author: BECK, Judge: DEL SOLE, Judge,

text:
    657 A.2d 1285
    GERMANTOWN SAVINGS BANK v. Blanche TALACKI and the Estate of Adam Talacki, Deceased. Appeal of Blanche TALACKI.
    Superior Court of Pennsylvania.
    Submitted Nov. 14, 1994.
    Filed May 1, 1995.

      Bayard H. Graf, Philadelphia, for appellant.
    Jodi C. Greenspan, Bala Cynwyd, for appellee.
    Before DEL SOLE, BECK and CERCONE, JJ.
   BECK, Judge:

In this appeal we review, inter alia, the requirements for striking a confessed judgment. Appellee Germantown Savings Bank (“GSB”) confessed judgment against appellant Blanche Talacki and the Estate of Adam Talacki, Deceased, in the amount of $639,846.57. After consideration of appellant Blanche Talacki’s Petition to Strike Off or Open Confessed Judgment, responses thereto and argument thereon, the trial court struck off the judgment against the Estate of Adam Talacki, but denied the petition to strike or open the confessed judgment against Blanche Talacki. Blanche Talacki (“appellant”) filed this timely appeal.

Blanche Talacki and Adam Talacki together with two other individuals, Walter Czekay and Margaret Czekay, formed Blanche Road Associates I (“Blanche Road”), a Pennsylvania Limited Partnership. Adam Talacki was the President and Blanche Talacki the secretary of Blanche Road Corporation, which is the sole general partner of Blanche Road. The Talackis and the Czekays were the limited partners of Blanche Road. On October 3, 1990, Blanche Road entered into a Mortgage and Security Agreement with GSB in the amount of $600,000.00 for property located at 1400 Wells Drive, Bensalem, Pennsylvania. To guarantee the obligations of Blanche Road, a Guaranty and Suretyship Agreement was executed by Adam and Blanche Talacki and Walter and Margaret Czekay in their individual capacities (“Guaranty Agreement”). During the execution of the documents, the Talackis were represented by counsel.

The warrant of attorney in the Guaranty Agreement provides:

6. Each Guarantor hereby irrevocably authorizes and empowers any attorney of record, or Prothonotary or Clerk or any court in the Commonwealth of Pennsylvania or elsewhere, to appear for such Guarantor in any such court at any time and from time to time following the occurrence of an event of default under any of the Loan Documents, and therein to confess or enter judgment against such Guarantor in favor of Bank for the full amount of the Guaranteed Obligations, as evidenced by an affidavit signed by a duly authorized designee of Bank setting forth such amount, plus attorneys’ fees, with costs of suit, release of errors and without right of appeal ...

The loan went into default due to non-payment in or about August 1993. Additionally, in 1991 and 1992, Blanche Road failed to pay the county, township and school taxes. On September 30, 1993, GSB purchased the property at a tax sale.

On October 13, 1993, GSB filed an Averment of Default in accordance with Pa.R.Civ.P. 2952(e), commencing this action by complaint to confess judgment, and naming Blanche Talacki and the Estate of Adam Talacki as defendants. The action was based upon the warrant of attorney clause contained in the Guaranty Agreement. The Assessment of Damages filed with the complaint in confession of judgment includes the outstanding principal balance ($548,890.04), interest ($10,350.14), counsel fees ($27,444.50), cost of suit ($81.50) and “expenses to date” ($53,080.39). “Expenses to date” apparently reflects the amount GSB spent to purchase the Blanche Road property at tax sale.

On February 8, 1994, appellant filed her Petition to Strike or Open Judgment. Although the court struck off the judgment as to the Estate of Adam Talacki, it denied the Petition as to appellant Blanche Talacki.

In this appeal, Blanche Talacki contends that the lower court erred in refusing to strike or open the confessed judgment against her because 1) the warrant of attorney was not intelligently given; 2) the complaint in confession of judgment sets forth claims and amounts GSB knew it was not entitled to recover; 3) GSB knowingly misled the court as to where notice of entry of judgment should be sent by stating the wrong addresses in its complaint; and 4) GSB’s loan is satisfied by operation of law because GSB failed to file a deficiency judgment.

A petition to strike a judgment by confession will be granted where there is an apparent defect on the face of the record on which the judgment was entered. Franklin Interiors v. Wall of Fame Management Co., 510 Pa. 597, 511 A.2d 761 (1986). In reviewing an appeal from a denial of a petition to strike we are limited to determining whether the record as filed by the confessing party is adequate to sustain the judgment. Parliament Ind. v. William H. Vaughan & Co., 501 Pa. 1, 6, 459 A.2d 720, 724 (1983).

The court shall open the confessed judgment if the petitioner promptly presents evidence on a petition to open which in a jury trial would require that the issues be submitted to the jury. Pa.R.Civ.P. 2959(e); Pittsburgh Nat’l Bank v. Larson, 352 Pa.Super. 250, 507 A.2d 867 (1986). A petitioner must offer clear, direct, precise and believable evidence of a meritorious defense, sufficient to raise a jury question. Iron Worker’s S. & L. v. IWS, Inc., 424 Pa.Super. 255, 622 A.2d 367, 370 (1993). We may not disturb the lower court’s refusal to open a confessed judgment unless there was a manifest abuse of discretion or error of law. Id.; Lincoln Bank v. C. & H. Agency, Inc., 500 Pa. 294, 456 A.2d 136 (1982).

We first examine Talacki’s argument that her warrant of attorney was not voluntarily and intelligently given. The Supreme Court of the United States has held that there is a presumption that the warrant of attorney was not knowingly granted in consumer financing and lease transactions where the debtor has an income of less than $10,000; in such cases, the creditor must overcome that presumption by showing that the warrant was voluntarily and intelligently given. Swarb v. Lennox, 405 U.S. 191, 92 S.Ct. 767, 31 L.Ed.2d 138 (1972). However, in commercial transactions where parties are represented by counsel and of equal bargaining power, Pennsylvania’s confession of judgment procedure has been upheld. D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 92 S.Ct. 775, 31 L.Ed.2d 124 (1972) (confession of judgment is valid where there was voluntary, knowing and intelligent waiver of due process rights); International Equity Corp. v. Pepper & Tanner, Inc., 222 Pa.Super. 118, 293 A.2d 108 (1972) (same).

In this case, the parties entered into the commercial loan transaction while represented by counsel, and GSB filed the requisite Affidavit of Income averring that Blanche Talacki’s income exceeded the $10,000 Swarb floor. Appellant presented no evidence to challenge this Affidavit.

A petition to open should be granted only where the petitioner has presented sufficient evidence to submit the issue to a jury. We note that, notwithstanding numerous unsupported factual allegations improperly included in her appellate brief, the only evidence appellant presented below was an affidavit alleging that she did not read the documents she signed, she would not have understood the documents even if she had read them, she signed them at the behest of her husband, and that she believed her attorney was representing her in the matter, and had reviewed the documents. She also alleged in the affidavit that her lawyer, who also represented the debtor Blanche Road, had a conflict of interest at the time he represented her as a guarantor. She further averred that she did not know of the existence of the confession of judgment language in the Guaranty she and her husband signed.

It is well established that, in the absence of fraud, the failure to read a contract before signing it is “an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract”; it is considered “supine negligence.” Standard Venetian Blind Co. v. American Emp. Ins. Co., 503 Pa. 300, 469 A.2d 563, 566 note (1983) (quoting Olson Estate, 447 Pa. 483, 488, 291 A.2d 95, 98 (1972)). Moreover, without evidence to support appellant’s allegations that she did not voluntarily consent to the warrant of attorney, and when appellant’s signature clearly appears on the last page of the Guaranty, we cannot find that the trial court abused its discretion when it refused to open the judgment on this basis. See North Penn Consumer Discount Co. v. Shultz, 250 Pa.Super. 530, 378 A.2d 1275 (1977) (record supported court’s finding that debtors’ allegation that they did not understand warrant of attorney were not credible).

The warrant of attorney in this case appeared as a separately numbered paragraph within the body of the Guaranty; it was paragraph six out of 18, on page three of nine pages. It was printed in the same size type as the rest of the text. It was not a finely printed clause on the unsigned reverse side of the document. Compare Commonwealth Nat’l Bank v. Boet zelen, 338 Pa.Super. 237, 487 A.2d 943 (1985). It is clear that a party’s signature to a contract is designed to evidence his or her intention to be bound thereby. Petrie v. Haddock, 384 Pa. 7, 10, 119 A.2d 45 (1956). Where, as here, the debtor has not alleged fraud, and has produced no evidence to show a lack of capacity to understand the document signed, or that he or she had asked for an explanation of the contract language, the debtor must be held to the contract’s terms. Provco Leasing Corp. v. Safin, 265 Pa.Super. 423, 402 A.2d 510 (1979).

Moreover, appellant has provided no support for her position that her lawyer’s alleged conflict of interest should invalidate her consent to the warrant of attorney. It may be that appellant has an action against her lawyer on this basis, but without more, the mere allegation of a conflict does not affect the validity of the confessed judgment. We find no abuse of discretion in the trial court’s refusal to open the judgment on these several grounds.

We next review Talacki’s allegation that GSB improperly listed her address in the confession filings, and the judgment therefore should have been stricken. This challenge to the judgment was not raised in the Petition to Strike or Open, and thus is waived. Pa.R.Civ.P. 2959(c).

Next, appellant argues that the judgment was void as a matter of law because GSB did not comply with the requirements of the Deficiency Judgment Act, 42 Pa.C.S. § 8103. The statute provides, in pertinent part, that:

(a) General rule. — Whenever any real property is sold, directly or indirectly, to the judgment creditor in execution proceedings and the price for which such property has been sold is not sufficient to satisfy the judgment, interest and costs and the judgment creditor seeks to collect the balance due on said judgment, interest and costs, the judgment creditor shall petition the court having jurisdiction to fix the fair market value of the real property sold. The petition shall be filed as a supplementary proceeding in the matter in which the judgment was entered....

