author: WIEAND, Judge:

text:
    564 A.2d 485
    Frank McCLOSKEY, Appellee, v. NU-CAR CARRIERS, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued March 30, 1989.
    Filed Aug. 23, 1989.
    Reargument Denied Oct. 20, 1989.

      Gerri L. Sperling, Pittsburgh, for appellant.
    Timothy P. O’Reilly, Pittsburgh, for appellee.
    Before WIEAND, DEL SOLE and MELINSON, JJ.
   WIEAND, Judge:

The issue in this appeal is whether a laborer whose left eye has been injured in an accident but whose vision therein is correctable to 20/40 by lenses is a handicapped person for purposes of applying the Pennsylvania Human Relations Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 951 et seq.

Frank McCloskey was employed as a yardman by Automobile Transport, Inc. (ATI) for eleven years at ATI’s terminal in Pittsburgh. McCloskey’s duties required that he inspect and unload new automobiles which arrived by train or tractor-trailer and drive them to designated area automobile dealers. In 1972, McCloskey was injured when a steel splinter became lodged in his left eye, requiring several surgical procedures. These procedures were successful, however, and the vision in McCloskey’s left eye was restored to 20/40 with the aid of a contact lens and eyeglasses. McCloskey returned to work after an absence of less than six months and resumed his duties as a yardman.

In April, 1979, Ford Motor Company terminated its relationship with ATI and engaged Nu-Car Carriers, Inc. (Nu-Car) to transport its vehicles to the local dealerships. Although Nu-Car took over the ATI terminal, it was not required to hire any of the former ATI employees. Nevertheless, it agreed to accept applications for employment from former ATI employees, and fourteen former ATI yardmen applied, including McCloskey. When interviewed, McCloskey was asked, inter alia, about his length of service with ATI, his driver’s license, and his workmen’s compensation history. McCloskey explained that he had received workmen’s compensation benefits for his eye injury and also for an earlier knee injury. McCloskey held a valid driver’s license and had passed a physical examination which certified that he was not prevented physically from performing the duties of employment as a yardman.

Of the fourteen ATI yardmen who applied for employment by Nu-Car, eight were hired. Four additional persons were hired from ATI’s pool of casual employees to replace yardmen who were not hired. McCloskey was not hired. Nu-Car’s evidence was that he had been reported to be part of a group of employees who were unproductive. McCloskey also had a record of absenteeism and was reported to have had a poor attitude.

McCloskey filed a complaint with the National Labor Relations Board, alleging that Nu-Car’s refusal to hire him had been in retaliation for the workmen’s compensation claims which he had made during his employment by ATI. He also filed a complaint with the Pennsylvania Human Relations Commission in which he alleged unlawful discrimination in Nu-Car’s refusal to hire him. Both claims were denied. McCloskey then filed an action in the Court of Common Pleas of Allegheny County in which he renewed his claims.

Trial without jury was held in December, 1983, but a decision was not rendered until March 30, 1987. The trial court rejected McCloskey’s claim that he had been discriminated against because of prior workmen’s compensation claims. The court also found, however, that McCloskey had been a “handicapped person” for purposes of applying the Human Relations Act and that Nu-Car’s refusal to hire him had not been grounded on legitimate business concerns. Post-trial motions were heard and denied by another judge, who, on September 2, 1988, entered a final decree awarding McCloskey compensatory damages of $33,689.40 and punitive damages in like amount. The court also ordered that McCloskey be given the same grievance rights under the collective bargaining agreement which were enjoyed by other persons hired on May 26, 1979. Nu-Car appealed.

Appellate review of equity matters is generally limited to a determination of whether the trial court committed an error of law or abused its discretion. Hostetler v. Hoover, 378 Pa.Super. 1, 6, 547 A.2d 1247, 1250 (1988); Yoho v. Stack, 373 Pa.Super. 77, 80, 540 A.2d 307, 309 (1988); Rosen v. Rittenhouse Towers, 334 Pa.Super. 124, 129, 482 A.2d 1113, 1116 (1984). Findings of fact made by a trial court sitting in equity are binding on appeal if supported by substantial evidence. Yoho v. Stack, supra. See also: Lessner v. Rubinson, 382 Pa.Super. 306, 555 A.2d 193 (1989).

Section 5 of the Pennsylvania Human Relations Act, 43 P.S. § 955, provides that “[i]t shall be an unlawful discriminatory practice, unless based upon a bona fide occupational qualification ... (b) [f]or any employer, employment agency or labor organization, prior to the employment or admission to membership, to: ... (5) [d]eny employment because of a prior handicap or disability.”

In actions brought pursuant to the Act, as in Title VII discrimination cases, a complainant makes out a prima facie case of discrimination if he establishes that: (1) he is a member of a protected minority; (2) he applied for a job for which he was qualified; (3) his application was rejected; and (4) the employer continued thereafter to seek other applicants of equal qualification. See: Pennsylvania Department of Transportation v. Pennsylvania Human Relations Commission, 510 Pa. 401, 410, 508 A.2d 1187, 1191 (1986) (concurring opinion by Papadakos, J.); General Electric Corp. v. Pennsylvania Human Relations Commission, 469 Pa. 292, 304, 365 A.2d 649, 655-656 (1976). See also: McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Once the complainant establishes a prima facie case, the burden shifts to the employer to show a legitimate, nondiscriminatory reason for not hiring the complainant. See: General Electric Corp. v. Pennsylvania Human Relations Commission, supra at 305, 365 A.2d at 656; Harrisburg School District v. Pennsylvania Human Relations Commission, 77 Pa.Cmwlth. 594, 598, 466 A.2d 760, 762, (1983). “Only then does the production duty again shift to the plaintiff for a full and fair opportunity to demonstrate [the reason given is a] pretext____ Of course, the complainant at all times retains the burden of persuasion on the ultimate issue of whether the employer had a discriminatory motive.” Id., 77 Pa.Commonwealth at 598-599, 466 A.2d at 763 (citations omitted).

The term “handicapped or disabled person” for purposes of the Act means a person who has a physical or mental impairment which substantially limits one or more major life activities, such as his ability to care for himself, perform manual tasks, walk, see, hear, speak, breathe, learn or work. See: Action Industries, Inc. v. Pennsylvania Human Relations Commission, 102 Pa.Cmwlth. 382, 518 A.2d 610 (1986); School District of Philadelphia v. Friedman, 96 Pa.Cmwlth. 267, 507 A.2d 882 (1986); Philadelphia Electric Co. v. Pennsylvania Human Relations Commission, 68 Pa.Cmwlth. 212, 448 A.2d 701 (1982); 16 Pa.Code § 44.4. The complete loss of sight in one eye is an impairment which substantially limits a major life function, namely, eyesight. National R.R. Passenger Corp. (Amtrak) v. Pennsylvania Human Relations Commission, 70 Pa.Cmwlth. 62, 67, 452 A.2d 301, 304 (1982). However, not every physical impairment which a job applicant may suffer constitutes a handicap or disability under Pennsylvania law. See, e.g.: School District of Philadelphia v. Friedman, supra (personality disorder not a disability under PHRA); Philadelphia Electric Company v. Pennsylvania Human Relations Commission, supra (morbid obesity not a handicap under PHRA).

Examining the facts of this case in light of these principles, it appears that McCloskey established that he had applied for a job for which he was qualified, that his application had been refused, and that Nu-Car had continued to seek other applicants with equal qualifications. However, it also seems clear that McCloskey failed to show that he was a handicapped or disabled person within the meaning of the Act. The only evidence McCloskey produced concerning impairment of his vision was his own testimony that the operation on his eye had been successful and that his vision was correctable with contact lenses and eyeglasses to 20/40. The correctable injury suffered by McCloskey is not equivalent to the complete and irreversible loss of an eye suffered by the plaintiff in National R.R. Passenger Corp. (Amtrak) v. Pennsylvania Human Rela tions Commission, supra. A disability does not exist for purposes of applying the Pennsylvania Human Relations Act’s proscription against discrimination where an eye condition can be corrected through the simple use of such common and widely used corrective aids as contact lenses and eyeglasses. In our view, reduced but correctable visual acuity does not per se substantially impair seeing or working. See: Padilla v. City of Topeka, 238 Kan. 218, 708 P.2d 543 (1985) (myopic applicant whose vision was correctable to 20/20 with glasses or contact lenses was not handicapped); Burgess v. Joseph Schlitz Brewing Co., 298 N.C. 520, 259 S.E.2d 248 (1979) (applicant with glaucoma whose vision was correctable with eyeglasses to 20/20 was not presently handicapped). But see: Colorado Civil Rights Commission v. North Washington Fire Protection Dist., — Colo. —, 772 P.2d 70 (1989); Brown County v. Labor & Industry Review Commission, 124 Wis.2d 560, 369 N.W.2d 735 (1985). To adopt a definition of “handicapped” which would include persons whose vision is correctable by eyeglasses or contact lenses would “result in an expansion of disability protection beyond the logical scope of the Act____ Under such an expansive reading any individual rejected for a single job based on a physical impairment would be considered disabled under the law____ This court refuses to make the term handicapped a meaningless phrase.” Cooper v. Hennepin County, — Minn. -, -, 441 N.W.2d 106, 113 (1989).

Appellee relies upon a decision of the Commonwealth Court in Tesco Tank Center, Inc. v. Workmen’s Compensation Appeal Board, 107 Pa.Cmwlth. 469, 528 A.2d 1036 (1987), which held that for the purpose of determining entitlement to workmen’s compensation benefits, only uncorrected vision would be considered in determining whether a claimant was disabled. Such a standard, although applicable in workmen’s compensation cases, cannot be applied realistically or practically in cases alleging discrimination under the Pennsylvania Human Relations Act. The use of eyeglasses and contact lenses is so common that the legislature could not have intended to include all persons who use them within the protection of the statute.

