author: WIEAND, Judge:

text:
    513 A.2d 403
    Jane SVETZ, Trustee Ad Litem for Ignatius SVETZ, Deceased v. LAND TOOL COMPANY and Royal Distributors, Inc. t/a Royal Auto Supply v. V.J.L., INC. t/a Orchard View Inn and John Yorck. Appeal of LAND TOOL COMPANY.
    Superior Court of Pennsylvania.
    Argued March 12, 1986.
    Filed July 24, 1986.

      Gerald J. Cohen, Philadelphia, for appellant.

      James C. Haggerty, Philadelphia, for Yorck, appellee.
    Before WICKERSHAM, WIEAND and POPOVICH, JJ.
   WIEAND, Judge:

May a defendant who has been sued on theories of negligence and strict liability for damages allegedly caused by a defective product join as additional defendants those persons whose acts of negligence are alleged by him to be the sole or contributing causes of the plaintiffs injuries? The trial court held that such joinder was improper and granted the additional defendants’ motions for summary judgment with prejudice. We reverse.

Ignatius Svetz, while operating a motorcycle in a west-wardly direction on Route 422 in Montgomery County on June 5, 1980, lost control of his vehicle, fell, and struck his head on the pavement. The impact caused the helmet which he was wearing to split, and Svetz sustained head injuries which caused his death. His trustee ad litem, Jane Svetz, filed wrongful death and survival actions against Land Tool Company, the manufacturer of the helmet, and against Royal Auto Supply, the retailer. The complaint set forth, in separate counts, causes of action sounding in (1) negligence and (2) strict liability. Land Tool Company, the manufacturer, joined as additional defendants (1) V.J.L., Inc., t/a Orchard View Inn, where the decedent, prior to the accident, had allegedly consumed alcoholic beverages while visibly intoxicated, and (2) John Yorck, with whom the decedent allegedly had been racing at the time when the decedent lost control of his motorcycle. Because of independent acts of negligence, it was alleged in the defendant’s complaint, the additional defendants were alone liable to the plaintiff, or jointly liable with Land Tool Company on the cause of action alleged by the plaintiff, or liable over to Land Tool Company on such cause of action. Subsequently, both additional defendants filed motions for summary judgment. They argued that in a case of strict liability for a defective product, a defendant manufacturer is barred from joining an additional defendant whose liability, if any, is premised upon negligence. The trial court accepted this argument and, by separate orders, granted the motions for summary judgment and dismissed “all claims” against the additional defendants “with prejudice.”

The right to join one or more additional defendants is granted by Pa.R.C.P. 2252(a) in the following language:

(a) In any action the defendant or any additional defendant may, as the joining party, join as an additional defendant any person whether or not a party to the action who may be alone liable or liable over to him on the cause of action declared upon by the plaintiff or jointly or severally liable thereon with him, or who may be liable to the joining party on any cause of action which he may have against the joined party arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiff’s cause of action is based, (emphasis added).

This rule permits the joinder of an additional defendant when any one of the following four bases of liability has been alleged: (1) that the additional defendant is solely liable to the plaintiff; (2) that the additional defendant is liable over to the joining party on the cause of action alleged; (3) that the additional defendant is jointly or severally liable with the joining party on the cause of action alleged by the plaintiff; or (4) that the additional defendant is liable to the joining party on any cause of action asserted by the joining party which arises out of the same transaction or occurrence or series of transactions or occurrences upon which the plaintiff’s cause of action is based. The rule permitting the joinder of additional defendants is to be broadly construed to effectuate its purpose of avoiding multiple lawsuits “by settling in one action all claims arising out of the transaction or occurrence which gave rise to the plaintiff’s complaint.” Township of Upper Makefield v. Benjamin Franklin Federal Savings & Loan Association, 271 Pa.Super. 399, 402, 413 A.2d 726, 728 (1979). See: Incollingo v. Ewing, 444 Pa. 263, 289-291, 282 A.2d 206, 220-221 (1971); American Metal Fabricators Co. v. Goldman, 227 Pa.Super. 284, 287, 323 A.2d 891, 893 (1974).