42 Pa.C.S. § 8103(a) (emphasis supplied). If the judgment creditor does not file the petition to fix the fair market value within six months of the date of delivery of the deed to the purchased property, the debtor is entitled to petition the court to mark the judgment satisfied, released and discharged. 42 Pa.C.S. § 8103(d). See Marx Realty & Improvement Co. v. Boulevard Center, Inc., 398 Pa. 1, 156 A.2d 827 (1959) (time limit in Deficiency Judgment Act begins to run at delivery of deed, not date of sheriffs sale); Merriam v. Cedarbrook Realty, Inc., 266 Pa.Super. 269, 404 A.2d 407, 409 (1978) (same).

Appellant argues that GSB was required under this statute to fix the fair market value of the property it purchased at the September 1993 tax sale, and its failure to do so within six months renders the confessed judgment void as a matter of law. This argument is meritless. The failure of a creditor to petition in time to fix value pursuant to the Deficiency Judgment Act bars that creditor from pursuing the balance of that judgment upon which the execution proceedings were based. It does not implicate the validity of a confessed judgment unrelated to the execution proceedings.

In the instant ease, GSB purchased the property pursuant to a tax sale and the purchase was unrelated to the confession of judgment. The tax sale took place as a result of Blanche Road’s failure to pay township, county and school taxes. In fact, GSB purchased the property prior to confessing judgment under the warrant of attorney. At the time of the tax sale, GSB was not a “judgment creditor” of appellant, and the tax sale was not the kind of “execution proceeding” contemplated by the Deficiency Judgment Act. Because the tax sale was separate and apart from the judgment which later was entered under the Guaranty Agreement, and because GSB was not a “judgment creditor” at the time it purchased the property, the Deficiency Judgment Act does not apply.

Nonetheless, in its confessed judgment GSB included the expenses it incurred when it purchased the Blanche Road property at tax sale. The tax sale was not an execution proceeding arising out of the confessed judgment, and it was therefore improper for GSB to have included the expenses therefrom within the amount confessed. The tax sale was independent of the confession of judgment provision under the Guaranty Agreement. GSB should not have confessed judgment for the expenses related to the tax sale in this action. The amount for “expenses” — $53,080.39—was not principal, interest, attorneys’ fees or costs of suit expressly authorized to be confessed under the warrant of attorney in the Guaranty Agreement.

Therefore, we must consider appellant’s argument that the judgment should have been stricken or opened because it included on its face amounts not authorized by the warrant of attorney. A challenge to the accuracy of the amounts allegedly due under the instrument, or an error in computation, should be resolved in a petition to open unless it is evident from the face of the instrument that the amount is grossly excessive or not authorized by the warrant to confess judgment. Davis v. Woxall Hotel, Inc., 395 Pa.Super. 465, 577 A.2d 636 (1990); Leasing Serv. Corp. v. Benson, 317 Pa.Super. 439, 464 A.2d 402 (1983).

In cases where the judgment was grossly excessive or unauthorized by the instrument, however, a motion to strike will be granted. McDowell Nat’l Bank v. Vasconi, 407 Pa. 233, 178 A.2d 589 (1962); Van Arkel & Moss Prop., Inc. v. Kendor, Ltd., 276 Pa.Super. 547, 419 A.2d 593, 595 (1980). In this case, appellant challenged the amount of the attorneys’ fees and the “expenses to date” confessed in her petition to strike. It is clear that the attorneys’ fees are authorized by the warrant; the warrant permits confession of the Guaranteed Obligations “plus attorneys’ fees, with costs of suit.” See Van Arkel & Moss, supra, 276 Pa.Super. 547, 419 A.2d 593 (warrant authorized confession for “rent or any other charge”; judgment properly included amounts for taxes, electricity, water and maintenance); Plum Tree, Inc. v. Seligson, 224 Pa.Super. 471, 307 A.2d 298 (1973) (warrant authorized confession for “any other amounts due pursuant to contract terms” so rent could be included in judgment amount).

The “expenses” related to the tax sale, however, are not authorized. Expenses related to a tax sale are not expressly included in the language of the warrant of attorney, which must be strictly construed. Kline v. Marianne Germantown Corp., 438 Pa. 41, 263 A.2d 362 (1970).

In Park-Main Co. v. Fayette Nat’l Bank & Trust Co., 397 Pa. 75, 152 A.2d 714 (1959), our supreme court held that a confessed judgment properly was stricken where it erroneously included an item of taxes where the warrant of attorney authorized only the entry of judgment for rentals due. See also Housing Mort. Corp. v. Tower Dev’t & Investment Corp., 402 Pa. 388, 167 A.2d 146, (1961) (creditor improperly confessed judgment for insurance premiums under mortgage note); Polis v. Russell, 161 Pa.Super. 456, 55 A.2d 558 (1947) (court struck judgment where it included amounts for repairs that were not authorized by the warrant of attorney).

A judgment by confession properly is stricken when it includes amounts not specified by the warrant of attorney which are “foreign to and so unassimilable with the principal that the total which was finally formed became a heterogeneous rather than a homogeneous whole.” McDowell Nat’l Bank, supra, 407 Pa. at 236, 178 A.2d at 591 (interest, though not specifically authorized by warrant of attorney, may be included in confessed judgment since interest is the “shadow of a debt”). Where the confessed judgment includes an item not authorized by the warrant the judgment is void in its entirety and must be stricken. PNC Bank, N.A. v. Bolus, 440 Pa.Super. 372, 655 A.2d 997 (1995); Colony Fed. S. & L. Ass’n v. Beaver Val. Eng. Supp. Co., 238 Pa.Super. 540, 361 A.2d 343 (1976).

Significantly, the warrant in this case permits confession of the “Guaranteed Obligations,” which are defined in the Guaranty Agreement by reference to loan documents that are not included in the record. Footnote 3, supra. We point out that the appellate court in reviewing an appeal from a denial of a petition to strike is limited to determining whether the record as filed by the confessing party is adequate to sustain the judgment. Parliament Ind. v. Vaughan & Co., supra, 501 Pa. 1, 459 A.2d 720 (emphasis added). The only loan document filed by the confessing party, GSB, is the Guaranty Agreement, and that document does not demonstrate that the “expenses” related to the tax sale constitute part of the “Guaranteed Obligations,” permitting GSB to include expenses related to the tax sale in its confession. We therefore conclude a defect appears on the face of the record, and the record as filed by the confessing party is not adequate to sustain the confessed judgment. Parliament Ind. v. Vaughan, supra, 501 Pa. 1, 459 A.2d 720.

We reverse the trial court’s decision and strike the confessed judgment on the basis of the inclusion of an unauthorized item — the expenses related to the tax sale — in the total amount confessed.

Judgment stricken. Jurisdiction relinquished.

DEL SOLE, J., files a Concurring and Dissenting Statement.

DEL SOLE, Judge,

concurring and dissenting.

I join the Majority in its disposition of all matters except its determination that the inclusion of the items relative to the Tax Sale were not authorized by the Warrant of Attorney. That clause as contained in the GUARANTY AND SURETY-SHIP AGREEMENT provides:

6. Each Guarantor hereby irrevocably authorizes and empowers any attorney of record, or the Prothonotary or Clerk of any court in the Commonwealth of Pennsylvania or elsewhere, to appear for such Guarantor in any such court at any time and from time to time following the occurrence of an event of default under any of the Loan Documents, and therein to confess or enter judgment against such Guarantor in favor of Bank for the full amount of the Guaranteed Obligations, as evidenced by an affidavit signed by a duly authorized designee of Bank setting forth such amount, plus attorneys’ fees, with costs of suit, release of errors and without right of appeal. If a copy of this Agreement, verified by an affidavit, shall have been filed, it shall not be necessary to file the original as a warrant of attorney. In connection therewith, each Guarantor hereby waives the right to any stay of execution and the benefit of all exemption laws now or hereafter in effect. No single exercise of the foregoing warrant or power to confess judgment shall be deemed to exhaust the warrant or power, but the warrant and power shall continue undiminished and may be exercised from time to time as often as Bank shall elect, until all of the Guaranteed Obligations have been paid, complied with and performed as the case may be.

The agreement also defines the term Loan Documents as “This Agreement, the Loan Agreement, the Note, the Mortgage and the other documents executed in connection with the loan and described in the Loan Agreement ...”

Each Guarantor, by signing the Guaranty Agreement, guaranteed complete compliance and performance under all Loan Documents. These are referred to in paragraph number 1 of the Agreement as the “Guaranteed Obligations.” It is for these combined obligations or any part thereof that the Bank may confess judgment under the executed Warrant of Attorney.

The failure to pay the real estate taxes, thus subjecting the mortgaged property to a tax sale capable of divesting the mortgage, would permit the bank to protect the security by paying the taxes or purchasing the property at the tax sale. The payment of realty taxes by a mortgagor is an ongoing obligation of a mortgage.

Under these circumstances, I conclude that the Bank was authorized to confess judgment and include the amount expended at the tax sale to protect the mortgaged property. Therefore, I would not strike the judgment, and from that portion of the Majority disposition, I dissent.

      . The parties do not challenge the portion of the lower court's order striking off the judgment against Adam Talacki’s estate. It is clear that a warrant of attorney to confess judgment terminates upon the death of the maker. Fidelity Bank v. Gorson, 296 Pa.Super. 1, 442 A.2d 265 (1982). Mr. Talacki died in February 1991, and GSB included this fact in its complaint in confession of judgment filed October 13, 1993. Therefore, it was evident on the face of the record that the judgment against Mr. Talacki’s estate was defective, and that part of the confessed judgment properly was stricken. Tr. Ct. Opinion at 2-3. See Haggerty v. Fetner, 332 Pa.Super. 333, 481 A.2d 641 (1984) (judgment can be stricken only for defect appearing on the face of the record).

      . In addition to the Mortgage, several other instruments were entered into including a Promissory Note, a Loan Agreement and an Assignment of Leases and Rents. Tr.Ct. Opinion at 1-2.