Because appellee failed to prove that he was a handicapped person, the decree granting relief and awarding damages must be reversed. Consequently, we do not consider appellant’s remaining assignments of error.

Decree reversed.

MELINSON, J., dissents.

      . Among those hired by Nu-Car was a person who had filed more workmen’s compensation claims than McCloskey had filed.

      . The trial court rejected similar claims made by a co-plaintiff, Edward Runski, and no appeal was filed from that determination.

      . After it had operated the Pittsburgh yard for less than a year, Nu-Car was forced to turn over operation of the yard to a competitor, thus making full reinstatement by Nu-Car impossible.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    564 A.2d 489
    COMMONWEALTH of Pennsylvania v. Eddie James PERDUE, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 3, 1989.
    Filed Aug. 24, 1989.

      Dennis M. DiMartini, Monaca, for appellant.
    Theresa Dukovich-Ferris, Dist. Atty., Aliquippa, for Com., appellee.
    Before CIRILLO, President Judge, and OLSZEWSKI and WATKINS, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a trial court order denying appellant’s petition for relief under the Post Conviction Hearing Act (PCHA) and granting appellant the right to appeal nunc pro tunc those issues raised at trial. Appellant presents ten issues for our review:

1. whether the trial court erred in refusing to suppress all evidence, including items seized on August 31, 1986, specifically including the contents of a trash bag located in a garage can under the porch of the parsonage and all testimony regarding the same;
2. whether the trial court erred in refusing to suppress all defendant’s statements of September 2, 1986, relating to the items seized from the premises of the parsonage on August 31, 1986;
3. whether the trial court erred in refusing to suppress all items seized on October 24, 1986, during a warrantless search, and all testimony regarding the same;
4. whether the trial court erred in refusing to permit appellant to cross-examine Aaron Blocker (hereinafter “Blocker”) regarding his “drug problem” and use of drugs on the night of the incident;
5. whether the trial court erred in refusing to permit appellant to cross-examine Blocker, regarding the status of Blocker’s convictions, including retail theft convictions, for the purpose of eliciting Blocker’s probation or parole status;
6. whether the trial court erred in refusing to grant a mistrial after the testimony of Solomon Liggett referred to alleged prior criminal activity by appellant;
7. whether any of the counts of criminal mischief and the two counts of institutional vandalism merge for purposes of sentence;
8. whether the sentence pertaining to appellant’s conviction of institutional vandalism is illegal in that the sentence exceeds the maximum for the grade of misdemean- or of second degree;
9. whether trial counsel was ineffective for failing to object to cross-examination of appellant regarding his whereabouts after parting company with Reverend Bolden after 12:45 a.m. on August 31, 1986; and
10. whether trial counsel was ineffective for failing to object to cross-examination of appellant regarding the opening of bank accounts in joint name with others, including Debra Hines and the disposition of church collections into one or more of the joint bank accounts.

Because appellant’s eighth contention has merit, we amend judgment of sentence.

FACTUAL AND PROCEDURAL HISTORY

During the evening of August 30, 1986, and early morning of August 31, 1986, the Triedstone Baptist Church was vandalized. Pews were broken loose and flipped over; an organ and piano were damaged and the word “E-V-I-L” was scratched into the wood surfaces of the respective musical instruments; a stained glass window depicting the Resurrection was damaged; the glass doors to the sanctuary were damaged; and, an amplifier and six microphones were missing from the sanctuary. In addition, the white powdery substance from a fire extinguisher was sprayed throughout the church. On one of the chairs in the sanctuary, the white powder left the outline of a hatchet. Downstairs in the church, leather chairs used for Sunday School were cut, the doors to the pastor’s office and the trustees’ office were “broke.” Trial transcript at 29. A pay telephone had been chopped, a water fountain had been damaged, and sinks in the ladies’ and men’s rooms were plugged with water left running.

On August 31, the damage was discovered by Solomon Liggett, a trustee of the Triedstone Baptist Church, and the police were notified. Upon arrival, Officer Todd inspected the damage while escorted by Mr. Liggett. Thereafter, Officer Boler arrived and observed conditions. While observing conditions, he noticed that the amplifier was missing and, at the same time, a hole was in the stained glass window. Believing that the sound system was thrown through the window, Officer Boler proceeded to the outside of the church and found a garbage can underneath the porch of the adjoining parsonage. Within the garbage can, the officer discovered a garbage bag containing photographs of appellant’s family members, envelopes, bank slips and vouchers relating to checking accounts of appellant and a “Janice McBride,” and two pairs of shoes, at least one pair of which was covered with a white powdery substance sprayed from a fire extinguisher. One of the bank statements pertaining to Janice McBride was pushed in the toe of a shoe. Officer Boler seized these items and placed them in police custody. At the time of the vandalism and search, appellant had been dismissed as pastor of the Triedstone Baptist Church; however, pursuant to the recommendation of a court appointed moderator, appellant was permitted to remain in the parsonage until October 20, 1986.

On October 24, 1986, Sergeant Alston, Mr. Liggett, other church trustees and a locksmith visited the parsonage to prepare lodging for the next pastor. A locksmith was required to unlock the doors because the locks had been changed. Once inside the parsonage, Mr. Liggett identified a metal file cabinet as church property that was normally kept in the pastor’s office. Sergeant Alston directed that the file cabinet be opened by the locksmith. Inside the cabinet was a hatchet which matched the outline on the chair in the church sanctuary. Officer Boler seized the hatchet and also a pair of size 11R boots found in the parsonage. On September 2, 1986, after receiving a call that someone was in the parsonage, Officer Boler went to the premises. At the parsonage, Officer Boler found appellant and asked him whether he had thrown away any of the items he had discovered in the garbage can on August 31. Appellant responded that he was in the process of moving and had thrown away some bank slips and shoes.

Appellant was subsequently charged by criminal information with one count of criminal mischief and two counts of institutional vandalism. Thereafter, trial counsel filed omnibus pre-trial motions, requesting, inter alia, that the trial court suppress evidence seized as the result of the searches conducted on August 31 and October 24. These motions were denied after hearing. On April 6, 1987, following a trial by jury, appellant was found guilty of all charges. After timely post-trial motions were filed and denied, appellant was sentenced to a concurrent term of eight to twenty-three and one-half months imprisonment on counts one and two. In addition, the court imposed a suspended sentence of four years’ probation on count three. A motion for reconsideration and modification of sentence was filed and denied. Subsequently, new counsel filed a notice of appeal to this Court and, pursuant to an order of the trial court, filed a statement of matters complained of on appeal. On March 7, 1988, this Court dismissed the appeal without prejudice to appellant’s rights under the PCHA for failure to file an appellate brief. On April 14, 1988, and August 8, 1988, appellant filed a PCHA petition. After an evidentiary hearing, appellant’s PCHA petition was dismissed and the relief requested denied, excepting that appellant was granted leave to appeal nunc pro tunc those issues raised at trial. This appeal followed.

Initially, we note that appellant’s PCHA petition was filed after the effective date of the amendments to the PCHA which has been renamed the Post Conviction Relief Act (PCRA). According to the PCRA, all amendments to the PCRA “shall apply to all actions for collateral relief, whether statutory or common law, instituted on or after the effective date of this act, irrespective of the date of conviction or sentence.” Historical notes to 42 Pa.C.S. § 9541 et seq. We, therefore, proceed to review appellant’s contentions pursuant to the PCRA.

Under the PCRA, petitioner is entitled to relief if the ineffectiveness of counsel “in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(h). Instantly, appellant alleges that “prior appellate counsel was ineffective in failing to prosecute the [direct] appeal.” PCHA Petition at 6. The PCHA court granted appellant’s request for relief, namely to appeal nunc pro tunc. We find no error and, accordingly, address appellant’s arguments that are preserved for appellate review. See 42 Pa.C.S. § 9542 (PCRA “is [not] intended to provide a means for raising issues waived in prior proceedings.”).

APPEAL NUNC PRO TUNC

Appellant first maintains that the trial court erred in refusing to suppress evidence obtained from the warrant-less search of a trash bag contained in a garbage can located underneath the porch of the parsonage. Appellant had no reasonable expectation of privacy in the items that he abandoned in the garbage can and, accordingly, the evidence was properly admitted.

... [T]he Fourth amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

Katz v. United States, 389 U.S. 347, 351-352, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967) (citations omitted). This privacy test is two-fold: “the expectation must not only be ‘actual (subjective),’ but also one that ‘society is prepared to recognize as reasonable.’ ” Commonwealth v. Cihylik, 337 Pa. Super. 221, 227, 486 A.2d 987, 990 (1985) (citations omitted).

Property rights, actual usage, and historical distinctions are all used to determine whether the Fourth Amendment right to privacy applies. Commonwealth v. Sell, [288 Pa.Super. 371, 377-79, 432 A.2d 206, 210 (1981) ]. But ... “in considering the reasonableness of asserted privacy expectations, ... no single factor invariably will be determinative.” Rakas v. Illinois, supra, 439 U.S. [128] at 152, 99 S.Ct. [421] at 435 [58 L.Ed.2d 387 (1978) ].

Commonwealth v. Lowery, 305 Pa.Super. 66, 71, 451 A.2d 245, 247 (1982).

It is also well established that “no one has a standing to complain of a search and seizure of property that he has voluntarily abandoned.” Commonwealth v. Shoatz, 469 Pa. 545, 553, 366 A.2d 1216, 1220 (1976). “The determination of whether or not there has been an abandonment of property is an ultimate fact, dependent upon the purported act of abandonment and the manifested intent of the person alleged to have abandoned the property.” Commonwealth v. Sero, 478 Pa. 440, 452, 387 A.2d 63, 69 (1978). “The test for abandonment is whether the complaining party could retain a reasonable expectation of privacy in the property allegedly abandoned.” Id. In Commonwealth v. Minton, 288 Pa.Superior Ct. 381, 432 A.2d 212 (1981), this Court held that “placing trash for collection is an act of abandonment which terminates any fourth amendment protection.” Id., 288 Pa.Superior Ct. at 391, 432 A.2d at 217. In Minton, police removed a large plastic bag sitting at the curb side directly in front of the defendant’s residence and discovered marijuana residue in the bag. See also United States v. Reicherter, 647 F.2d 397, 399 (3d Cir.1981) (“Every circuit considering the issue has concluded that no reasonable expectation of privacy exists in a public area for collection”; such trash has been abandoned).

