landmark $17,415.64.

Appellant contends Landmark was not entitled to any insurance proceeds and that Landmark has been unjustly enriched because it received money from Erie Insurance Exchange. He argues that the Sheriffs sale fully satisfied the mortgage obligation because Landmark did not pursue its right to recover a deficiency judgment and, therefore, Landmark should not be allowed to recover under the insurance policy. Appellant is, in effect, asking us to characterize the insurance proceeds as an indirect deficiency judgment collection.

When reviewing an Order granting summary judgment, we must accept as true all well-pleaded facts in the non-moving party’s pleadings giving that party the benefit of all reasonable inferences to be drawn therefrom. We will uphold the decision when the record indicates an absence of genuine issues of material fact and an entitlement to judgment as a matter of law. Chicarella v. Passant, 343 Pa.Super. 330, 494 A.2d 1109 (1985). Lookenbill v. Garrett, 340 Pa.Super. 435, 490 A.2d 857 (1985).

As the trial judge correctly pointed out, appellant has the wrong party in court. Appellant’s remedy in this case is to file suit against Erie Insurance Exchange. As the lower court stated, “Landmark did nothing that in any way interfered with any right that plaintiff had to recover any benefits to which he was entitled under his insurance agreement with Erie. If Erie mistakenly paid Landmark, this was to the detriment of Erie — not [appellant].” (Slip Op. at p. 3)

Appellant’s argument regarding Landmark’s unjust enrichment is flawed because appellant has not been denied any opportunity to pursue a claim against Erie, and as Landmark asserts, it recovered only the amount still outstanding on the mortgage debt. Clearly, even if we were to presume Landmark has obtained an undeserved benefit, any unjust enrichment has not been at the expense of the appellant. Such a detriment to appellant would be necessary before restitution would be ordered. Martin v. Little, Brown and Co., 304 Pa.Super. 424, 450 A.2d 984 (1981). If there had been full satisfaction of the mortgage debt prior to Landmark’s recovery from Erie, then appellant’s claim would be worthy of attention. See Laurel National Bank v. Mutual Beneficial Insurance Co., 297 Pa.Super. 473, 444 A.2d 130 (1982). Here, however, Landmark received its due and appellants were not deprived of any value to which they were entitled.

Landmark chose to pursue its claim against Erie rather than bring an action for a deficiency judgment against appellant, either remedy being available to it. We note that the mortgage agreement states that the mortgagee (Landmark) was to be named as loss payee, and at all relevant times, Landmark or its predecessor in interest, was named as such. The agreement employed by the mortgagee simply provides alternative means for it to obtain full satisfaction and appellant cannot derive a benefit out of its default or fire-sustained loss to the detriment of the mortgagee.

Although appellant’s arguments are interesting, they are not sufficient to avoid summary judgment for the appellee.

For the foregoing reasons, the judgment of the lower court is affirmed.

Judgment affirmed.

      . The Order of Court granted defendant/appellee’s motion for summary judgment, gave judgment for the defendant/appellee and dismissed plaintiff/appellant’s claim.

      . We are aware of the possible violations of the automatic stay provisions of the Bankruptcy Code. The parties do not address the issue here, but we note that the Bankruptcy court entered an Order of Relief from the automatic stay on February 26, 1982. We presume, therefore, that any issues arising from entry of the default judgment or continuation of the execution proceedings were resolved by the Bankruptcy court and thus the default judgment and Sheriffs sale held pursuant to the execution proceedings resulted from actions which were within the jurisdiction of the Court of Common Pleas.

      . We note that appellant apparently has instituted suit against the insurance company.