      3. The “Guaranteed Obligations” are defined in Paragraph 1 of the Guaranty Agreement:
      The Guarantors irrevocably, unconditionally and absolutely guarantee to Bank and become surety for (a) the prompt payment of the principal sum due to Bank from the Borrower under the Note, together with all interest thereon, (b) the prompt payment of all other sums due to Bank under the terms of the Note and the other Loan Documents and (c) the prompt and complete compliance with and performance by the Borrower of all representations, warranties, covenants, agreements and other obligations to Bank under the terms of any and all of the Loan Documents (the payment, compliance and performance obligations hereinabove guaranteed by the Guarantors are hereinafter collectively referred to as the "Guaranteed Obligations”).

      . We reject the appellant's argument that she was incapable of proceeding with the depositions necessary to develop evidence in support of her claims because she "could not identify the GSB loan officers or the knowledgeable persons” involved in the loan transaction. Pennsylvania Rule of Civil Procedure 209 allows a petitioner to "proceed by rule or by agreement of counsel to take depositions on disputed issues of fact” and this rule certainly benefits a debtor who seeks to present evidence of meritorious defenses in an attempt to open a confessed judgment. See Van Arkel & Moss Prop. Inc. v. Kendor, Ltd., 276 Pa.Super. 547, 419 A.2d 593 (1980) (debtor should have been permitted to take depositions it had noticed prior to decision on petition to strike or open). At the very least, appellant could have presented detailed sworn testimony of her own, instead of making unsupported factual allegations in her appellate brief.

      . Talacki also argues that her late notice of the confessed judgment arose from this incorrect address and caused her to file her Petition to Strike or Open almost four months after the judgment was entered. Although the trial court held that appellant had not presented meritorious defenses to the judgment and therefore refused to open it, the court also would have denied appellant's petition to open on the basis that it was not filed promptly. Tr. Ct. Opinion at 3-4. We note that our courts have allowed much longer delays where the petitioner provided a reasonable explanation for the delay. Lincoln Bank v. C. & H. Agency, Inc., 500 Pa. 294, 456 A.2d 136 (1982) (twelve year delay excusable). Cf. First Seneca Bank & Trust v. Laurel Mount. Dev. Corp., 506 Pa. 439, 485 A.2d 1086 (1984) (28-month delay too long where debtors unreasonably relied upon former attorney's advice). Lack of nolice of confessed judgment often is relied upon by trial courts to excuse late filing of petitions to open confessed judgment. Id. Even without the excuse of lack of notice, we do not see how GSB was prejudiced by the relatively short delay before appellant filed her petition in this case. After it was filed, GSB apparently requested two extensions of time to answer it. We would reverse the trial court's additional holding that the judgment should not have been opened because the petition was untimely filed. See Hellam Township v. DiCicco, 287 Pa.Super. 227, 429 A.2d 1183 (1981) (where judgment was confessed on March 30, 1977, petition to open filed on July 7, 1977 was timely); James v. Silverstein, 224 Pa.Super. 489, 306 A.2d 910 (1973) (court would not deny petition to strike based on four-month delay in absence of detriment to confessing party).

      . The Deficiency Judgment Act would have been applicable only if GSB, as judgment creditor, had purchased the property upon execution of its confessed judgment.

      . The Guaranty refers to "expenses” only once, in paragraph 11:

        11. Each Guarantor hereby agrees to fully indemnify and hold Bank harmless from any and all costs, expenses and losses Bank may incur with regard to any of the Loan Documents and pay, upon demand by Bank, any and all costs, expenses and losses arising from any default by Borrower under any of the other Loan Documents or from the enforcement by Bank of its rights and remedies under this Agreement.
      (emphasis added). The warrant of attorney in paragraph 6 of the Guaranty Agreement does not include the term "expenses.” It is not established on the record that the purchase of the property at the September 1993 tax sale arose from the default of Blanche Road under the Loan Documents or from the enforcement of GSB’s rights under the Guaranty Agreement. Nor is it clear that GSB incurred these expenses "with regard to” the Loan Documents. Judge Del Sole’s statement that "the payment of realty taxes is an ongoing obligation of a mortgage” probably is correct. Concurring and Dissenting Statement, p. 2. However, our cases require strict construction of confession of judgment clauses and do not permit us to make assumptions about the actual contents of particular loan documents that have not been filed of record by the confessing party.


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    657 A.2d 1293
    Dorothy PORTERFIELD, Administratrix of the Estate of Belton Porterfield, III, Deceased, Appellant, v. The TRUSTEES OF the HOSPITAL OF the UNIVERSITY OF PENNSYLVANIA and Matthew T. Kline, M.D., Appellees.
    Superior Court of Pennsylvania.
    Argued March 7, 1995.
    Filed May 4, 1995.

      Claire Neiger, Philadelphia, for appellant.
    Norman R. Segal, Philadelphia, for appellees.
    Before DEL SOLE, BECK and CERCONE, JJ.
   DEL SOLE, Judge:

This is an appeal from an order entering Summary Judgment in favor of Appellees. The court concluded that a general release signed in connection with an automobile accident case barred the Appellant’s subsequent claim for alleged medical malpractice arising out of treatment received following the accident. Because we agree with the court’s conclusion that the “breadth and the generality of the language used to describe the released parties” serves as a bar to recovery against a successive tortfeasor, we affirm.

The main thrust of Appellant’s argument before this court is that it was premature for the trial court to enter a judgment where there existed a material issue of fact. The “fact” issue as advanced by Appellant concerns an apparent mistake which is included on the general release when referring to the date of the automobile accident. The general release refers to an accident which occurred on July 25th, 1986. However, the release is signed and dated months before, on February 6, 1986. Relying on the factual record, including a signed affidavit by Appellant’s decedent’s former counsel who represented him in the accident case, the court concluded that the accident actually occurred on July 25th, 1985, not 1986, and that the release covered all actions arising from the July 25, 1985 accident. Appellant responds that it was improper for the court to consider the testimonial affidavit of former counsel in a Summary Judgment matter since it violates the principles of the Nanty-Glo rule. Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932).

The Nanty-Glo decision directs that summary judgment may not be entered where the moving party relies exclusively upon oral testimony, either through testimonial affidavits or deposition testimony, to establish the absence of a genuine issue of material fact. Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989). An exception to this rule exists where the moving party supports the motion by using admissions of the opposing party or the opposing party’s own witnesses. Estate of Pew, 409 Pa.Super. 417, 598 A.2d 65, 71 (1991), citing Garcia v. Savage, 402 Pa.Super. 324, 586 A.2d 1375 (1991). The exception was applicable in this case where the moving party offered Mr. Porterfield’s deposition testimony and a sworn affidavit of his former counsel in support of the motion.

In their motion for summary judgment Appellees alleged that “Mr. Porterfield was admitted to the Hospital of the University of Pennsylvania on July 25, 1985 for a dislocated right wrist as the result of being involved in a motor vehicle accident on July 25, 1985.” Appellee denied that statement and instead offered a claim that his admission was the result of an accident which occurred when a car struck the vehicle on which he was working, causing the car to come off the jack and injure him. It was not denied that the date of this accident was July of 1985. The deposition testimony of Appellant’s decedent also referred to an accident which occurred on July 25, 1985. Mr. Porterfield testified that he was injured on that date when his car fell upon him and that he was admitted to the hospital on that date. The discharge summaries attached to Appellees’ motion for summary judgment also list the date of admission as July 25, 1985 and they indicate that Mr. Porterfield was being treated for injuries received after a car fell on his hand. Nowhere on the record is there any indication that an accident happened in 1986 instead of 1985 and Appellant never denies the fact that the accident at issue occurred in 1985. Finally a reading of the release makes it evident that a typographical error occurred since it refers to an accident date which post dates the agreement itself. We find no evidence in the record which would indicate that there is a material issue of fact as to the date of the accident which is referred to in the release. Therefore it was entirely appropriate for the court to enter an award of Summary Judgment.

Further it is clear that the general language of the release which discharged not only Leon Brown but “any and all other persons, firms, corporations, associations” from all injuries and damages “known and unknown, foreseen and unforeseen,” applies to bar the present action for medical malpractice which involved treatment sought as a result of the accident. See Smith v. Thomas Jefferson University Hospital, 424 Pa.Super. 41, 621 A.2d 1030 (1993). Appellants allege that Mr. Porterfield was inappropriately prescribed the medication Desyrel and/or that its administration was improperly monitored when it was prescribed along with pain medication in association of his wrist injury. As a result, it is contended that Mr. Porterfield had to undergo an operation which left him impotent. Because it is clear that the “present cause of action against Appellees results from the treatment decedent sought as a consequence of his automobile accident” the language of the release applies. Id. at 47, 621 at 1033.

We further note that the cause of action based upon the alleged medical malpractice accrued in this case before Mr. Porterfield signed the release. The complaint alleges that Mr. Porterfield took the drug Desyrel as directed from November 6, 1985, through and including November 19, 1985. On November 19th he was admitted to the hospital with symptoms which necessitated the surgery, which in turn left Mr. Porter-field impotent. These events occurred months before Mr. Porterfield executed the general release at issue on February 6, 1986. Because the cause of action for medical malpractice accrued before the release was executed, it was proper to hold that the release encompassed the medical malpractice action. Vaughn v. Didizian, 436 Pa.Super. 436, 648 A.2d 38 (1994).

Finally, the recent decision in Harrity v. Medical College of Pa. Hospital, 439 Pa.Super. 10, 653 A.2d 5 (1994), in no way impacts on our decision. In Harrity a guest brought a federal court action against a hotel after she suffered injuries from a fall. Separate state court actions were brought for medical malpractice regarding treatment plaintiff received for injuries resulting from the fall. In settlement of the Federal Court action plaintiff executed a release releasing persons and entities from claims arising out of the accident “and for which suit was brought” in federal court. The Pennsylvania trial court granted summary judgment in favor of the defendants in the medical malpractice action based upon that release.

Upon review this court concluded that the trial court judge had erred in awarding summary judgment. Initially, this court determined that it was improper for that judge to enter the ruling she did because the defendants had presented the same claim to two different judges who refused to grant summary judgment on that ground. We held there was no justification for the trial judge to overrule a decision rendered in the same action by another judge. Further, in dicta, we focused on the specific language of the release and found that it could not be construed as releasing the defendants in the medical malpractice action since it specifically referred to claims “for which suit was brought” in federal court. Because no claim was made in the federal action for injuries caused by the medical treatment, this court concluded that the release was not intended to apply to the malpractice action. In the case presently before us there is no similar limiting language found in the release. Accordingly, we find Harrity inapplicable to this matter.