In the instant ease, the appellant-manufacturer asserted three separate bases for joining appellees as additional defendants: (1) that appellees were alone liable to the plaintiff; (2) that appellees were jointly or severally liable with appellant, i.e., for contribution; and (3) that appellees were liable over to the appellant-manufacturer by way of indemnification. The only substantive limitation placed upon the right to join an additional defendant on any of these grounds is that liability must be premised upon the same cause of action alleged by the plaintiff in his or her complaint. Pa.R.C.P. 2252(a). See: Township of Upper Makefield v. Benjamin Franklin Federal Savings & Loan Association, supra 271 Pa.Super. at 402-403, 413 A.2d at 728; Harker v. Farmers Trust Co., 248 Pa.Super. 427, 430, 375 A.2d 171, 173 (1977).

“Cause of action” has been defined as
[t]he fact or facts which give a person a right to judicial relief. The legal effect of an occurrence. A situation or state of facts which would entitle party to sustain action and give him right to seek a judicial remedy in his behalf.

Black’s Law Dictionary (5th ed. 1979). The words “cause of action” as used in the rule must be construed “to mean ‘damages or injuries.’ ” Staub v. Southwest Butler County School District, 263 Pa.Super. 413, 421, 398 A.2d 204, 207 (1979), aff'd, 489 Pa. 196, 413 A.2d 1082 (1980). See: 8 Goodrich-Amram 2d § 2252(a):6. In construing the rule, a

number of principles are to be kept in mind. Generally applicable to all the rules of civil procedure is Rule 126 which provides that “[t]he rules shall be liberally constructed [sic] to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable.” Such an approach is particularly pertinent where multiple parties are involved since in such cases the primary intent of the rules is to avoid multiplicity of suits by providing for the adjudication of all the rights and liabilities of those present and concerned in a single suit. Martinelli v. Mulloy, 223 Pa.Super. 130, 299 A.2d 19 (1972). This Court has favored the policy of broadly interpreting Rule 2252 “not only to compel every interested person to defend the action by the plaintiff, but also to save the original defendant from possible harm resulting from loss of evidence as might result if compelled to await the end of the suit before proceeding against those from whom he seeks contribution.” Marti-nelli v. Mulloy, supra, 223 Pa.Superior Ct. at 135, 299 A.2d 21.

Ragan v. Steen, 229 Pa.Super. 515, 525-526, 331 A.2d 724, 730 (1974).

The cause of action alleged by the plaintiff in the case sub judice was for damages resulting from the death of her decedent when the motorcycle being operated by the decedent went out of control and crashed. The plaintiffs complaint averred that a defective helmet had been a substantial factor in causing death. The appellant-manufacturer denied that the helmet had been defective and alleged that the decedent’s loss of control, and hence his death, had been caused by the decedent’s engaging in a race, while intoxicated, with another motorcyclist. Therefore, appellant joined as additional defendants the tavern keeper who, allegedly, had served alcoholic beverages to the decedent while the decedent was visibly intoxicated and the motorcyclist who had engaged in a race with the decedent. Because the additional defendants’ alleged liabilities arose from the same cause of action sued upon by the plaintiff, i.e., for the fatal injuries sustained by the decedent as a result of the motorcycle accident, joinder of appellees as additional defendants was expressly allowed by Pa.R.C.P. 2252(a). It may well be that for this reason alone joinder can be sustained in this case. The trial court’s opinion, however, cites additional reasons for dismissing the joinder of appel-lees as additional defendants; and, therefore, we proceed to a consideration of those issues.

It will be recalled that the trial court held joinder improper because plaintiff’s claim against the appellant-manufacturer was based on principles of strict liability; whereas, the appellant-manufacturer’s claim for contribution from the additional defendants was based on negligence. However, the trial court overlooked the fact that plaintiff’s cause of action against the appellant-manufacturer, as pleaded in separate counts of her complaint, was based on two theories, not one. The first count contained averments that the manufacturer had been guilty of negligence in designing and manufacturing the helmet worn by the decedent. Only the second count was based on principles of strict liability. In view of the averments of the first count of the complaint, joinder of additional defendants on theories of joint negligence was clearly proper. There was no reason for refusing to allow in one and the same action a claim by the defendant that the negligence of the additional defendants had contributed causally to the death of plaintiff’s decedent.