Cihylik, 337 Pa.Super. at 228, 486 A.2d at 991. Recently, the United States Supreme Court in California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988), in accordance with Minton and the majority of state appellate courts that have considered the issue, ruled that the Fourth Amendment does not prohibit the warrantless search and seizure of garbage left for collection outside the curtilage of a home.

In the instant case, the trial court refused to suppress the items seized from the garbage can relying in part on Minton. Appellant maintains that the trial court’s reliance is misplaced because the garbage can was within the curtilage of the parsonage. We disagree with appellant’s contention. As stated earlier, property rights are only one consideration in determining whether a legitimate expectation of privacy exists. Instantly, the record indicates that the parsonage is connected with the church by a covered walkway. Being next to a church, the public has easy access to the parsonage and the surrounding area; In addition we note that, in many instances, a parsonage is not used exclusively as a dwelling, but for other purposes, including meeting and counseling members of the church. As a result, the parsonage and its surroundings are subject to public access. Thus, like the garbage left for collection in Minton and Greenwood, the garbage in the instant case was subject to public inspection. Consequently, no objectively reasonable expectation of privacy existed. We, accordingly, find no error.

Appellant also argues that the trial court erred in using his statements to Officer Boler to support its argument that appellant had abandoned the items seized during the warrantless search of the garbage can. Specifically, appellant claims that these statements are the fruit of an illegal search and consequently cannot be used by the trial court to support the legality of the search. In light of our disposition of the prior issue, we find it unnecessary to address this contention.

Appellant’s third claim is that the trial court erred in refusing to suppress the items seized during a warrantless search of the parsonage on October 24, 1986. Appellant asserts that he had not yet vacated the parsonage when the search was conducted. The Commonwealth maintains that the evidence is to the contrary. Given the circumstances of the instant case, we do not find vacation of the parsonage determinative. Even if we assume that appellant had remained in the parsonage, we cannot conclude that appellant had a reasonable expectation of privacy in the parsonage. “In determining what is 'reasonable’ all surrounding facts and circumstances must be considered.” Commonwealth v. Latshaw, 481 Pa. 298, 306, 392 A.2d 1301, 1305 (1978), cert. denied, 441 U.S. 931, 99 S.Ct. 2050, 60 L.Ed.2d 659 (1979).

Instantly, the record indicates that appellant was hired to serve as pastor of the Triedstone Church, starting in September of 1983. Terms of his employment included a salary of $250.00 per week, insurance coverage for appellant and his family, living accommodations at the parsonage, payment of utilities and attendance at three conferences per year. In July of 1986, appellant was removed as pastor, and given until October 20, 1986, to vacate the parsonage, a period of ninety days. In addition, appellant was to receive salary in the amount of $300.00 per month during his stay at the parsonage. Appellant, however, never received a salary during the ninety-day period.

Given these circumstances, appellant’s expectation of privacy was not reasonable. At the time of the search, appellant did not have sufficient control over the premises to retain a right of privacy. Appellant knew that his employment had terminated and, consequently, the terms of his employment, including living accommodations, would be discontinued. These living accommodations were, in fact, discontinued. In addition, it would be expected that the trustees, responsible for the church properties and finances, would eventually wish to enter the parsonage, after the term of the pastor’s residency, to determine whether the parsonage needed repair or cleaning for the next pastor. We further note that the trustees as legal tenders of the church exercised sufficient control and authority to consent to the search of church property, including the file cabinet found in the parsonage. See Latshaw, supra. We, therefore, conclude that the trial court properly admitted evidence as a result of the October 24 search.

Appellant next contends that the trial court erred in denying appellant’s motion for a mistrial after Commonwealth witness, Solomon Liggett, referred to alleged prior criminal activity by appellant. Specifically, appellant complains of the following testimony:

There were papers from Birmingham, Alabama, records of things pertaining to Eddie J. Perdue working in Alabama at a recreational park and so forth. Some of them were — well, I noticed one paper was where he had filed a complaint for discrimination in the parks. And there was one paper that said they had had a hearing on his work record, and they were telling him that they had found on the time card where it had been tampered with.

N.T. 4/2/87 at 44.

“The ‘controlling question’ in cases raising this issue ‘is whether or not a juror could reasonably infer from the facts presented that the accused had engaged in prior criminal activity.’ Commonwealth v. Allen, 448 Pa. 177, 181, 292 A.2d 373, 375 (1972). If such an inference is created then a mistrial must be granted. However, the Pennsylvania Supreme Court stated in Commonwealth v. Nichols, 485 Pa. 1, 4, 400 A.2d 1281, 1282 (1979) that ‘[not] all references which may indicate prior criminal activity warrant reversal.’ Ibid. As we stated in Commonwealth v. Colon, 264 Pa.Super. 314, 321-322, 399 A.2d 1068, 1071 (1979), there is ‘no per se rule requiring a new trial for every reference [to prior criminal conduct]. The decision whether to declare a mistrial when faced with these situations is addressed to the sound discretion of the trial judge.’ ”

Commonwealth v. Bowermaster, 297 Pa.Super. 444, 450-51, 444 A.2d 115, 118 (1982). Moreover, whether the remark was intentionally elicited by the Commonwealth and whether cautionary instructions were given are considerations relevant to the determination of whether a mistrial is required. Commonwealth v. Coburn, 336 Pa.Super. 203, 485 A.2d 502 (1984); Commonwealth v. Whiteman, 336 Pa.Super. 120, 485 A.2d 459 (1984). Our scrutiny of the record indicates that the trial court properly denied appellant’s motion. First, we note that Mr. Liggett’s testimony is not a clear reference to prior criminal activity. In addition, the Commonwealth explicitly stated at trial that it did not intend to elicit the testimony at issue. Trial transcript at 45. Finally, we note that the trial court provided curative instructions. Trial Transcript at 46. In light of the foregoing, we find no abuse of discretion.

Appellant’s fourth and fifth claims pertain to the cross-examination of Blocker. During direct examination, Blocker testified that, at 12:00 a.m. on August 31, 1986, he saw appellant opening the church door. Appellant maintains that the trial court erred in not allowing trial counsel to cross-examine Blocker in regard to: (1) his use of drugs and alcohol and (2) his current probation or parole status. The scope and limits of cross-examination are largely within the discretion of the trial court and the actions pertaining thereto will not be reversed in the absence of a clear abuse of discretion or error of law. Commonwealth v. Schmidt, 437 Pa. 563, 263 A.2d 382 (1970). “[Questions pertaining to the use of drugs or alcohol are proper when asked ‘for the purpose of attacking the credibility of the witness by showing that at the time of the event to which he testified his powers of observation and memory were impaired, so that his recollection and account of the experience might be inaccurate.’ ” Commonwealth v. Duffy, 238 Pa.Super. 161, 173, 353 A.2d 50, 57 (1975), allocatur denied, quoting Commonwealth v. Dreibelbis, 217 Pa.Super. 257, 261, 269 A.2d 387, 389 (1970). “[(Questions on their use at other times are impermissible.” Commonwealth v. Drew, 500 Pa. 585, 591, 459 A.2d 318, 321 (1983), quoting Commonwealth v. Yost, 478 Pa. 327, 386 A.2d 956, 961 (1978). Instantly, the record indicates that trial counsel was permitted to cross-examine Blocker regarding his drug and alcohol use on the night in question. “The questions that were not permitted by the trial judge concerned times that were unrelated to the litigation and did not affect the testimonial ability of the witness.” Duffy, 238 Pa.Super. at 174, 353 A.2d at 57. We, therefore, find no error.

Appellant’s fifth contention has been waived. Appellant argues that the trial court erred in limiting the cross-examination because it prevented the defense from demonstrating that Blocker was biased in that he expected to receive favorable treatment by the Commonwealth. It is true that “... whenever a prosecution witness may be biased in favor of the prosecution because of outstanding criminal charges or because of any non-final criminal disposition against him within the same jurisdiction, that possible bias, in fairness, must be known to the jury.” Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626, 631 (1986). Instantly, trial counsel, however, did not present this theory to the trial court when the Commonwealth requested a pre-trial ruling with regard to the limits of cross-examination of Blocker. In addition, at trial, the defense failed to present its theory to the court when the Commonwealth objected to the defense^ line of questioning. We, there fore, find the issue was not preserved for appellate review. See generally, Commonwealth v. Kaminski, 349 Pa.Super. 78, 85-87, 502 A.2d 1281, 1285 (1985) (Claim waived where defendant did not object to court’s limiting ruling and also indicated satisfaction with court’s ruling.)

Appellant also contends that he was improperly sentenced because criminal mischief and institutional vandalism merge for purposes of sentencing. Recently, our Supreme Court in Commonwealth v. Leon Williams, 521 Pa, 556, 559 A.2d 25 (1988), modified the traditional merger analysis summarized in Commonwealth v. Michael Williams, 514 Pa. 124, 522 A.2d 1095 (1987). In Michael Williams, the Court stated:

[Mjerger is required only when two prerequisites are met. First, the crimes must ‘necessarily involve’ one another. Second, even if the two crimes necessarily involve one another, they do not merge if there are substantially different interests of the Commonwealth at stake and the defendant’s act has injured each interest. To determine whether multiple offenses involve substantially different interests, or how many evils are present in a given criminal act, the sentencing court must examine both the language of the particular statutes and the context in which each statute appears in the Crimes code.