For these reasons we find the trial court appropriately entered an award of summary judgment in favor of Appellees in this case.

Order affirmed.

      . The death of Appellant’s decedent was unrelated to the automobile accident or medical treatment at issue.


author: HOFFMAN, Judge:

text:
    657 A.2d 1296
    COMMONWEALTH of Pennsylvania v. David CIPTAK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 6, 1995.
    Filed May 5, 1995.

      Shelley Stark, Public Defender, Pittsburgh, for appellant.
    Michael Streily, Asst. Dist. Atty., Pittsburgh, for Com.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from judgment of sentence entered May 19, 1994 for retail theft. Appellant David Ciptak presents the following issue for our review:

1. Did the trial court err in imposing the costs of prosecution on appellant without first determining [the] amount and method of payment as well as appellant’s ability to pay and was trial counsel ineffective for [failing] to object or preserve the issue for appeal.

Appellant’s Brief at 3. For the reasons set forth below, we affirm.

On March 25, 1994, following trial by jury, appellant was convicted of one count of retail theft. The conviction resulted from allegations that on February 24, 1993, appellant absconded from Kaufmann’s store, in Pittsburgh, PA, with cookware valued at $299.99. Appellant was sentenced to twenty (20) to forty (40) months imprisonment and required to pay the costs of prosecution. No post-sentencing motions were filed. On June 3, 1994, appellant filed notice of appeal to this court.

Appellant contends that trial counsel was ineffective for failing to object to the trial court’s imposition of the costs of prosecution on appellant, following his conviction.

A defendant who has been convicted of a crime, is liable for the costs of prosecution, as authorized by statute. Commonwealth v. Coder, 490 Pa. 194, 415 A.2d 406 (1980) (citing Commonwealth v. Coder, 252 Pa.Super. 508, 519, 382 A.2d 131, 137 (1977) (CERCONE, J. dissenting)); Commonwealth v. Bollinger, 274 Pa.Super. 112, 418 A.2d 320 (1979). See generally 9 Pa.Law Encyclopedia § 92. The defendant’s liability for costs is not part of the punishment for the offense, and it is not a sentence to pay something additional to any penalty imposed by law. Commonwealth v. Bollinger, 274 Pa.Super. 112, 418 A.2d 320 (1979). See also 9 Pa.Law Encyclopedia § 92. Instead, the costs of prosecution are incident to judgment. Bollinger, 274 Pa.Super. 112, 418 A.2d 320. See generally 9 Pa.Law Encyclopedia § 92. As appellant was convicted of retail theft, the court properly imposed the cost of prosecution.

Appellant, however, directs this court to Pa.R.Crim.P. 1407(c) which provides:

The court, in determining the amount and method of payment of a fine or costs shall, insofar as is just and practicable, consider the burden upon the defendant by reason of his financial means, including his ability to make restitution or reparations.

Pa.R.Crim.P. 1407(c). Appellant further argues that Pa.R.Crim.P. 1407(c) required the trial court to conduct a hearing to determine the total cost of prosecution, appellant’s ability to pay and the method of payment, prior to imposing costs.

In Commonwealth v. Hightower, we stated that the rules of statutory construction may be applied to interpret the rules of criminal procedure. Commonwealth v. Hightower, 438 Pa.Super. 400, 652 A.2d 873 (1995) (citing Pa.R.Crim.P. 2). It is well accepted that sections of a statute must be read together and construed with reference to the entire statute. Wilson v. Central Penn. Indus. Inc., 306 Pa.Super. 146, 452 A.2d 257 (1982). Further, in determining legislative intent, every word, sentence and provision of a statute must be presumed to have been intended for some purpose. Commonwealth v. Lobiondo, 501 Pa. 599, 462 A.2d 662 (1983). Both the language of a statute and its construction must be interpreted to harmonize both the subject matter and its purpose. See Busy Beaver Bldg. Centers, Inc. v. Tueche, 295 Pa.Super. 504, 442 A.2d 252 (1981); Dear v. Holly Jon Equipment Co., 283 Pa.Super. 74, 423 A.2d 721 (1980). “A construction which fails to give effect to all provisions of a statute or which achieves a result which is absurd or unreasonable must be avoided.” Wilson, 306 Pa.Super. 146, 452 A.2d 257. Moreover, in construing a statute, a court may consider any official comments which were published or otherwise generally available for consideration by the General Assembly prior to its construction of the statute. Commonwealth v. French, 531 Pa. 42, 611 A.2d 175 (1992); Lessner v. Rubinson, 527 Pa. 393, 592 A.2d 678 (1991).

Here, the rules of statutory construction indicate that Pa.R.Crim.P. 1407 deals in its entirety with a defendant’s default from payment of a fine or the costs of prosecution. Rule 1407(a) of the Pennsylvania Rules of Criminal Procedure, precludes a court from imprisoning a defendant for failure to pay a fíne or costs unless, following a hearing, the court determines that the defendant is capable of paying the sums due. In part (b), the statute goes on to outline the forms of relief that the court may provide where it determines that the defendant lacks the financial means to pay the sums due, immediately or in a single remittance. The final provision of the statute, part (d), outlines the steps to be taken after the court has granted the defendant relief in the form of an installment payment plan if the defendant finds himself again in default or believes that default is imminent.

As the provisions of the statute which precede and follow Pa.R.Crim.P. 1407(c) set forth procedure regarding default on payment of costs or fines, we can only conclude that Pa.R.Crim.P. 1407(c) addresses the standard which the court must use in reviewing the defendant’s default. But see Commonwealth v. Mead, 300 Pa.Super. 510, 446 A.2d 971 (1982) (citing 42 Pa.C.S. § 9726(d) and Pa.R.Crim.P. 1407(c) for the proposition that in imposing a fine, the sentencing court must consider the financial resources of the defendant and the burden posed); Commonwealth v. Opara, 240 Pa.Super. 511, 362 A.2d 305 (1976) (relying on Commonwealth v. Martin, 233 Pa.Super. 231, 335 A.2d 424 (1975) and citing Pa.R.Crim.P. 1407(c) for proposition that sentencing court must consider defendant’s financial means in imposing fine); Commonwealth v. Martin, 233 Pa.Super. 231, 234, 335 A.2d 424, 425 (1975) (citing Pa.R.Crim.P. 1407(c), instead of 42 Pa.C.S. § 9726, for the proposition that court erred in sentencing indigent defendant to pay fine of $5000.00). Moreover, as we stated above, the costs of prosecution are not a sentence imposed upon a defendant but a liability derived upon conviction. Coder, 490 Pa. 194, 415 A.2d 406. The comment to Pa.R.Crim.P. 1407 provides “[njothing in this Rule is intended to abridge any rights the Commonwealth may have in a civil proceeding to collect a fine or costs.” Pa.R.Crim.P. 1407 cmt. See generally 24 C.J.S. § 1743 (“An indigent accused may remain liable for the costs of prosecution even though payment of costs is postponed”). See also French, 531 Pa. 42, 611 A.2d 175; Rubinson, 527 Pa. 393, 592 A.2d 678. It necessarily follows that as a quantifiable sum and an absolute liability, costs do not fall subject to the same discretionary valuation afforded the trial court in imposing fines and other sentencing alternafives. Accordingly, as the trial court has not violated any rules in imposing costs on appellant, we affirm judgment of sentence.

Affirmed.

CAVANAUGH and McEWEN, JJ., concur in the result.

      . 18 Pa.C.S. § 3929(a)(1).

      . We note that once the Commonwealth has furnished a bill of costs, the defendant may file exceptions to the bill on grounds that it is incorrect or that the costs are unduly burdensome to the defendant. See, e.g., Coder, 490 Pa. 194, 415 A.2d 406. See also 24 C.J.S. § 1741 (“In accordance with applicable statutes, costs and fees become due upon assessment, and a court may order accused to pay costs either at the time of his first appearance in court or when the suit establishes the reimbursable amount.”).


author: CAVANAUGH, Judge. BROSKY, Judge,

text:
    657 A.2d 1298
    COMMONWEALTH of Pennsylvania v. MIGDALIA CONCEPTION, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 7, 1994.
    Filed May 8, 1995.

      Gerald B. Ingram, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.

      Before CAVANAUGH, KELLY and BROSKY, JJ.
   CAVANAUGH, Judge.

This matter is presently before the court on the appeal of Migdalia Conception from the judgment of sentence entered against her on September 14, 1993 in the Court of Common Pleas of Philadelphia County. For the reasons which follow, we affirm.

On May 18, 1992 Philadelphia police officers arrived at appellant’s apartment at 701 West Wingohocking Street armed with an arrest warrant for Marcus Rivera and an arrest warrant for Robert Vargas. The Vargass’ warrant listed 701 West Wingohocking Street as one of Mr. Vargas’ three addresses. Appellant answered the door, was shown the warrants and photographs of Vargas and Rivera, told the police that she knew neither Mr. Rivera nor Mr. Vargas, and refused the police entry into the apartment. Detective Shawn Trush forcibly entered the apartment and observed, in plain view, an open shoe box containing a green, leafy substance subsequently identified as marijuana. In the bedroom of the apartment, also in plain view on the bureau, the detective observed a large plastic bag containing a green, grassy substance, also later identified as marijuana. The appellant was placed under arrest at the scene. The officers searched the apartment for Vargas and Rivera and found Marcus Rivera hiding in the bathroom shower stall. He, too, was then placed under arrest.

Appellant was charged with hindering apprehension, obstructing administration of law, possession of marijuana with intent to deliver and criminal conspiracy. She filed for suppression of the contraband found in her apartment claiming that the police did not have probable cause to enter her apartment. The motion was denied and, after a non-jury trial, appellant was found guilty of all charges. Timely post-trial motions were filed and denied and on September 13, 1993 appellant was sentenced to two years probation. Appellant now appeals from that judgment of sentence.