The trial court’s suggestion that a defendant who is liable under principles of strict liability is not entitled to seek contribution from one whose negligence combines to cause harm, moreover, is not consistent with the law in this Commonwealth. The Uniform Contribution Among Tort-feasors Act in Pennsylvania provides that a joint tortfeasor who has discharged more than his pro rata share of a common liability may seek contribution from any other tortfeasor who contributed to the loss. See: 42 Pa.C.S. § 8324(b). The doctrine of contribution is based on equity. Therefore, the Act must be examined with equity in mind. Mong v. Hershberger, 200 Pa.Super. 68, 72, 186 A.2d 427, 429 (1962). See: Comment, Another Look at Strict Liability: The Effect on Contribution Among Tortfeasors, 79 Dick.L.Rev. 125, 130 (1974). See also: Panichella v. Penn sylvania Railroad Co., 167 F.Supp. 345 (W.D.Pa.1958), rev’d on other grounds, 268 F.2d 72 (3d Cir.1959), cert. denied, 361 U.S. 932, 80 S.Ct. 370, 4 L.Ed.2d 353 (1960); Massachusetts Bonding & Insurance Co. v. Car & General Insurance Corp., 152 F.Supp. 477 (E.D.Pa.1957); Swartz v. Sunderland, 403 Pa. 222, 169 A.2d 289 (1961); Brown v. Dickey, 397 Pa. 454, 155 A.2d 836 (1959); Mellon Estate, 347 Pa. 520, 32 A.2d 749 (1943); Stark v. Posh Construction Co., 192 Pa.Super. 409, 162 A.2d 9 (1960); Fisher v. Diehl, 156 Pa.Super. 476, 40 A.2d 912 (1945).

The focus of the Uniform Act is on the relationship existing between tortfeasors rather than the manner in which several tortfeasors have been held liable to an injured claimant. Comment, supra at 130. In Puller v. Puller, 380 Pa. 219, 221, 110 A.2d 175, 177 (1955), the Supreme Court observed that “contribution is not a recovery for the tort [committed against the plaintiff,] but the enforcement of an equitable duty to share liability for the wrong done.” Accord: Coniaris v. Vail Associates, Inc., 196 Colo. 392, 586 P.2d 224 (1978) (claim for contribution is separate and distinct from underlying tort; the rights and obligations of the defendants flow not from the tort, but from the judgment or settlement itself). Thus, a tortfeasor’s right to receive contribution from a joint tortfeasor derives not from his liability to the claimant but rather from the equitable principle that once the joint liability of several tortfeasors has been determined, it would be unfair to impose the financial burden of the plaintiff’s loss on one tortfeasor to the exclusion of the other. It matters not on which theory a tortfeasor has been held responsible for the tort committed against the plaintiff. So long as the party seeking contribution has paid in excess of his or her share of liability, it would be inequitable under the Act to deny that party’s right to contribution from a second tortfeasor who also contributed to the plaintiff’s injury.

This equitable consideration is confirmed expressly by the language of the Uniform Act. “Joint tortfeasors” are defined as “two or more persons jointly or severally liable in tort for the same injury to persons or proper-ty____” 42 Pa.C.S. § 8322. The statutory language does not limit the right of contribution to tortfeasors who have been guilty of negligence. Contribution is available whenever two or more persons are jointly or severally liable in tort, irrespective of the theory by which tort liability is imposed. See: Smith v. Kolcraft Products, Inc., 107 F.R.D. 767, 770 (M.D.Pa.1985) (interpreting Pennsylvania law). We hold, therefore, that defendants who are liable under principles of strict liability and defendants who are liable because of negligence may be joint tortfeasors. See: Rabatin v. Columbus Lines, Inc., 790 F.2d 22, 25 (3d Cir.1986) (concluding that, under Pennsylvania law, strictly liable and negligent defendants may be joint tortfeasors); Chamberlain v. Carborundum Co., 485 F.2d 31, 34 (3d Cir.1973) (same). See also: Capone v. Donovan, 332 Pa.Super. 185, 189, 480 A.2d 1249, 1251 (1984); Pratt v. Stein, 298 Pa.Super. 92, 150, 444 A.2d 674, 704-705 (1982); Voyles v. Corwin, 295 Pa.Super. 126, 130, 441 A.2d 381, 383 (1982); Lasprogata v. Qualls, 263 Pa.Super. 174, 179 n. 4, 397 A.2d 803, 805 n. 4 (1979).