Id., 514 Pa. at 135, 522 A.2d at 1101. This analysis was modified in Leon Williams by the Court providing that “except for lesser included offenses, the doctrine of merger based on whether the Commonwealth has an interest in prosecuting a criminal defendant for more than one crime is hereby abrogated and abolished.” Id., 521 Pa. at 564, 559 A.2d at 29. Consequently, in reviewing merger claims, we are required to apply the following holding: “Where the same facts are used to support convictions for crimes having different elements, the crimes do not merge for sentencing purposes, unless the same facts support convictions of lesser included offenses.” Commonwealth v. Weakland, 521 Pa. 353, 363, 555 A.2d 1228, 1233 (1989).

Applying the foregoing holding to the case sub judice, we first must determine whether criminal mischief and institutional vandalism share the same elements. We conclude that they do not. Pursuant to 18 Pa.C.S. § 3304(a), a person is guilty of criminal mischief if he:

(1) damages tangible property of another intentionally, recklessly, or by negligence in the employment of fire, explosives, or other dangerous means listed in section 3302(a) of this title (relating to causing or risking catastrophe);
(2) intentionally or recklessly tampers with tangible property of another so as to endanger person or property; or
(3) intentionally or recklessly causes another to suffer pecuniary loss by deception or threat.

A person commits the offense of institutional vandalism if he knowingly desecrates as defined in section 5509 (relating to desecration of venerated objects), vandalizes, defaces or otherwise damages:

(1) any church, synagogue, or other facility or place used for religious worship or other religious purposes;
(2) any cemetery, mortuary or other facility used for the purpose of burial or memorializing the dead;
(3) any school, educational facility, community center, municipal building, courthouse facility or juvenile detention center;
(4) the grounds adjacent to and owned or occupied by any facility set forth in paragraph (1), (2) or (3); or
(5) any personal property located in any facility set forth in this subsection.

18 Pa.C.S. § 3502(a). It is evident from the statutory definitions delineated supra that criminal mischief involves negligent and reckless conduct whereas institutional vandalism involves intentional conduct. Furthermore, criminal mischief, unlike institutional vandalism, entails endangerment of persons and does not entail desecration. See 18 Pa.C.S. § 5509(b) (“[T]he word 'desecrate’ means defacing, damaging, polluting or otherwise physically mistreating in a way that the actor knows will outrage the sensibilities of persons likely to observe or discover the action.”).

Although the elements of the crime differ, the facts which established the commission of institutional vandalism also served as the basis for conviction under 18 Pa.C.S. § 3304. The two crimes arose out of a single criminal episode whereby church property was damaged. Consequently, pursuant to Leon Williams, the crimes do not merge.

Appellant also contends that the imposition of sentence on count three for institutional vandalism exceeded the statutory maximum. The jury found that appellant was guilty of institutional vandalism for pecuniary loss in the amount of $1,000.00. At sentencing, the trial court imposed a suspended sentence of four years’ probation. Pursuant to 18 Pa.C.S. § 3502(b), institutional vandalism “is a felony of the third degree if the act is one of desecration ... or if the actor causes pecuniary loss in excess of $5,000.00____ Otherwise, institutional vandalism is a misdemeanor of the second degree.” “A person who has been convicted of a misdemeanor may be sentenced to imprisonment for a definite term which shall be fixed by the court and shall be not more than ... two years in the case of a misdemeanor of the second degree.” 18 Pa.C.S. § 1104(2). Moreover, a sentencing court may place a defendant on probation for a period of time not to exceed the maximum term of imprisonment authorized by law for the offense which was committed. 42 Pa.C.S. § 9721(a)(1). Instantly, the trial court agreed with appellant’s contention; however, it refused to modify the sentence because appellant did not request modification of sentence on this basis at an earlier date. We find the trial court erred in finding that appellant waived his contention. “A sentence that exceeds the statutory maximum is not subject to waiver.” Commonwealth v. Lane, 236 Pa.Super. 462, 465 n. 5, 345 A.2d 233, 234 n. 5 (1975), allocatur denied; Commonwealth v. Mitchell, 319 Pa.Super. 170, 465 A.2d 1284 (1983), corrected, 483 A.2d 1389 (Pa.Super.1983) (Illegality of sentence cannot be waived; therefore, defendant’s failure to raise issue previously does not preclude Superior Court’s consideration of it.). We amend the sentence to provide for two years’ probation. See Commonwealth v. Walker, 286 Pa.Super. 239, 241-42, 428 A.2d 661, 662 (1981) (Superior Court has power to amend sentence provided sentence is not increased.).

CLAIMS PERTAINING TO TRIAL COUNSEL’S INEFFECTIVENESS

Appellant’s final arguments pertain to allegations of ineffective assistance of trial counsel. Specifically, appellant maintains that trial counsel was ineffective for failing to object to Commonwealth’s cross-examination of appellant regarding: (1) his whereabouts after parting company of Reverend Bolden on August 31, 1986, after 12:45 a.m.; (2) the opening of bank accounts in joint names with others including Debra Hines; and (3) the disposition of church collections into one or more of the joint accounts. We do not find that counsel’s failure to object in these circumstances undermined the reliability of the jury verdict. During direct examination, appellant testified that he was in Reverend Bolden’s company from approximately 11:45 until 12:45 during the evening of August 31, 1986. This time period coincided with the eyewitness identification of appellant at the church. Given these circumstances, it was within the proper scope of cross-examination for the Commonwealth to question appellant regarding his whereabouts during the night and early morning of the incident. Moreover, the questions were relevant and within the accepted limits of cross-examination for the Commonwealth was entitled to attack the credibility of appellant by demonstrating that appellant’s memory was selective.

The Commonwealth’s cross-examination was also proper with regard to any joint accounts that may haven been held by Debra Hines and appellant. As the PCHA court notes, Debra Hines was listed as an alibi witness for the defense. During cross-examination, appellant admitted that he was with Ms. Hines during a part of the early morning hours of August 31, 1986. Consequently, the prosecutor’s subsequent questions in reference to any joint accounts were relevant and proper in that they attacked the credibility of appellant by exploring appellant’s relationship with Ms. Hines.

Finally, any reference to the disposition of church funds as a result of the Commonwealth’s cross-examination did not result in prejudice to the defendant. We disagree with appellant that the following testimony clearly refers to prior criminal conduct:

Q Now, something has been made of the fact that payments weren’t made out of the standard church account after March of 1986. Is it correct you started collecting the money yourself and putting it into one of these accounts.
A No, sir.
Q That were opened?
A This is not correct.
Q You didn’t put it into a new account, open a new account for the church?
A No, I did not.
Q You had another account, the pastor’s account. What was that for?
A That was an auxiliary account just like there are thirteen other accounts in the church that have signatures to it to do whatever they are doing it for.

N.T. 4/2/87 at 234. See Commonwealth v. Potts, 314 Pa.Super. 256, 275-77, 460 A.2d 1127, 1137 (1983) (Characterization is prejudicial if the testimony conveys, either expressly or by reasonable implication, the fact of a prior criminal offense.). It, therefore, follows that trial counsel’s failure to object to Commonwealth’s questioning did not undermine the reliability of the jury verdict.

Accordingly, sentence on count three for institutional vandalism is modified to two years’ probation; otherwise, judgment of sentence is affirmed.

      . A moderator had been appointed as a result of a civil lawsuit between the church and the pastor.

      . Appellant initially filed a "Petition to Set Bond Pending the Filing and Consideration of a PCHA Petition” (hereinafter "Petition to Set Bond”). Subsequently, appellant filed an "Amended Petition under Post Conviction Hearing Act.” Despite appellant’s headings, only one PCHA petition was filed. In appellant’s Petition to Set Bond, appellant merely expressed his intention of filing a PCHA petition upon receipt of appellant's entire file from prior counsels.

      . Even if we treat appellant's Petition to Set Bond as a PCHA petition, it was filed sifter the effective date of the PCRA.

      . It is unclear from the record who changed the locks to the parsonage. Even assuming that appellant changed the locks, we find that his actions insufficient to establish an objective expectation of privacy given that he no longer retained control of church property as a result of his removal as pastor.

      . Appellant contends that appellant’s tampering with his time card was a clear reference to prior criminal activity on part of appellant, in the nature of theft by deception and/or false reports. Finding the reference to be ambiguous, we disagree.

      . Appellant attempts to preserve this claim by alleging "prior trial counsel was ineffective in failing to raise the issues ...” PCHA petition at 6. He, however, fails to prove that trial counsel’s ineffectiveness undermined the reliability of the jury verdict. Blocker’s credibility was impeached by crimes involving dishonesty or false statement. In addition, trial counsel was able to cross-examine Blocker with regard to his use of alcohol on the night in question. Given these circumstances, we find that appellant is not entitled to relief pursuant to the PCRA.

      . In Weakland, the Supreme Court did not apply this holding because the problem was not whether the same facts supported multiple convictions, but whether facts in evidence additional to those facts establishing one crime should have been used to satisfy the element of another crime. Id., 521 Pa. at 353, 555 A.2d at 1228. We are not presented with that problem in the instant case.

      . The Commonwealth concedes that appellant’s sentence was beyond the statutory maximum.


author: KELLY, Judge:

text:
    564 A.2d 498
    Vicki GWALTNEY and Charles Gwaltney, Her Husband, Appellants, v. Vincent Lee STONE, Jr., Appellee.
    Superior Court of Pennsylvania.
    Argued May 23, 1989.
    Filed Sept. 13, 1989.

      Irving M. Portnoy, Pittsburgh, for appellants.
    James H. English, Asst. Dist. Atty., Altoona, for Stone, appellee.
    Before OLSZEWSKI, MONTEMURO and KELLY, JJ.
   KELLY, Judge:

In this opinion we are called upon to determine whether a cause of action, which accrued in Tennessee but was filed in Pennsylvania, was time-barred by the one year limitations period set forth in a Tennessee statute of limitations which applied in this Pennsylvania case pursuant to a Pennsylvania borrowing statute. For the reasons which follow, we find that the action was time-barred, and that the trial court properly dismissed the complaint. Accordingly, we affirm.