On appeal Ms. Conception raises the following issues:

I. The trial court committed reversible error and precluded appellant from getting a fair trial when it denied the motion to suppress evidence.
II. The trial court committed reversible error when it found that the evidence was sufficient beyond a reasonable doubt to sustain a verdict of guilt.

We first address appellant’s claim that the evidence seized in her apartment should have been suppressed. In reviewing such a claim we must determine whether the factual findings of the suppression court are supported by the record and whether the legal conclusions drawn from those facts are in error. Commonwealth v. Roland, 535 Pa. 595, 637 A.2d 269, 270 (1994).

Appellant argues that, notwithstanding the arrest warrant, the police were required to have a valid search warrant to search her residence, and, since they did not, the fruits of the illegal search should have been suppressed. In support of this argument appellant cites the cases of Steagald v. U.S., 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981) and Commonwealth v. Martin, 423 Pa.Super. 228, 620 A.2d 1194 (1993).

In Steagald the United States Supreme Court addressed the narrow issue of “whether an arrest warrant — as opposed to a search warrant — is adequate to protect the Fourth Amendment interests of persons not named in the warrant, when their homes are searched without their consent and in the absence of exigent circumstances.” Id. at 212, 101 S.Ct. at 1648. The court found that an arrest warrant alone was inadequate and that a search warrant would be required in such a case. Pivotal to the decision was the fact that the arrest was pursuant to a warrantless search of the premises of a third party.

In Martin, a panel of this court reversed a denial of a suppression motion and vacated a judgment of sentence since it found the situation indistinguishable from, and thus controlled by, Steagald.

We have reviewed the above-cited cases against the record sent to this court, and have determined, based on the factual dissimilarities, that the instant matter is not controlled by the holding in Steagald.

In the matter before us the police went to 701 West Wingohocking Street armed with two arrest warrants. The warrant for Robert Vargas listed three residence addresses, one of which was 701 West Wingohocking Street. Detective Trush testified at the suppression hearing that this address was listed because he had received reliable information from the narcotics unit of the Philadelphia Police Department that Rivera and Vargas were staying at 701 West Wingohocking, had often been seen in the area and that one of the fugitives had been pursued by a police officer who determined that he ran into 701 West Wingohocking. Based upon this information, Detective Trush, in securing an arrest warrant, listed 701 West Wingohocking in his affidavit of probable cause as a known address of Robert Vargas.

Upon review of this testimony it is clear that the police officer had a reasonable and well-founded belief that 701 West Wingohocking was the residence of at least one of the fugitives. The officer stated so on his affidavit of probable cause for arrest warrant. The subsequently issued arrest warrant listed 701 West Wingohocking Street as one of Mr. Vargas’ addresses. Thus, the cases of Steagald, and Martin are not controlling. Rather, the Supreme Court case of Payton v. New York, supra, as cited in the lower court’s opinion, is of more value in our discussion today for it was in Payton that the Supreme Court stated that; “for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” Id., 445 U.S. at 603, 100 S.Ct. at 1388. This situation occurred in the instant matter and, accordingly, the police did not need a search warrant to enter appellant’s apartment to search for Robert Vargas.

Additionally, since the police did not need a search warrant to enter appellant’s apartment, the admission of the contraband found in plain view was permissible. See: Commonwealth v. Hendrix, 426 Pa.Super. 616, 627 A.2d 1224 (1993).

Accordingly, we find that the suppression court did not err when it denied appellant’s suppression motion and appellant is not entitled to relief on this claim.

Appellant also claims that the evidence at trial was insufficient to sustain the findings of guilt on the charges of hindering apprehension and obstruction of law since both of these crimes require a specific intent on the part of the actor, which specific intent was not established at her trial.

When an appellant challenges the sufficiency of the evidence presented against her our standard of review is narrow:

We must determine whether, viewing all the evidence at trial, as well as the reasonable inferences to be drawn therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense was proven beyond a reasonable doubt. Both direct and circumstantial evidence can be considered equally when assessing the sufficiency of the evidence.”

Commonwealth v. Rementer, 410 Pa.Super. 9, 598 A.2d 1300 (1991), alloc. denied, 533 Pa. 599, 617 A.2d 1273 (1992).

The offense of hindering apprehension or prosecution occurs when a person, “with intent to hinder the apprehension of ... another for crime ... harbors or conceals” said other person. 18 Pa.C.S.A. § 5105(a)(1).

The offense of obstructing the administration of law occurs when a person “intentionally obstructs, impairs or perverts the administration of law ... by force, violence, physical interference or obstacle ...” 18 Pa.C.S.A. § 5101.

The evidence introduced against appellant at her trial included testimony that she physically blocked the door of her apartment to prevent the police from entering and discovering the fugitive hiding in the shower stall of her tiny apartment. Additionally, the fugitive’s clothing was found on the kitchen table in the apartment’s one room parlor/kitchen.

Viewing this evidence, and the reasonable inferences one can draw from it, in the light most favorable to the Commonwealth, we find sufficient evidence to support appellant’s convictions.

Accordingly, as we find appellant is not entitled to relief on her appeal, her judgment of sentence must be affirmed.

Judgment of sentence affirmed.

BROSKY, J., files a Dissenting Opinion.

BROSKY, Judge,

dissenting.

I dissent. I do not see a material distinction between the facts of the present case and those found in Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981), or Commonwealth v. Martin, 423 Pa.Super. 228, 620 A.2d 1194 (1993). As such, the doctrine of stare decisis requires us to follow those precedents.

In both Steagald and Martin, police attempted to execute arrest warrants on individuals at the homes or residences of a third party. In both cases it was found that the arrest warrant did not allow the police to enter the residence of a third party to execute the arrest warrant, and that incriminating evidence found there during the execution of the arrest warrant had to be suppressed. The majority opinion would distinguish the above cited cases because it finds the officers had “had a reasonable and well-founded belief’ that the premises searched was the residence of at least one of the fugitives. I disagree.

Appellant was arrested at the one bedroom apartment she shared with her husband when Philadelphia Police officers, while attempting to arrest two men whom they believed were staying there, discovered marijuana in the apartment. According to the testimony at the suppression hearing the officers who obtained the arrest warrant had been informed that both Rivera and Vargas had been “hiding” at 701 West ■ Wingohocking Street. They further testified that detectives had seen these men in that area on several occasions and the Commonwealth’s brief states that one of the men had even been chased into the apartment there. However, they also listed two other possible addresses for these men in the arrest warrants. Other than the information that the two men were “hiding” there and had been seen near the apartment, no information was presented which tended to establish that the two men were establishing residences at 701 West Wingohocking Street.

Given that the men were characterized as “hiding” at the address in question and given that neither man was a leaseholder of the premises, or displayed any other characteristics of establishing a domicile at the residence in question, I do not believe the mere listing of the address on an arrest warrant turns that address into the fugitive’s “residence” thereby allowing the police to enter the residence in question without also possessing a search warrant. As such, the non-consensual and search warrantless entry into the apartment was a violation of appellant’s fourth amendment rights. In Steagald, Justice Marshall wrote:

in those situations in which a search warrant is necessary, the inconvenience incurred by the police is simply not that significant. First, if the police know of the location of the felon when they obtain an arrest warrant, the additional burden of obtaining a search warrant at the same time is miniscule. The inconvenience of obtaining such a warrant does not increase significantly when an outstanding arrest warrant already exists.

Steagald, 451 U.S. at 222, 101 S.Ct. at 1652-53. These words are quite appropriate here. Since the police had reliable information that the wanted men were hiding at appellant’s residence a search warrant for those premises could have been obtained with little inconvenience to the police. Obtaining that warrant would have given them legal grounds for entering appellant’s apartment to find the men. Since the police did not obtain such a warrant, and since they were not given consent to enter the apartment, I believe that Steagald and Martin compel suppression of the seized evidence.

For the above reasons, 1 dissent.

      . The court did note, however, that it had recognized the previous year, in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), that an arrest warrant alone was sufficient to authorize the entry into a person's own home to effect his arrest.

      . Martin’s home was searched when police were looking for a fugitive for whom they had an outstanding warrant. Martin's home was not the residence of the suspect. Martin moved to suppress evidence seized during the warrantless search of her home.


author: WIEAND, Judge:

text:
    657 A.2d 1302
    Virgie BLAKNEY, Appellant, v. Derrick GAY, Kristol Green, Aim-Rac, Inc., d/b/a Budget Rent-A-Car and Pennsylvania Responsibility Assigned Claims Plan, Appellees.
    Superior Court of Pennsylvania.
    Argued Jan. 25, 1995.
    Decided April 28, 1995.

      Raymond M. Bily, Philadelphia, for appellant.
    Carol A. Murphy, Philadelphia, for appellees.
    Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   WIEAND, Judge:

The issue of first impression in this appeal is whether any provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL) preclude a corporate lessor of vehicles from waiving uninsured motorist coverage under 75 Pa.C.S. § 1731. After careful review, we conclude that such coverage may be waived by a car rental company. Therefore, we affirm the order of the trial court which dismissed an action against the car rental company to recover uninsured motorist benefits.

While walking through an intersection in the City of Chester on November 25, 1990, Virgie Blakney was struck by a vehicle operated by Derrick Gay. Gay was operating the vehicle with the permission of Kristol Green, who had leased the vehicle from Aim-Rac, Inc., t/a Budget Rent-A-Car. Although Green had given him permission to drive the car, Gay was not an “authorized driver” within the terms of the rental agreement. Therefore, the vehicle was deemed uninsured. Blakney then made a claim for uninsured motorist benefits against Aim-Rac’s carrier, but this claim was denied because uninsured motorist coverage had been rejected by the owner-lessor. Blakney then filed an action against Green and Aim-Rac, which the court dismissed on motion for summary judgment. On appeal to this Court, Blakney does not question the summary judgment entered in favor of Green, but argues that Aim-Rac is liable for uninsured motorist benefits coverage because it wrongfully rejected such coverage. We reject this argument and affirm the order of the trial court.