It follows of necessity that where strictly liable and negligent defendants have acted as joint tortfeasors, contribution among them can properly be awarded. Although this precise issue has not previously been considered by the appellate courts of this Commonwealth, a majority of those courts which have considered the issue have reached the same result. At least two common pleas courts have considered the same issue and have found a right of contribution among negligent and strictly liable defendants. See: Capuano v. Echo Bicycle Co., 27 D. & C.3d 524 (Northampton Cty.1982); Stewart v. Uniroyal, Inc., 72 D. & C.2d 206 (Allegheny Cty.1975), aff'd mem., 238 Pa.Super. 726, 356 A.2d 821 (1976). A substantial majority of those federal courts interpreting Pennsylvania law have also applied the Uniform Act to defendants held liable under theories of negligence and strict liability. See, e.g., Rabatin v. Columbus Lines, Inc., supra; Chamberlain v. Carborundum Co., supra; Smith v. Kolcraft Products, Inc., supra; W.D. Rubright Co. v. International Harvester Co., 358 F.Supp. 1388 (W.D.Pa.1973); Walters v. Hiab Hydraulics, Inc., 356 F.Supp. 1000 (W.D.Pa.1973). Of the twenty other states which have adopted a version of the Uniform Contribution Among Tortfeasors Act, the courts of eight have held that a common theory of recovery (e.g., all defendants liable to plaintiff for negligence or all defendants strictly liable) is not a prerequisite to contribution. See: Clark v. Brooks, 377 A.2d 365 (Del.Super.1977), aff'd sub nom., Blackshear v. Clark, 391 A.2d 747 (Del.1978); Wallace v. Strassel, 479 So.2d 231 (Fla.Dist.Ct.App.1985); Wolfe v. Ford Motor Co., 386 Mass. 95, 434 N.E.2d 1008 (1982); Farmers Insurance Exchange v. Village of Hewitt, 274 Minn. 246, 143 N.W.2d 230 (1966); White v. McKenzie Electric Cooperative, Inc., 225 F.Supp. 940 (D.N.D.1964) (applying North Dakota law); Cartel Capital Corp. v. Fireco of New Jersey, 81 N.J. 548, 410 A.2d 674 (1980); Sanchez v. City of Española, 94 N.M. 676, 615 P.2d 993 (Ct.App.1980), rev’d on other grounds sub nom., Aalco Manufacturing Co. v. City of Espanola, 95 N.M. 66, 618 P.2d 1230 (1980); City of Kingsport v. SCM Corp., 429 F.Supp. 96 (E.D.Tenn.1976) (applying Tennessee law). Three of these courts have held specifically that contribution between a strict liability defendant and a negligent co-defendant is proper and permissible. See: Wolfe v. Ford Motor Co., supra (finding right of contribution between negligent defendant and defendant held liable under warranty theory, which Massachusetts equates with strict liability); Cartel Capital Corp. v. Fireco of New Jersey, supra; Sanchez v. City of Espanola, supra. The same result has also been reached in at least five jurisdictions which have not adopted the Uniform Act. See: Safeway Stores, Inc. v. Nest-Kart, 21 Cal.3d 322, 579 P.2d 441, 146 Cal.Rptr. 550 (1978); Skinner v. Reed-Prentice Division Package Machinery Co., 70 Ill.2d 1, 15 Ill.Dec. 829, 374 N.E.2d 437 (1977), cert. denied, 436 U.S. 946, 98 S.Ct. 2849, 56 L.Ed.2d 787 (1978); Bristol-Myers Co. v. Gonzales, 548 S.W.2d 416 (Tex.Civ.Ct.App.1976), rev’d on other grounds, 561 S.W.2d 801 (Tex.1978); Northwestern Mutual Insurance Co. v. Stromme, 4 Wash.App. 85, 479 P.2d 554 (1971); Ladwig v. Ermanco, Inc., 504 F.Supp. 1229 (E.D.Wis.1981) (applying Wisconsin law). Today, we join those courts which have permitted contribution among tortfeasors who are strictly liable and tortfeasors who are liable for negligence. Not only do these decisions represent the trend in modern legal thought, but they also reflect the better view.