The facts and procedural history are not in dispute. Vicki Gwaltney and Charles Gwaltney, plaintiffs-appellants, are residents of Baltimore, Maryland. Vincent Lee Stone, Jr., defendant-appellee, is a resident of Blair County, Pennsylvania. On September 2, 1982, Mrs. Gwaltney was riding as a passenger in a vehicle proceeding along Interstate 81 when the vehicle was rearended by a vehicle driven by Mr. Stone. The accident occurred in Hamblen County, Tennessee.

A writ of summons was issued on August 6, 1984, twenty-three months after the accident, and was served upon Mr. Stone. Thereafter, on November 27, 1984, the Gwaltneys filed a complaint in Blair County, Pennsylvania, alleging negligence on behalf of Mr. Stone and requesting damages in excess of $10,000. On January 8, 1985, Mr. Stone filed an answer with new matter in which he alleged that the action was time-barred by Tennessee’s statute of limitations as applied pursuant to Pennsylvania’s borrowing statute. The Gwaltneys filed a reply on February 19, 1985, in which they asserted that the action was not time-barred because it was properly filed in Pennsylvania and within the applicable period pursuant to Pennsylvania’s statute of limitations. On May 20, 1985, Mr. Stone filed a motion for judgment on the pleadings. On November 15, 1988, the trial court entered an order granting Mr. Stone’s motion for judgment on the pleadings, and dismissing the Gwaltneys’ complaint. The Gwaltneys filed this timely appeal.

The Gwaltneys’ sole contention on appeal is that the trial court erred in applying Tennessee’s statute of limitations to time-bar an action which was filed timely in Pennsylvania against a Pennsylvania resident as Tennessee’s only contact with the instant action was the fortuitous happening of the incident there. We find that the trial court did not err.

Our standard of review of an appeal from a grant of a motion for judgment on the pleadings is well established.

... [W]e must accept as true all well-pleaded statements of fact of the party against whom the motion is granted and consider against him only those facts that he specifically admits. The parties cannot be deemed to admit either conclusions of law or unjustified inferences.
We will affirm the grant of such a motion only when the moving party’s right to succeed is certain and the case is so free from doubt that the trial would clearly be a fruitless exercise. In conducting this inquiry, the court should confine its consideration to the pleadings and documents attached thereto.

Jones v. Travelers Insurance Co., 356 Pa.Super. 213, 217, 514 A.2d 576, 578 (1986) (citations omitted).

We note initially that under the law of Pennsylvania, it is the duty of the one asserting a cause of action to use all reasonable diligence to inform himself or herself properly of the facts and circumstances upon which the right of recovery is based and to institute suit within the prescribed statutory period. Ciccarelli v. Carey Canadian Mines, Ltd., 757 F.2d 548, 556 (3d Cir.1985) (citing Pennsylvania cases). Mere mistake, misunderstanding or lack of knowledge on the part of the plaintiff is not sufficient to toll the running of the statute of limitations. Ciccarelli v. Carey Canadian Mines, Ltd., supra. Additionally, there is no absolute and unlimited constitutional right of access to courts; all that is required is a reasonable right of access, ie. a reasonable opportunity to be heard. Ciccarelli v. Carey Canadian Mines, Ltd., supra, 757 F.2d at 554.

This Court has stated that the statute of limitations begins to run in a tort case when the cause of action accrues, meaning the date the injury is sustained. Pounds v. Lehman, 384 Pa.Super. 358, 361, 558 A.2d 872, 873 (1989), quoting Larthey by Larthey v. Bland, 367 Pa.Super. 67, 532 A.2d 456 (1987); see also Mack Trucks, Inc. v. Bendix-Westinghouse Auto. A.B. Co., 872 F.2d 18, 20 (1966); Rostron v. Marriott Hotels, 677 F.Supp. 801, 802 (1987). “The injury is done when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable.” Pounds v. Lehman, supra; see also Mack Trucks, Inc. v. Bendix-Westinghouse Auto. A.B. Co., supra. The general purpose of a limitations period is to balance the interests of a potential plaintiff in having a reasonable amount of time in which to pursue a legal claim against the potential defendant’s right to be free from the vexation of dilatory or stale claims. Pounds v. Lehman, supra, 558 A.2d at 874; see also Comment, The Impact of Significant Contacts on the Pennsylvania Borrowing Statute, 72 Dick.L.Rev. 598, 599-600 (1968).

Instantly, the trial court held that the Tennessee one year statute of limitations was applicable, and therefore fully time-barred the Gwaltneys’ cause of action. We agree.

The Tennessee statute of limitations was made applicable to the Gwaltneys’ cause of action through the Pennsylvania borrowing statute, which provides:

(b) General rule. — The period of limitation applicable to a claim accruing outside this Commonwealth shall be either that provided or prescribed by the law of the place where the claim accrued or by the law of this Commonwealth, whichever first bars the claim.

42 Pa.C.S.A. § 5521(b). (Emphasis added). Tennessee has a one year statute of limitations for personal injuries:

Personal tort actions. — (a) Actions, for ... injuries to the person, ... whether said actions are grounded or based in contract or tort, civil actions for compensatory or punitive damages, or both, brought under the federal civil rights statutes, and actions for statutory penalties shall be commenced within one (1) year after cause of action accrued.

Tenn.Code Ann. § 28-3-104 (1980). Pennsylvania has a two year statute of limitations for personal injuries:

The following actions and proceedings must be commenced within two years:
* * * * * *
An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.

42 Pa.C.S.A. § 5524(2). Therefore, in accordance with the mandate of the Pennsylvania borrowing statute, the trial court applied the Tennessee one year statute of limitations.

The Gwaltneys, however, argued that due to Mr. Stone’s absence from Tennessee, the running of the Tennessee statute of limitations was tolled under Tennessee law. The Tennessee tolling statute provides:

If at any time any cause of action shall accrue against any person who shall be out of this state, the action may be commenced within the time limited therefor, after such person shall have come into the state; and, after any cause of action shall have accrued, if the person against whom it has accrued shall be absent from or reside out of the state, the time of his absence or residence out of the state shall not be taken as any part of the time limited for the commencement of the action.

Tenn.Code Ann. § 28-1-111 (1980). The trial court, citing Young v. Hicks, 250 F.2d 80 (8th Cir.1957), held that the statute of limitations period was not tolled during Mr. Stone’s absence from Tennessee because Tennessee provides for service of process of non-resident motorists pursuant to the following statute:

Pre-trial discovery depositions. — (a)(1) Any owner, chauffeur or operator of any motor vehicle that is not licensed under the laws of this state, or any nonresident who, acting in behalf of the owner of any such vehicle, uses or causes to be used any such motor vehicle in this state, or any nonresident of the state of Tennessee who shall hire or procure the use of a motor vehicle licensed under the laws of this state for temporary use herein and who shall make use of the privilege hereby extended to nonresidents of the state to operate such vehicle on highway or highways within the state shall be deemed thereby to constitute the secretary of state of this state his agent for acceptance of service of process in any civil action brought by any person against him arising out of any accident or injury occurring in this state in which such vehicle is involved;____

Tenn.Code Ann. § 20-2-203 (1980). (Emphasis added). Thus, Mr. Stone had a legal presence in Tennessee through the Secretary of State of Tennessee under Tennessee law throughout the time period in question.

Mr. Stone was not served by the Gwaltneys through the Tennessee Secretary of State. Instead, the Gwaltneys commenced their action in Pennsylvania against Mr. Stone twenty-three months after the accident occurred in Tennessee. Consequently, the trial court concluded, after application of the pertinent statutes, that the Gwaltneys’ cause of action was time-barred.

On appeal, the Gwaltneys argue that the history and underlying purpose of the Non-Resident Motorist Statute render it inapplicable to the instant case. The Gwaltneys assert that the statute was promulgated to benefit the residents of Tennessee, not non-residents. See Bertrand v. Wilds, 198 Tenn. 543, 281 S.W.2d 390, 393 (1955). Additionally, the Gwaltneys assert that the statute’s purpose was to benefit the injured person, not the person causing the injury. See Anderson v. Outland, 210 Tenn. 526, 360 S.W.2d 44, 47 (1962). Hence, the Gwaltneys claim that the trial court failed to recognize that the history and underlying purpose of the Non-Resident Motorist Statute rendered it inapplicable to the instant case and that, as a result, the Tennessee tolling statute tolled the limitations period. We find no merit to this claim.

A state has the power to forbid a non-resident to do acts within the state involving danger to life or property, unless he first consents to the exercise of jurisdiction of the courts of the state as to causes of action arising out of those acts. Hess v. Pawloski, 274 U.S. 352, 353, 47 S.Ct. 632, 633, 71 L.Ed. 1091, 1093 (1927) (upholding constitutionality of statute similar to Tennessee Non-Resident Motorist Statute). More specifically, a state, by legitimate exercise of its police power, may provide for the legal control over the motor vehicle itself or the non-resident motorist on its highways, in order to promote public convenience and safety on its highways. Hess v. Pawloski, supra. The Tennessee NonResident Motorist Statute is similar to statutes of other states and “does not discriminate against non-resident motorists, but puts them on an equality with residents by making them suable in the State Courts in the same way as residents.” Anderson v. Outland, supra, 360 S.W.2d at 47. The object of Non-Resident Motorist Statutes is to provide a method of notice reasonably calculated to afford parties interested in a judicial proceeding the opportunity to appear and be heard. Massengill v. Campbell, 391 F.2d 233 (5th Cir.1968) (construing Tennessee Non-Resident Motorist Statute).