The provisions of 75 Pa.C.S. § 1731(b) specifically provide that a named insured may reject uninsured motorist coverage by signing an appropriate rejection. In this case, the parties are agreed that Aim-Rac rejected uninsured motorist coverage. Moreover, Green waived the purchase of additional coverage when she took possession of the leased vehicle.

Appellant argues that a “named insured” is defined by 75 Pa.C.S. § 1705(f) as an “individual identified by name as an insured in a policy of private passenger motor vehicle insurance.” Therefore, she argues, a corporate rental car company is not a “named insured” who can reject such coverage under 75 Pa.C.S. § 1731. The fallacy in this argument becomes apparent immediately upon an examination of 75 Pa.C.S. § 1705. This section provides for the election of certain tort options, and the definitions contained in subsection (f) are specifically intended to apply solely to the provisions of 75 Pa.C.S. § 1705. These definitions have no application to other sections of MVFRL. Especially, they have no application to the provisions of 75 Pa.C.S. § 1731, which permit a named insured to reject uninsured motorist coverage. An “insured” is defined at 75 Pa.C.S. § 1702, inter alia, as “[a]n individual identified by name as an insured in a policy of motor vehicle liability insurance.”

There is no statutory requirement that uninsured motorist benefits be provided by a liability carrier for third persons who may be injured by an insured vehicle. Third persons are protected by the liability feature of a vehicle’s insurance policy, and not by uninsured motorist benefits. In this case, the appellant was a third person, a stranger to the policy. She was not an insured, a relative of an insured, or an occupant of an insured vehicle. MVFRL contains no requirement that the insurer provide uninsured motorist benefits for all third persons who may be injured by an insured vehicle.

Appellant’s arguments suggest that the trial court’s decision departs from the principle of “maximum feasible restoration” embodied in the now defunct No-Fault Act. Such a departure, however, has been dictated by the legislature. Thus, in Paylor v. Hartford Ins. Co., 536 Pa. 583, 640 A.2d 1234 (1994), the Supreme Court said:

The repeal of the No-Fault Act and the enactment of the MVFRL reflected a legislative concern for the spiralling consumer cost of automobile insurance and the resultant increase in the number of uninsured motorists driving on public highways. The legislative concern for the increasing cost of insurance is the public policy that is to be advanced by statutory interpretation of the MVFRL. This reflects the General Assembly’s departure from the principle of “maximum feasible restoration” embodied in the now defunct No-Fault Act.

Id. at 587, 640 A.2d at 1235.

In this case, appellant not only has attempted to convert uninsured motorist coverage into liability coverage, but she has attempted to create uninsured motorist coverage where none existed. The trial court properly held that the rental company was not liable to appellant because it had rejected uninsured motorist coverage.

Affirmed.

      . The carrier did pay first party benefits in the amount of five thousand ($5,000.00) dollars, which was the limit of its liability.

      . Claims against Gay and the Pennsylvania Responsibility Assigned Claims Plan were disposed of separately and are not involved in the instant appeal.


text:
    657 A.2d 1304
    Cindy SCOTT, for herself and on behalf of her son Cameron Scott, a minor, Appellant, v. George MERSHON, Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 14, 1995.
    Decided May 2, 1995.

      Miles Warner, West Chester, for appellant.
    Robert K. Kalmbach, Kennett Square, for appellee.
    Before WIEAND, BECK and BROSKY, JJ.
   WIEAND, Judge:

This is an appeal by Cindy Scott from a trial court order which dismissed a complaint for child support against George Mershon, the alleged father of her child, on grounds that the action was barred by principles of res judicata. After review, we agree with the trial court and, therefore, affirm.

Cindy and Ira Lee Scott were ostensibly married on April 11, 1987. Approximately four months later, on August 21, 1987, Cindy gave birth to a son, Cameron Scott. Cameron’s birth certificate names Ira Scott as his father. On January 19, 1989, Cindy filed a complaint seeking child support from George Mershon, whom she alleged to be the father of her son. She also petitioned the court to order Mershon to submit to blood tests for the purpose of establishing his paternity. The trial court denied the petition for blood tests and, in response to preliminary objections, dismissed the complaint. The Superior Court affirmed, holding that Cindy had failed to overcome the presumption that a child born during coverture was the child of the husband. Scott v. Mershon, 394 Pa.Super. 411, 576 A.2d 67 (1990). Therefore, the Court concluded, paternity was not a “relevant fact” as contemplated by the Uniform Act on Blood Tests to Determine Paternity. Id. at 417-418, 576 A.2d at 70-71. It observed, as a “coordinate rationale”, that Cindy was estopped from denying the paternity of her husband. The Superior Court concluded:

Therefore, both adherence to the presumption and application of estoppel lead to the same point: the blood test is no longer necessary, whatever the result may be, because legal paternity has been established, and biological paternity is simply no longer relevant. While it is possible to resolve a born-in-wedlock case upon an estoppel rationale, it is not necessary, and therefore it may not be desirable, to do so. The better course is to rely upon the presumption that the husband is the father. It may be logically correct to say that having a child in wedlock estops one from denying paternity. However, we believe that the estoppel rationale will retain more power if reserved for cases to which it alone and not the presumption applies. In the same way, although it could be said that Cindy, by having a child in wedlock, is estopped to deny her husband’s paternity, the presumption alone speaks eloquently and conclusively.

Id. at 419-420, 576 A.2d at 71-72.

On May 10, 1993, almost three years after the Superior Court’s decision, Cindy filed a second complaint for support in which she again requested that the court order Mershon to submit to blood tests. Cindy alleged in this complaint that her marriage to Ira Scott was a nullity because of Ira Scott’s earlier, undissolved marriage to another woman. Cindy contended, therefore, that there was no presumption that the child born during the marriage was a child of her husband. In his answer to the complaint, Mershon asserted the defense of res judicata. Following oral argument, the trial court accepted Mershon’s argument and dismissed the support complaint. Cindy appealed.

In Dempsey v. Cessna Aircraft Co., 439 Pa.Super. 172, 653 A.2d 679 (1995) (en banc), the doctrine of res judicata was discussed by the Superior Court as follows:

The doctrine of res judicata holds that “[a] final valid judgment upon the merits by a court of competent jurisdiction bars any future suit between the same parties or their privies on the same cause of action.” Mintz v. Carlton House Partners, Ltd., 407 Pa.Super. 464, 474, 595 A.2d 1240, 1245 (1991), quoting Stevenson v. Silverman, 417 Pa. 187, 190, 208 A.2d 786, 788 (1965), cert. denied, 382 U.S. 833, 86 S.Ct. 76, 15 L.Ed.2d 76 (1965). The purpose of the doctrine is “to minimize the judicial energy devoted to individual cases, establish certainty and respect for court judgments, and protect the party relying on the prior adjudication from vexatious litigation.” Mintz v. Carlton House Partners, Ltd., supra at 474, 595 A.2d at 1245, quoting Lebeau v. Lebeau, 258 Pa.Super. 519, 524, 393 A.2d 480, 482 (1978).
Where parties have been afforded an opportunity to litigate a claim before a court of competent jurisdiction, and where the court has finally decided the controversy, the interests of the state and of the parties require that the validity of the claim and any issue actually litigated in the action not be litigated again.
Ham v. Sulek, 422 Pa.Super. 615, 621-622, 620 A.2d 5, 8 (1993). Regardless of whether the plaintiff effects a recovery in the first action, he [or she] may not relitigate an action which has once been adjudicated. 46 Am.Jur.2d, Judgments § [524].
Application of the doctrine of res judicata requires that the two actions possess the following common elements: (1) identity of the thing sued upon; (2) identity of the cause of action; (3) identity of the parties; (4) identity of the capacity of the parties. Matternas v. Stehman, 434 Pa.Super. 255, 261, 642 A.2d 1120, 1123 (1994); McArdle v. Tronetti, 426 Pa.Super. 607, 612, 627 A.2d 1219, 1222 (1993), allocatur denied, 537 Pa. 622, 641 A.2d 587 (1984); Banker v. Valley Forge Ins. Co., 401 Pa.Super. 367, 373-374, 585 A.2d 504, 508 (1991), allocatur denied, 529 Pa. 615, 600 A.2d 532 (1991).

Id. at 174-78, 653 A.2d at 680-81. See also: Hammel v. Hammel, 431 Pa.Super. 230, 237-239, 636 A.2d 214, 217-218 (1994); Morgan Guar. Trust Co. v. Staats, 428 Pa.Super. 479, 491-93, 631 A.2d 631, 637-638 (1993).

Principles of res judicata are also applicable to determinations of paternity. See: Wachter v. Ascero, 379 Pa.Super. 618, 550 A.2d 1019 (1988); Gardner v. Gardner, 371 Pa.Super. 256, 538 A.2d 4 (1988), allocatur denied, 521 Pa. 605, 555 A.2d 115 (1989); Manze v. Manze, 362 Pa.Super. 153, 523 A.2d 821 (1987); Shindel v. Leedom, 350 Pa.Super. 274, 504 A.2d 353 (1986); R.J.K. v. B.L., 279 Pa.Super. 71, 420 A.2d 749 (1980); Commonwealth ex rel. Nedzwecky v. Nedzwecky, 203 Pa.Super. 179, 199 A.2d 490 (1964).

In the instant case, it is clear that the four elements of res judicata are present. The parties and their respective capacities are identical. The plaintiff is again seeking support for the same child against the same defendant. Indeed, the complaint filed in 1993 concedes that on January 19, 1989, “Plaintiff filed a Complaint ... seeking the same relief as now-sought in this action.” Cindy does not assert that the four elements are not present, but rather that the action is not barred because prior decisions were based on a “mistaken inference” that she and Ira Scott were married. According to the averments in her complaint filed in 1993, Cindy was living in Texas during the time her first action was being prosecuted. “Had she been able effectively to communicate her correct marital status to her attorneys”, she argues, she would have asserted that the child had been “born out of wedlock because she was herself unmarried.” (emphasis in original). Cindy’s failure to inform her counsel that her marriage may not have been valid, however, will not allow her to avoid the effect of a prior, valid determination.