While the Gwaltneys are correct that the Tennessee NonResident Motorist Statute was promulgated by the Tennessee legislature to benefit ultimately the residents of Tennessee, this does not mean, however, that the statute cannot be used by non-residents. Though not the motivation of the legislature, perhaps, the result assailed here is an unavoidable consequence of its principle desired effect, i.e., in-state alternate service of process upon non-residents. The Gwaltneys could properly have used this statute to obtain substituted service of process upon Mr. Stone if they had filed their civil action (as they could have) in Tennessee. There is no doubt that Mr. Stone was subject to service of process in Tennessee; consequently, his non-residence provides no reasonable basis for a conclusion that the applicable one year statute of limitations in Tennessee could be deemed to have been tolled during that period. See Young v. Hicks, supra; Mangene v. Diamond, 132 F.Supp. 27 (1955), aff'd 229 F.2d 554 (1956) (statute of limitations did not toll during absence of non-resident due to substitute service available through California Non-Resident Motorist Act); Rockmore v. McCullough, 17 Cumb. 168 (Pa.Com.Pl.1967) (Connecticut tolling statute did not apply due to provision in Non-Resident Motorist Statute for substituted service of process upon Commissioner of Motor Vehicles).

The Gwaltneys argue, in the alternative, that insufficient minimum contacts exist with Tennessee to permit the law of Tennessee to control. The Gwaltneys cite Allstate Insurance Co. v. Hague, 449 U.S. 302, 101 S.Ct. 633, 66 L.Ed.2d 521 (1981) and Griffith v. United Air Lines, 416 Pa. 1, 203 A.2d 796 (1964) to support their argument that the concept of significant contacts must be applied, and that an interest analysis is the proper modum for determining a conflicts of law problem. We do not agree.

In Allstate Insurance Co. v. Hague, supra, despite obvious “most significant contacts” with Wisconsin, the United States Supreme Court held that the application of Minnesota insurance law to a cause of action filed in Minnesota but involving a Wisconsin automobile accident between then Wisconsin residents did not violate the full faith and credit clause or the due process requirement of the Fourteenth Amendment. Thus, the most significant contacts test for conflicts of law problems is not constitutionally required.

It is true, as the Gwaltneys note, that in Griffith v. United Air Lines, supra, our Supreme Court abandoned the traditional conflicts rule of strict lex loci delicti and adopted a more flexible rule which permitted analysis of the policies and interests underlying the particular issue before the court. Griffith, however, in no way suggests strict substitution of a “most significant contacts” test for the former rule of lex loci delicti. The Gwaltneys’ claim that Griffith v. United Air Lines, supra, coupled with Allstate Insurance Co. v. Hague, supra, support their proposition that Pennsylvania had the “most significant contacts” with the case sub judice and, therefore, use of Pennsylvania’s borrowing statute to apply the Tennessee statute of limitations to time-bar an action timely commenced within Pennsylvania’s statutory limitations period contravenes constitutional and equitable principles. We find the Gwaltneys’ argument unsupported by the cases cited and unpersuasive.

Borrowing statutes similar to the one adopted in Pennsylvania have been enacted for the following general reasons: (1) to create a uniform system of conflict of laws dealing with statutes of limitations; (2) to prevent forum shopping; (3) to remove the possibility of perpetual liability; and (4) to benefit residents of the enacting state. Comment, supra, 72 Dick.L.Rev. at 607. The primary effect of borrowing statutes is to prevent a plaintiff from gaining more time to bring an action merely by suing in a forum other than the forum where the cause of action accrued. Patch v. Playboy Enterprises, Inc., 652 F.2d 754, 756 (8th Cir.1981); see also Harper v. Gibson, 601 F.Supp. 156 (W.D.Miss.1985). The provisions of Pennsylvania’s borrowing statute unequivocally evince the legislative intent to prevent a plaintiff who sues in Pennsylvania from obtaining greater rights than those available in the state where the cause of action arose. Wilt v. Smack, 147 F.Supp. 700, 704 (E.D.Pa.1957).

Pennsylvania’s borrowing statute provides that for claims accruing outside of Pennsylvania, the period of limitations shall be prescribed by the limitations period of the place where the claim accrued or by the law of Pennsylvania, whichever is shorter. Under Pennsylvania law, a claim accrues when and where the injury is sustained. The accident occurred in Tennessee; hence, the cause of action accrued in Tennessee. Pursuant to the Pennsylvania borrowing statute, the Tennessee one year statute of limitations is the proper limitations period to be applied in the case sub judice. Cf. Patch v. Playboy Enterprises, Inc., supra, (under Missouri borrowing statute, a cause of action which originated in Illinois but brought in Missouri was subject to Illinois one year statute of limitations); Mack Trucks, Inc. v. Bendix-Westinghouse Auto. A.B. Co., supra, (Pennsylvania borrowing statute made Florida law applicable and action was dismissed as barred by Florida statute of limitations); Young v. Hicks, supra, (action brought in Missouri for accident in Tennessee which involved a Pennsylvania defendant was time-barred by Tennessee statute of limitations made applicable through Missouri borrowing statute); Mangene v. Diamond, supra, (Pennsylvania borrowing statute made California statute of limitations applicable, thus action was time-barred); Ros tron v. Marriott Hotels, supra, (Pennsylvania borrowing statute made California limitations law applicable, and action was thus untimely, although it would have been timely if Pennsylvania limitations period had been applied); Giacobbe v. Celotex Corp., 629 F.Supp. 827 (1985) (applicable New York statute of limitations time-barred the cause of action, even though the suit might not have been time-barred under the Pennsylvania discovery rule); see also Wilt v. Smack, supra, (defense of Pennsylvania borrowing statute is available only against action fully barred by law of state in which cause of action arose).

The “most significant contacts” test is a rule of deference for determining which forums’ law should be applied when more than one forum has “sufficient minimum contacts” to permit the exercise of jurisdiction and the applicable laws of the forums differ. Such a choice of laws is not necessary here. Even if Pennsylvania in fact had the most significant contacts, Pennsylvania’s borrowing statute would still require application of Tennessee’s shorter limitations period, based upon Pennsylvania’s determination that the limitations period applicable in Pennsylvania should not exceed that applicable at the situs of the accrual of the cause of action. Nothing in the cases cited, or the state and federal constitution, precludes our legislature from making such a policy choice. Hence, the challenge fails.

In summary, we find that the trial court properly granted Mr. Stone’s motion for judgment on the pleadings. The accident occurred in Tennessee. Hence, the cause of action accrued in Tennessee. The Pennsylvania borrowing statute makes the shorter Tennessee statute of limitations applicable. The Tennessee tolling statute was not applicable because Mr. Stone was amenable to service pursuant to the Tennessee Non-Resident Motorist Statute. The Gwaltneys commenced suit twenty-three months after the accident in Tennessee. The Tennessee one year statute of limitations fully barred the Gwaltneys’ civil action. Therefore, the trial court correctly granted Mr. Stone’s motion for judgment on the pleadings.

Accordingly, we AFFIRM the order of the trial court.

      . We note that Mr. Stone states that his proper name is Vincent Lee Stone, Sr. See Defendant’s Answer with New Matter (filed 1/8/85).

      . Obviously, such substituted service of process was not necessary in Pennsylvania as Mr. Stone was a resident of Blair County, Pennsylvania, the forum in the case sub judice.


author: TAMILIA, Judge:

text:
    564 A.2d 504
    Geraldine Patricia Larkin BRADLEY, Appellant, v. William Stanley BRADLEY, Jr.
    Superior Court of Pennsylvania.
    Argued May 3, 1989.
    Filed Sept. 25, 1989.

      J. Scott O’Keefe, Philadelphia, for appellant.
    William B. Borrebach, Media, for appellee.
    Before CAVANAUGH, TAMILIA and KELLY, JJ.
   TAMILIA, Judge:

Appellant Geraldine Patricia Larkin Bradley appeals an Order entered October 17, 1988 which directed appellee father to pay a sum of $97.50 per week for maintenance of the parties’ two minor children; awarded him credit in the amount of $2,333 on the existing arrearage, representing one-half the total of $4666 amount of mortgage payments he had made during 1988; and directed that he was, as of November 30, 1987, no longer responsible for mortgage payments or for maintaining medical insurance on the children. The Order also found appellee to be in contempt for his failure to comply with the prior court Order, and gave him an opportunity to purge his contempt by paying $50 per week for three weeks immediately following September 29, 1988. The court added that if he met his obligations, appellee could postpone sanctions on the contempt by presenting to the court a record of his job searching efforts. The October 17, 1988 Order was retroactive to November 30, 1987.

The facts surrounding the appeal are that father was obligated by an Order filed November 7, 1984 to make support payments for the children amounting to $115 per week. The master’s recommendation stated that the amount had been arrived at by agreement of the parties. Although the master’s recommendation also stated that father was to pay the mortgage and the children’s medical insurance expenses, the Order did not so provide. In April of 1987, father filed a petition for reduction of support, and in May of 1987, wife filed a petition for an increase of support. A master’s recommendation of support in the amount of $84 per week was approved by the court by a July 8, 1987 temporary Order. Mother filed exceptions to the master’s Order on July 17, 1987, but she later withdrew her exceptions in August of 1987. On August 26, 1987, she instituted contempt proceedings against father and a rule to show cause was issued. A hearing on the contempt petition was held on November 27, 1987 before a master, and the master suggested father’s wages be ordered to be attached. Father, on November 30, 1987, filed a “PETITION FOR APPEAL OF MASTER’S ORDER, SUSPENSION OF MORTGAGE PAYMENTS, AND REVIEW OF TEMPORARY ORDER”. On November 30, 1987, a rule to show cause why the support Order should not be reduced retroactive to the date of filing of the petition and why she should not make mortgage payments was issued against mother. On July 27, 1988, mother filed a contempt petition, and a rule to show cause why he should not be found in contempt was issued against father. A hearing was held on September 29, 1988 on both appellee’s petition for appeal from the master’s Order and the contempt petition. The Order in question was then filed on October 17, 1988. Appellant’s petition for reconsideration and/or rehearing was denied on October 19, 1988, and appellant, on October 25, 1988, filed notice of appeal.

On appeal mother contends, inter alia, that the court erred in reviewing father’s petition for appeal of the master’s Order, suspension of mortgage payments, and review of temporary order at the hearing held on September 29, 1988 because that petition was untimely filed. We note, however, the mother has failed to file a motion to quash, which is the proper procedural approach to deal with this issue.

Our standard of review of child support proceedings is as follows:

[It] is well settled that we cannot disturb a lower court’s order of support absent a clear abuse of discretion or law. Commonwealth ex rel. Hagerty v. Eyster, 286 Pa.Super. 562, 429 A.2d 665 (1981); Commonwealth ex rel. Vona v. Stickley, 287 Pa.Super. 296, 430 A.2d 293 (1981). A finding of such abuse is not lightly made and must rest upon a showing of clear and convincing evidence. The lower court must be upheld on any valid ground. Straub v. Tyahla, 274 Pa.Super. 411, 418 A.2d 472 (1980).

Lyday v. Lyday, 360 Pa.Super. 16, 23, 519 A.2d 967, 971 (1986) (quoting Shindel v. Leedom, 350 Pa.Super. 274, 279, 504 A.2d 353, 355-56 (1986)). Although father’s petition was captioned, “PETITION FOR APPEAL OF MASTER’S ORDER, SUSPENSION OF MORTGAGE PAYMENTS, AND REVIEW OF TEMPORARY ORDER,” the substance of the petition clearly sought modification of the existing support Order based upon changed circumstances. The petition provides:

1. That your Petitioner is William Stanley Bradley, Jr., the Respondent is Geraldine Patricia Larkin Bradley.
2. That there is presently outstanding an Order of Court in the amount of $84.00 per week for the support and maintenance of two children together with an order that Petitioner herein pay the mortgage. The mortgage amount is presently $640.00 payable to Bryn Mawr Trust.
3. That Your Petitioner believes and therefore avers that by reason of a change of circumstances in that he now is employed as a regular employee at Carr Electric, and by reason of the fact that the Respondent now has additional income, that the Support Order in the above captioned matter should be reduced and that the obligation to pay on the mortgage be abandoned and suspended.
4. That your Petitioner believes and therefore avers that the temporary order presently outstanding is consifcatory [sic] and prejudicial to his monetary condition.
5. That your Petitioner believes and therefore avers that the support order should be reduced and the mortgage payment obligation vacated.
WHEREFORE, your Petitioner prays your Honorable Court to grant a Rule upon the Respondent, to show cause, if any she has, why the Support Order in the above captioned should not be reduced retroactive to the filing date of the Petition and why the mortgage payment obligation existing unto the Petitioner should not be vacated of record.

(Petition, 11/30/87.)

While mother’s argument concerning the timeliness of exceptions would appear at first impression to be well taken, upon further examination, we are inclined to find the trial court committed no clear abuse of discretion in treating the petition as one for modification and in dealing with it directly rather than sending it to a master, and we therefore reject this contention. As such, it is not a petition of appeal from the master’s report pursuant to Pa.R.C.P. 1910.11, but rather a proceeding to modify a support Order pursuant to Pa.R.C.P. 1910.19.

Next, mother asserts that the court erred in modifying the support Order because father failed to demonstrate a material and substantial change of circumstances since entry of the 1984 Order. The general rule is “a Court may only modify an existing support award when the party requesting the modification shows a material and substantial change in circumstances since the Order was entered.” Commonwealth ex rel. Vona v. Stickley, 287 Pa.Super. 296, 299, 430 A.2d 293, 295 (1981). Because the court treated the petition filed on November 30, 1987 as a petition for modification, we must review the court’s findings in regard to changed circumstances since that time. Further, since both the 1984 and 1987 Orders were made without testimony, the court was not limited to considering only changed circumstances, but could be justified in examining the entire situation de novo. See Palmatier v. MacCartney, 365 Pa.Super. 300, 529 A.2d 518 (1987).

At the September 29, 1988 hearing, father testified he worked for himself until July or August of 1987 under three companies he created from which to do his electrician work. Because the businesses became unfeasible, he started to work as an electrician for Carr Electric at a rate of $15 per hour. He further testified that in late 1987 he had been arrested for driving under the influence and that his employment with Carr had been severed in January of 1988 because of the status of his driver’s license. He leaves unexplained why he was terminated in January, when he was not convicted of the charge until June of 1988 and he did not lose his license until September of 1988. Appellee also testified that since leaving Carr, he had been unable to take a steady job because his fifteen weekends jail sentence interfered with his ability to work shifts. He explained he had been working side jobs and had earned $600 in August of 1988, including $75 for work done at the VFW. Mother testified that in July of 1987 she had worked part time and was paid on an hourly basis, but she had later become full time and was paid $300 per week. In view of this evidence, we find no abuse of discretion on the part of the court in determining father had met his burden of proof, as to changed circumstances. We further reject as without merit mother’s contention that the court erred in determining appellee’s second driving under the influence conviction constituted a change of circumstances since the court made no such finding.

Appellant next urges that the court abused its discretion in not ordering appellee to be responsible for making mortgage payments or maintaining medical insurance for the children. As father points out, however, the original Order of November 7, 1984 did not approve the master’s recommendation that father make mortgage payments. We note that the July 8, 1987 temporary Order also did not Order payment of the mortgage or medical insurance. While mother contends the October 17, 1988 Order and the trial court Opinion are inconsistent in that the former states that father is, as of November 30, 1987, no longer responsible for making mortgage payments or maintaining medical insurance on the children, whereas the latter explains that the court has not changed father’s responsibility to make “future payments,” we find no need to address this seeming inconsistency since father was not obligated by any court Order to make such payments.

Next, in deciding whether the court erred in granting father credit against arrearages for part of the sum he had paid toward the mortgage, we find no abuse of discretion. The trial court made the following determination based upon the testimony.

I find the nets for her and the guidelines and then taking into consideration the actual situation between these two individuals, we find that the needs of these two children total $150 a week. We find the potential of the father to be $500 a week and the actual of the mother to be $300 a week. Their obligation to support these children under the law is equal as modified by the ratio between their earnings. We find the father’s share to be sixty-five percent and the mother’s share to be thirty-five percent. That means he pays $97.50, she pays $52.50.

(T.T., 9/29/88, p. 68.)

At the hearing before the trial court, mother did not dispute that during 1988 father had made $4,666 in mortgage payments on the home where she and the children lived. As noted above, father was not under Order of court to do so. Thus, it was within the court’s discretion to credit father’s arrearages with one-half of the mortgage payments he had made during 1988. The trial court Opinion explains that it awarded father the credit in the interest of fairness, and because the October 17, 1988 Order, retroactive to November 30, 1987, placed father further in arrears. It must be pointed out that the manner of dealing with the arrears in this case does not contravene the law, as recently amended by Act 1988-35, effective 3/25/88, which fixes the amounts due, pursuant to support Orders, as “judgments by operation of law”, 23 Pa.C.S. § 4352(c) Arrears as judgments. The law does not prevent giving credit for amounts actually paid toward the support obligation, even though not recorded in the domestic relations record. A closer question involves the rescission of arrears back to the date of the filing of the petition for modification (November 30, 1987). Also, pursuant to the recent amendment, 23 Pa.C.S. § 4352(d) Retroactive modification of arrears, arrears no longer may be rescinded, vacated or reduced except where a petition for modification has been filed, and only to the date of that petition. Section 4352(d) provides:

No court shall modify or remit any support obligation, on or after the date it is due, except with respect to any period during which there is pending a petition for modification. If a petition for modification was filed, modification may be applied to the period beginning on the date that notice of such petition was given, either directly or through the appropriate agent, to the obligee or, where the obligee was the petitioner, to the obligor. (Emphasis added.)

It appears without question that the trial court complied with this provision.

Last, mother contends the court erred in failing to find father’s flagrant defiance of the court Orders in this matter precluded him from the relief he sought. In support of her argument, mother cites Commonwealth ex rel. Goodwin v. Goodwin, 413 Pa. 551, 198 A.2d 503 (1964), and Common wealth ex rel. Beemer v. Beemer, 200 Pa.Super. 103, 188 A.2d 475 (1962). These cases are inapposite to her position, since they deal with quashing of an appeal where the appellant has been in flagrant defiance of a court Order. Finding no clear abuse of discretion on the part of the trial court, we affirm the Order in question.

Order affirmed.

KELLY, J., concurs in the result.

      . We take note of the fact that the record does not indicate the trial court complied with the mandate of Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), which requires the court to follow specific guidelines in ascertaining the amount of a support Order. However, neither party raised this issue on appeal and since there appears not to be a grossly disproportionate allocation of responsibility in relation to the parties’ respective financial position, we are not compelled to reverse the trial court’s disposition. Also, we have found that the Melzer formula is most useful in complex cases, which is not the situation here. Commonwealth ex rel. Loring v. Loring, 339 Pa.Super. 92, 488 A.2d 324 (1985) (footnote 2).


author: BROSKY, Judge.

text:
    564 A.2d 508
    Patrick J. McGONIGLE and Marlene McGonigle, Appellants, v. William W. CURRENCE and Pamela Currence.
    Superior Court of Pennsylvania.
    Argued May 16, 1989.
    Filed Sept. 28, 1989.

      John P. Goodrich, Pittsburgh, for appellants.
    Ray F. Middleman, Pittsburgh, for appellees.
    Before BROSKY, POPOVICH and MONTGOMERY, JJ.
   BROSKY, Judge.

Patrick J. McGonigle and Marlene McGonigle take the present appeal from an Order dismissing their de novo appeal from the award of arbitrators because the McGonigles and their counsel failed to appear at the arbitration hearing on the former’s suit against William W. Currence and Pamela Currence, appellees herein.