“The binding effect of a former adjudication does not depend upon the evidence or arguments presented. Inadvertent omission of available evidence is never an acceptable ground for a new action or a new trial.” Fleming v. Strayer, 367 Pa. 284, 288, 80 A.2d 786, 788 (1951) (citations omitted). See: P.L.E. Judgment § 272. Res judicata encompasses not only those issues, claims or defenses that were actually raised in the prior proceeding, but also those which could or should have been raised and were not. See: Fox v. Gabler, 534 Pa. 185, 189, 626 A.2d 1141, 1143 (1993); Duquesne Light Co. v. Pittsburgh Railways Co., 413 Pa. 1, 5, 194 A.2d 319, 321 (1963), cert. denied, 377 U.S. 924, 84 S.Ct. 1221, 12 L.Ed.2d 215 (1964); McArdle v. Tronetti, 426 Pa.Super. 607, 611, 627 A.2d 1219, 1222 (1993); Dyer v. Travelers, 392 Pa.Super. 202, 207, 572 A.2d 762, 764 (1990); General Acc. Fire & Life Assur. Corp., Ltd. v. Flamini, 299 Pa.Super. 312, 316, 445 A.2d 770, 772 (1982).

The matter of paternity was decided in the prior litigation. That determination is res judicata. The order of the trial court, therefore, will be affirmed.

After careful review of the record, however, we disagree with appellee’s contention that the instant appeal was frivolous. “An appeal is frivolous where it lacks any basis in law or fact. Simply because an appeal lacks merit does not make it frivolous.” Marino by Marino v. Marino, 411 Pa.Super. 424, 443, 601 A.2d 1240, 1250 (1992) (citation omitted). Because we have determined that the appeal is not frivolous, we reject appellee’s request to award counsel fees and costs pursuant to Pa.R.A.P. 2744.

The order of the trial court is affirmed. The request for counsel fees and costs is denied.

      . 23 Pa.C.S. § 5104.

      2. Whether the law, in this day of great medical and scientific advances, should continue to countenance the concealment of paternity in fact by a sometimes fictional presumption is a policy issue to be decided by the legislature and/or the Supreme Court.

      . If Cindy had been unaware of her husband's prior marriage and discovered it after the prior litigation, the result would be the same. Generally, "res judicata may not be avoided by the discovery of new evidence bearing on a fact or issue involved in the original action ... even though the newly discovered evidence might have been sufficient to justify a new trial in the first case.” 46 Am.Jur.2d, Judgments § 567 (footnotes omitted).


author: FORD ELLIOTT, Judge.

text:
    657 A.2d 1307
    Marcia RUDICK, v. Stanley RUDICK, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1994.
    Decided May 3, 1995.

      Christine Gale, Pittsburgh, for appellant.
    Jane O’Connell, Pittsburgh, for appellee.
    Before DEL SOLE, FORD ELLIOTT and BROSKY, JJ.
   FORD ELLIOTT, Judge.

Stanley Rudick (“Father”) appeals the February 28, 1994 order of the Court of Common Pleas of Allegheny County which sustained Marcia Rudick’s (“Mother”) exceptions to a hearing officer’s recommendation that Father was not responsible for college support of his two sons due to estrangement. After careful review, we affirm.

The issue presently before us necessitates only a brief review of the most recent procedural history in this protracted litigation. We hereby adopt the trial court’s recitation of the relevant procedural history:

Mother and Father are the parents of two children, Stanley ‘Lee’ age 23, and James age 20. In April 1991, an order for educational support was entered as to the eldest son, Lee. James was living with Father at the time. During James’ last year in high school, Father filed an educational support action for James against Mother. In addition, Mother filed for an increase in educational support for Lee.
Both actions were consolidated to be heard in August 1992. Prior to hearing, James returned to his Mother’s residence. On August 20, 1992, a hearing was held and a recommendation was issued establishing educational support for the two boys to be paid by Father. Mother filed Exceptions to the recommendation. Before argument on Mother’s exceptions, the Supreme Court ruled in Blue v. Blue, 532 Pa. 521, 616 A.2d 628 (1992), that parents were not responsible for educational support past high school. On November 23, 1992, Father filed a Motion to Cancel Exceptions and Terminate the Order based on the Blue decision. The Motion was denied by order of court dated November 30, 1992. After argument, Mother’s exceptions to the August 1992 hearing were dismissed in part and sustained in part. On January 14, 1993, a Motion requesting a hearing on the termination of educational support was presented by Father and a hearing was scheduled for May 21, 1993. This hearing was continued to August 18, 1993. On July 2, 1993, the Pennsylvania legislature passed House Bill 1340 which provides for postsecondary educational costs for adult children whose parents are either separated, divorced, unmarried or otherwise subject to an existing support obligation. On July 21, 1993, Father filed a Petition to Terminate and/or Modify Educational Support alleging: a) that the statute is unconstitutional; and b) even if the statute is constitutional, that he should not be responsible for their educational support due to the estrangement that existed between himself and the children. These issues were scheduled to be heard at the August 1993 hearing. After hearing, a recommendation was issued granting Father’s petition. The prior order for educational support was suspended. The hearing officer stated in her explanation that Father prevailed on his estrangement defense finding that the children had rebuffed Father’s attempts at a relationship and that Father was willing to provide for their college education by private agreement. Mother took exceptions to the Recommendation. After argument, this court sustained Mother’s exceptions and Father appealed the court’s finding that the parties were not estranged.

Trial court opinion, 5/24/94 at 1-3.

Father raises two issues for our review:
I. Whether the Hearing Officer whose Recommendations were overruled by the court below correctly applied the law of Pennsylvania with regard to father’s estrangement defense.
II. Whether the Hearing Officer whose Recommendations were overruled by the court below exceeded her scope of authority by basing her findings in part upon her observation of the parties’ verbal and non-verbal conduct.

Father’s brief at 3.

Before addressing the issues raised by Father, we note that our standard of review of orders entered pursuant to 23 Pa.C.S.A. § 4327, Postsecondary Education Costs, is one of an abuse of discretion. McGettigan v. McGettigan, 433 Pa.Super. 102, 639 A.2d 1231 (1994).

Absent an abuse of discretion, we will not disturb on appeal a properly entered support order. Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). An abuse of discretion ‘is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.’ In re Women’s Homeopathic Hospital of Philadelphia, 393 Pa. 313, 316, 142 A.2d 292, 294 (1958).

Oeler By Gross v. Oeler, 527 Pa. 532, 537, 594 A.2d 649, 651 (1991).

Father first argues that the hearing officer correctly concluded that James and Lee are estranged from him and that this estrangement bars their right to recover support from him for college education expenses.

Under 23 Pa.C.S.A. § 4327(e)(5), the relevant inquiry is whether there has been “any willful estrangement between parent and student caused by the student after attaining majority.” In the seminal case of Milne v. Milne, 383 Pa.Super. 177, 556 A.2d 854 (1989) (en banc), this court decided that, in addition to other factors, divorced parents do not have a duty to support college-age children if those children willfully estrange themselves from their parents. The Milne court opined that the concept of willful estrangement is similar to that of “fault” in spousal support and alimony. Id. at 189-90, 556 A.2d at 861.

In Bedford v. Bedford, 386 Pa.Super. 349, 563 A.2d 102 (1989), this court stated:

Estrangement between a parent and child will only relieve or lessen a parent’s duty to pay support towards a child’s college education when that parent has made a concerted and good faith effort to establish and develop a relationship with his or her child, and the child has unquestionably and willfully rejected the parent’s outstretched hand.

Id. at 358, 563 A.2d at 106.

Father admits that prior to his sons’ attaining the age of majority that he had frequent and significant contacts with both children. The record reflects that for 18 months, James lived with his father. During this time, James completed his junior and senior years in high school. After graduation, James continued to live at his father’s home until sometime in August 1992. James left the home after what he described as a “blow-up.” Stanley “Lee” testified that in October 1992 Father visited him at college and that as late as November 1992 he had received a card from his father. The note on the card which was read into the record reveals the existence, at that time, of a father/son relationship.

However, Father contends his sons have willfully and unilaterally cut themselves off from him despite his continued hope for a relationship. Father’s brief at 11. Mother counters that it was Father who ceased all communication and contact with his sons.

In Powell v. Conway, 386 Pa.Super. 1, 562 A.2d 324 (1989), reversed on other grounds, 533 Pa. 409, 625 A.2d 641 (1993), this court found that an adult child’s estrangement from her father did not relieve the father of his educational support obligation where both father and daughter were responsible for the estrangement. In Powell, father paid court ordered child support for his daughter but made no effort to maintain a relationship with her. The daughter lived with her mother in Florida. When daughter reached majority she travelled to Pennsylvania to visit relatives. While in Pennsylvania, she telephoned her father in an effort to see him. She stated to her father that she would only meet him if he was alone. Father stated he would only meet her if he could bring his wife and children along. The meeting never took place. Subsequently, a petition was filed by daughter seeking support for college expenses. Father alleged the parties were estranged and, therefore, he was not responsible for the payment of college support. The trial court, in granting daughter’s petition, determined that this was a case of mutual rejection rather than estrangement resulting solely from a child rejecting her father’s loving overtures. In affirming the trial court, we stated that “Both [daughter] and her father are responsible for any estrangement between them.” Id. at 7, 562 A.2d at 327.

In Bedford v. Bedford, supra, 386 Pa.Super. 349, 563 A.2d 102, the adult child, Michael, and his father had not had a relationship since Michael was eleven years old. Father’s reasons for discontinuing the relationship were that Michael and his brother continually chided him concerning his actions toward their mother. This behavior along with their negative attitude made his visits intolerable. Michael sought support for college expenses. Father claimed estrangement. The trial court granted Michael’s petition for support. In addressing father’s estrangement argument, this court stated:

Consequently, we do not find that Michael is without fault for allowing the estrangement between himself and his father to continue. However, because Michael cannot be faulted for unilaterally initiating the estrangement, this does not provide a basis for denying Michael support from his father for his college education. Accord Powell v. Conway, 386 Pa.Super. 1, 562 A.2d 324 (1989) (where both father and daughter are responsible for any estrangement between them, case does not require consideration of daughter’s interaction with father ‘to reach a just result’). To conclude otherwise would be to reward father for neglecting his son. This we firmly refuse to do.