On appeal, the McGonigles argue that the rules of civil procedure do not require a litigant to appear at an arbitration hearing as a condition of his right to file an appeal de novo from the award of arbitrators and that the trial court cannot, at its own discretion, dismiss an appeal for such failure to appear. Because no legal authority exists for the trial court’s dismissal of the McMonigles’ de novo appeal, we reverse and remand for reinstatement of the said appeal.

Section 7361 of the Uniform Arbitration Act (“the Act”), 42 Pa.C.S.A. §§ 7301 et seq., provides for compulsory arbitration and states in pertinent part:

(a) General Rule. — Except as provided in subsection (b), when prescribed by general rule or rule of court [sic] such civil matters or issues therein as shall be specified by rule shall first be submitted to and heard by a board [of arbitrators].
* $ * * * *
(d) Appeal for trial de novo. — Any party to a matter shall have the right to appeal for trial de novo in the court. The party who takes the appeal shall pay such amount or proportion of fees and costs and shall comply with such other procedures as shall be prescribed by general rules.

The trial court in its Opinion rationalized that the non-appearance of the McGonigles and their counsel at the arbitration hearing waived the former’s right to appeal the arbitration award because their failure to appear constituted an implied acquiescence in the award. Appellees, the Currences, similarly argue that the requirement of Section 7361(a) of the Act that the matter be submitted to and heard by a board of arbitrators was not fulfilled here because the language contemplates a decision based upon the merits after hearing, rather than one rendered ex parte by default of non-appearance, as a prerequisite to appealing. As further support for their position, the Currences point to Section 7361(d) of the Act, supra, which contains, inter alia, a provision that one who takes an appeal from the arbitrators’ award “shall comply with such other procedures as shall be prescribed by general rules." They interpret the “such other procedures" language as requiring submission to and hearing by the Board followed by a decision rendered on the merits as a condition precedent to the taking of an appeal. Since the McGonigles failed to appear, the matter could not be submitted to, heard and then decided on the merits by the arbitrators, thus obviating their right to perfect a de novo appeal. The Currences further contend that Pa.R.C.P. 1303(b) does not discuss the issue at hand, i.e., whether the McGonigles may appeal the arbitrators’ award despite their non-appearance at the hearing, but only empowers the Board to enter an award when a party fails to appear at the hearing.

For their respective yet related positions, both the trial court and the Currences cite Hall v. Reeb, 136 P.L.J. 299 (1988) (Hall I). In Hall I, the plaintiffs deliberately failed to appear at an arbitration hearing after their case had been transferred from the general trial docket to the arbitration docket pursuant to local rule of the Allegheny County Court of Common Pleas for compulsory arbitration. Plaintiffs had opposed the transfer to the arbitration docket and had offered no excuse for their non-appearance before the Board of Arbitrators. The trial court thereupon quashed the appeal taken from the arbitrators’ award. In their motion to reconsider the Order quashing their appeal, the plaintiffs admitted that they had deliberately circumvented the compulsory arbitration process in order to obtain a jury trial and that the use of such tactic was widespread in Allegheny County.

The predicate for the Hall I court’s decision to quash the appeal from the award of the arbitrators was “[t]he act of deliberate refusal to first submit [this] case to a Board of Arbitrators before submitting it to a judge and/or jury____” At 301 (emphasis added). Because the plaintiffs’ conduct was deliberate and admittedly designed to frustrate the compulsory arbitration process, the Court treated the provision of Section 7361(a) of the Act requiring that the matter first be submitted to and heard by a board of arbitrators as a condition precedent to taking an appeal from that determination. “The conscious disregard of a legislative doctrine to ‘first submit’ the case to a Board of Arbitrators should equally constitute a waiver of a subsequent judge or jury trial.” Id.

The McGonigles distinguish the application of Hall I to their case. In their Motion for reconsideration, they offer as an excuse for their non-attendance at the arbitration hearing a clerical omission by personnel in the office of their counsel in failing to note the appointed time of the arbitration hearing. The McGonigles also claim that they offered to pay the costs and expenses of the Currences’ counsel in attending the arbitration hearing but that the reimbursement was refused. While the Currences do not expressly disclaim these allegations, they do not contest them, either. Therefore, we believe that the McGonigles are correct in asserting that Hall I has no application insofar as that their failure to appear did not constitute a deliberate act designed to circumvent the compulsory arbitration process as contemplated by the Act and the Rules of Civil Procedure implementing it. However, we do not rest our decision upon this basis, for the McGonigles’ reason for their non-appearance at the arbitration hearing, or whether, in fact, they even had one, is irrelevant to the ultimate disposition of this case.

The expeditious disposition of pending litigation is the overall objective of compulsory arbitration. It appears that a litigant’s non-appearance at the arbitration proceeding poses an obvious dilemma for a trial court vested with the responsibility of achieving that objective. When a litigant fails to appear for whatever reason, the goal of the arbitration process is defeated. Here, in reliance on Hall I, supra, the trial court attempted to resolve the dilemma by quashing the appeal from the arbitrators’ determination on the basis that the McGonigles’ non-appearance waived that right.

Recently, a panel of this Court reversed the Order quashing the appeal in Hall I, supra. See 382 Pa.Super. 452, 555 A.2d 926 (1989) (Hall II). The panel reasoned that since the Halls had complied with all necessary steps in perfecting their appeal pursuant to Pa.R.C.P. 1308, the trial court erred in quashing the de novo appeal. Upon review of the instant record, and in the absence of any argument to the contrary, we find a similar compliance by the McGonigles. Therefore, the trial court erred when it quashed the McGonigles’ properly perfected appeal for a trial de novo from the award of the board of arbitrators.

This holding also defeats the argument of the Currences that the Pa.R.C.P. 1303(b) has no application to the facts at bar and that the McGonigles were incorrect in relying upon the explanatory note following the Rule. This court specifically relied upon Pa.R.C.P. 1303(b) and the accompanying note in reaching its determination that the Halls had the right to appeal the decision of the arbitrators despite their non-appearance at the arbitration hearing. Pennsylvania Rule of Civil Procedure 1303(b) provides in pertinent part, “[I]f one party is ready and the other is not [sic] the case shall proceed [sic] and the arbitrators shall make an award____” The note following the text of the Rule explains that “[t]he remedy for dissatisfaction with the award is to appeal.” See Hall II, supra. Neither the Rule, itself, nor its accompanying note condition a party’s right to appeal the award upon his appearance at the arbitration hearing. While an explanatory comment to a Rule is not binding, it may be utilized as an aid in interpreting the meaning of the Rule. Macioce v. Glinatsis, 361 Pa.Super. 222, 522 A.2d 94 (1987). Especially is this so where, as here, the explanation given in the note is consistent with the language of the Rule, itself.

We are mindful that at the time of the entry of the Order quashing the de novo appeal, the trial court and the parties were without the benefit of our decision in Hall II, supra, However, even absent such guidance, a fair reading of the statute and the Rules of Procedure governing the compulsory arbitration process compels the same result.

Looking first at the applicable statute, we see that Section 7361(d), supra, sets forth in clear and unambiguous terms that “[a]ny party to a matter shall have the right to appeal for a trial de novo in the court____” Nothing in this section conditions a party’s right to appeal the arbitration award upon his presence at the hearing. See also Weber v. Lynch, 473 Pa. 599, 375 A.2d 1278 (1977) (almost identical language in Compulsory Arbitration Act of 1836 construed as not denying a party who has not appeared at arbitration hearing the right to appeal that determination) and Sipe v. Pennsylvania R.R. Co., 219 Pa. 210, 68 A. 705 (1908) (same). Subsection (a) provides that a matter subject to compulsory arbitration “shall first be submitted to and heard by a board of [arbitrators].” The Currences argue, in effect, that the language just quoted implies the requirement of presence of the parties in order for the matter to be submitted to and heard by the arbitrators. Therefore, since the McGonigles did not appear, the matter was not submitted to and, consequently, was not heard by the board.

As noted earlier, Pennsylvania Rule of Civil Procedure 1303(b) addresses this problem. See discussion of Rule at 6-7. The note following this Rule explains that if a plaintiff fails to appear at the hearing, the arbitrators shall enter an award. This is precisely what occurred here. The McGonigles did not appear at the hearing, and, pursuant to Pa.R.C.P. 1303(b), the arbitrators entered an “Award for Defendants, Plaintiff [sic] not appearing.” Record, Award of Arbitrators.

Consistent with our holding in Hall II, supra, the law, in its present posture, does not carve out an exception barring a party from exercising his right to de novo review despite his non-appearance at the arbitration hearing so long as the appealing party complies with all the necessary steps in perfecting the appeal. Irrespective of the reason therefor, a party’s non-appearance, under the current state of the law, does not imply acquiescence in or waive his right to perfect an appeal de novo from the award of arbitrators. Instantly, the McGonigles have manifested such compliance, and their non-appearance at the arbitration hearing, for whatever reason, did not imply their acquiescence in or waive their right to perfect a de novo appeal from the arbitrators’ award. Consequently, it was error for the trial court to quash their appeal.

Reversed and remanded for reinstatement of the appeal de novo. Jurisdiction relinquished.

MONTGOMERY, J., concurs in the result.

      . The McGonigles also complain on appeal that the trial court erroneously disallowed them to amend their Complaint to include a claim under the Unfair Trade Practices and Consumer Protection Law pursuant to Pa.R.C.P. 1033. However, the McGonigles have not included this proposed amended complaint as part of the certified record. Therefore, this issue is not properly before us. See Pa.R. App.P. 302(a).

      . However, Hall II was filed two months before oral argument on this matter and was available through the Office of the Prothonotary of this court. The decision also appeared in the “advance sheets” of the Atlantic Reporter, Second Series, (including the Pennsylvania Reporter edition of that series) prior to May 16, 1989, the date on which the matter sub judice was argued before this court. See 555 A.2d No. 2 (Pamphlet No. 20), May 5, 1989, at 926.