Id. 386 Pa.Super. at 358, 563 A.2d at 106 (emphasis in original).

Our examination of the record indicates no evidence of estrangement which would relieve Father of his duty of support. It appears to us that after the November 1992 decision in Blue, supra, 532 Pa. 521, 616 A.2d 628, and the filing shortly thereafter of Father’s petition for termination of educational support, the relationship between Father and his sons deteriorated. While Father claims his sons did not attempt to contact him, his sons claim Father made no effort to contact them. Both Lee and James testified they were confused and angry by the filing of the petition to terminate support.

It is clear to us that there has been a lack of communication between the parties since the filing of the petition to terminate support. James and Lee, however, cannot be blamed for unilaterally initiating the estrangement. Moreover, Father has not demonstrated that he has extended an outstretched hand that has been unilaterally rejected. Bedford, supra at 358, 563 A.2d at 106. We agree with the trial court’s conclusion that the relationship between Father and his sons is one of disagreement and misunderstanding, not estrangement. See trial court opinion, 5/24/94 at 6. Thus, Father’s claim that he is entitled to the defense of estrangement must fail.

As we have already decided there was no willful estrangement, it is not necessary for us to address Father’s second contention that the hearing officer did not exceed the scope of her authority by rendering findings based on the parties’ verbal and nonverbal conduct.

Order affirmed.

      . It would appear, at first glance, that the order appealed from is interlocutory as it is not a final order. However, our review of this matter reveals that the parties agreed to have the hearing officer enter an order for support based on the prior record.

      . Section 4327, in relevant part, provides as follows:
      § 4327. Postsecondary educational costs
      (a) General rule. — Where applicable under this section, a court may order either or both parents who are separated, divorced, unmarried or otherwise subject to an existing support obligation to provide equitably for educational costs of their child whether an application for this support is made before or after the child has reached 18 years of age. The responsibility to provide for postsecondary educational expenses is a shared responsibility between both parents. The duty of a parent to provide a postsecondary education for a child is not as exacting a requirement as the duty to provide food, clothing and shelter for a child of tender years unable to support himself. This authority shall extend to postsecondary education, including periods of undergraduate or vocational education after the child graduates from high school. An award for postsecondary educational costs may be entered only after the child or student has made reasonable efforts to apply for scholarships, grants and work-study assistance. ....

        (e) Other relevant factors. — After calculating educational costs and deducting grants and scholarships, the court may order either parent or both parents to pay all or part of the remaining educational costs of their child. The court shall consider all relevant factors which appear reasonable, equitable and necessary, including the following:
      (1) The financial resources of both parents.
      (2) The financial resources of the student.
      (3) The receipt of educational loans and other financial assistance by the student.
      (4) The ability, willingness and desire of the student to pursue and complete the course of study.
      (5) Any willful estrangement between parent and student caused by the student after attaining majority.
      (6) The ability of the student to contribute to the student’s expenses through gainful employment. The student’s history of employment is material under this paragraph.
      (7) Any other relevant factors.


author: OLSZEWSKI, Judge.

text:
    657 A.2d 1311
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee v. Joseph BRNARDIC, Brnardic Construction Inc., John D. Yelincic; Patricia Bushik, Ryan Bushik; Fleming Keefer and Robert J. Desman. Appeal of John D. YELINCIC.
    Superior Court of Pennsylvania.
    Argued April 28, 1995.
    Filed May 9, 1995.
    Alexander J. Jamiolkowski, Pittsburgh, for appellant.
    Thomas W. Smith, Greensburg, for State Farm, appellee.

      Before ROWLEY, President Judge, and WIEAND, CIRILLO, OLSZEWSKI, BECK, KELLY, POPOVICH, JOHNSON and SAYLOR, JJ.
   OLSZEWSKI, Judge.

In December of 1988, Joseph Brnardic was driving a Chevy S-10 pick-up truck owned by his employer, Brnardic Construction Company, when he hit and injured John Yelincic. Yelincic sued Joseph Brnardic and Brnardic Construction Company. The Company insured its Chevy pick-up with State Farm Mutual Automobile Insurance Company, which tendered the $100,000 limit of the pick-up truck’s liability policy.

Yelincic contended that in addition to the Chevy pick-up truck’s liability policy, he should also receive coverage from the policy on Joseph Brnardic’s and his wife’s personal cars, even though these two cars were not involved in the accident. Like the company pick-up truck, the Brnardics’ personal cars were insured by State Farm. State Farm denied coverage under the personal cars’ policy, and filed this declaratory judgment action to determine its obligations under that policy.

The State Farm policy covering the Brnardics’ personal cars also covered the Brnardics for liability incurred while driving a newly acquired car, a temporary substitute car, or a non-owned car. Hence, Yelincic argued that even though Mr. Brnardic did not own the company truck, his personal car coverage should still pay on the claim. The non-owned car coverage, however, expressly excluded any car which Mr. Brnardic had operated “during any part of more than 45 days in the 365 days preceding the date of the accident.” R. 42a. Mr. Brnardic admitted that he drove the company pick-up truck regularly, for about 270 or 280 of the previous 365 days before the accident. R. 78a. Because this uncontested fact put Brnardic into a clear policy exclusion, the trial court found for State Farm, holding that it had no obligation to pay under the Brnardics’ personal car insurance policies. Yelincic appealed.

On appeal, Yelincic concedes that Mr. Brnardic’s regular use of his company’s pick-up truck does fall within his policy’s exclusion for regular use of a non-owned car. Yelincic’s entire argument is that this exclusion should be considered void as against public policy. Yelincic claims that the exclusion is contrary to the Motor Vehicle Financial Responsibility Law (MVFRL) because it “serve[s] to deny a policy holder financial responsibility.” Appellant’s brief at 12; see 75 Pa.C.S.A. § 1702 (defining financial responsibility as “the ability to respond in damages for liability on account of accidents arising out of the maintenance or use of a motor vehicle in the amount of $15,000 because of the injury to one person and any one accident”).

The trial court flatly rejected this claim, since the truck’s owner did comply with the MVFRL in maintaining financial responsibility for its truck, and Yelincic received that policy’s coverage limit. Trial court opinion, 7/20/94 at 2. We note that the Brnardic Construction Company carried a good deal more coverage than the minimum required under the MVFRL. Because Brnardic Construction is so financially responsible, Yelincic enjoyed $100,000 of coverage instead of the legal minimum of $15,000. If that amount did not cover Yelincic’s damages, he could have brought an action against Mr. Brnardic and possibly against his employer as well, which the record shows have assets to satisfy any judgment Yelincic might obtain.

Instead, Yelincic sought coverage under the insurance policy for the Brnardics’ personal cars, even though these cars had nothing to do with the accident. Because the plain, unambiguous language of this policy excludes coverage for non-owned cars which the policy holder regularly drives, Yelincic contends that this exclusion must be declared void. He argues that the exclusion is against the public interest because it does not provide the greatest possible coverage to injured claimants. While we would use this canon of construction in an unclear or doubtful case, we agree with the trial court that the policy exclusion before us fully comports with Pennsylvania law, and makes good sense as well. We therefore affirm.

The crux of Yelincic’s argument is that when a person buys car insurance, that insurance should pay whenever the person is liable in an accident, regardless of what car the person was driving. Under Yelincic’s approach, car insurance would follow the insured, not the car. Under Pennsylvania law, however, liability insurance follows the car. See 75 Pa.C.S.A. § 1786 (requiring liability insurance coverage for motor vehicles, not for every person who might drive one).

The reason for this is that the cost of liability insurance depends not just on a driver’s record, but also on the type of car itself. Consider two very different types of cars: a big sport-utility vehicle with a powerful V-8 engine and four-wheel drive, versus a two-door economy subcompact. The former weighs more, has more torque and can go much faster than the latter. It follows under the laws of physics that the former is capable of causing a great deal more damage than the latter. Hence, the same driver should expect to pay more for liability insurance on the former car than on the latter, because it can cause worse accidents.

Because liability costs depend on the type of car, insurance companies are entitled to know what kind of cars their insureds drive. An insurance company will not write a liability policy for an unknown car, and the cost of liability insurance depends heavily on the type of car, not just the insured’s driving record. People do occasionally find themselves driving unfamiliar cars, though: rental cars, loaners while their regular cars are in the shop, new cars, and borrowed cars. People naturally want and expect their liability insurance to cover them for accidents in such cars.

Thus, there is a tension between an insurance company’s need to know what kind of cars their insureds drive, and the consumer’s desire to have liability coverage extend to the occasional car not mentioned in the policy. The Brnardics’ policy with State Farm balanced this tension by extending coverage to temporary substitute cars, newly acquired cars, and non-owned cars, subject to a few exclusions. One exclusion was that the insured could not regularly drive the non-owned car, defined as more than 45 days in the year before the accident. This exclusion makes sense: it is one thing to cover an insured while driving a borrowed car, but an insurer needs to know what cars its insured regularly drives in order to charge a proper rate, or even decide whether to take the risk of insuring the driver. See Crum and Forster v. Travelers Corp., 428 Pa.Super. 557, 560, 631 A.2d 671, 673 (1993) (upholding a non-owned vehicle exclusion to prevent a household from obtaining liability coverage on multiple vehicles by insuring only one of them).

Thus, State Farm’s insurance policy in question is clear, and it fully comports with Pennsylvania law. Its limited non-owned vehicle exclusion presents no violation of any public policy. To remove this material basis for assessing risk, as Yelincic asks us to do, would only drive up insurance costs for everyone in this Commonwealth. This would violate public policy. Wolgemuth v. Harleysville Mutual Ins. Co., 370 Pa.Super. 51, 62, 535 A.2d 1145, 1151, alloc. denied, 520 Pa. 590, 551 A.2d 216 (1988). We therefore agree with the trial court’s decision that Yelincic cannot collect on the Brnardics’ personal car insurance policy in this case.

Affirmed.

WIEAND, JOHNSON and SAYLOR, JJ., concur in the result.