This result is not in conflict with policy considerations which support strict liability for defective products. Strict liability was intended to benefit injured consumers. See: Azzarello v. Black Brothers Co., 480 Pa. 547, 553, 391 A.2d 1020, 1023-1024 (1978); Miller v. Preitz, 422 Pa. 383, 419-420, 221 A.2d 320, 338 (1966) (Roberts, J., concurring and dissenting). It was designed to enhance the consumer-plaintiff’s chances of recovery by eliminating the burden of proving the manufacturer’s negligence. See: Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 93, 337 A.2d 893, 898 (1975). Strict liability was based upon a policy determination that, as between an innocent consumer and a manufacturer of a defective product, the manufacturer should bear the loss. See: Miller v. Preitz, supra 422 Pa. at 410, 221 A.2d at 334 (Jones, J., concurring and dissenting). The focus of strict liability, therefore, must be upon the relationship existing between the plaintiff-consumer and the defendant-manufacturer. Berkebile v. Brantly Helicopter Corp., supra 462 Pa. at 93, 337 A.2d at 898. The focus of the Uniform Contribution Among Tortfeasors Act, on the other hand, is upon the relationship between tortfeasors after a determination has been made that they are jointly liable for the plaintiffs injury. Thus, it is only after plaintiffs loss has been assessed against joint tortfeasors and the policy goals of strict liability have been satisfied that the Act achieves significance. It then seeks to achieve an equitable apportionment of that loss among all tort-feasors who have contributed to the loss. By permitting a tortfeasor found strictly liable to recover contribution from a negligent joint tortfeasor we merely effectuate the Uniform Act’s goal of achieving equity between tortfeasors without subverting policies of strict liability.

In addition to the claim for contribution, the complaint filed by the appellant-manufacturer against the appellee-ad-ditional defendants in this case contained an averment that the additional defendants were liable over to appellant for indemnification. This indemnity claim was also dismissed by the trial court. Although, as we have indicated, it was error to deny the appellant-manufacturer’s right to seek contribution, we conclude that dismissal of appellant’s claim for indemnification was proper.

“Indemnity, a common-law equitable remedy, shifts the entire loss from one defendant to another.” Burch v. Sears, Roebuck and Co., 320 Pa.Super. 444, 456, 467 A.2d 615, 622 (1983). It is “ ‘recognized in cases where community opinion would consider that in justice the responsibility should rest upon one [defendant] rather than the other.’ ” Id., 320 Pa.Superior Ct. at 457, 467 A.2d at 622, quoting W. Prosser, Law of Torts 313 (4th ed. 1971). In general, indemnity is available to those who are secondarily or vicariously liable from those who are primarily liable. Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368 (1951).

In the instant case, the averments of appellant’s complaint do not establish a legally recognizable claim for indemnity against the additional defendants. Appellant has been unable to demonstrate error in the trial court’s dismissal of the general averment that the additional defendants were liable over to the appellant-manufacturer. This portion of the trial court’s orders, therefore, will be affirmed.

For the reasons hereinbefore set forth, the portion of the orders of the trial court granting summary judgment on appellant’s claim for indemnification is affirmed. The orders dismissing the joinder of additional defendants on grounds that they are solely liable to the plaintiff or jointly and severally liable with appellant are reversed. The case is remanded for further proceedings in accordance with the foregoing opinion. Jurisdiction is not retained.

      . Since 1969, when Pa.R.C.P. 2252(a) was amended, joinder may also be based upon the independent ground that the additional defendant is liable to the defendant upon a separate cause of action which arises out of the occurrences upon which the plaintiff’s cause of action is based. See: 8 Goodrich-Amram 2d § 2252(a):5. In the instant case, however, the appellant-manufacturer did not allege that the additional defendants were liable to the appellant-manufacturer upon a separate cause of action.

      . We here express no opinion regarding the effect of the Comparative Negligence Act, 42 Pa.C.S. § 7102, upon the award of contribution between such joint tortfeasors.

      . But see: Bike v. American Motors Corp., 101 F.R.D. 77 (E.D.Pa.1984); Conti v. Ford Motor Co., 578 F.Supp. 1429 (E.D.Pa.1983), rev’d on other grounds, 743 F.2d 195 (3d Cir.1984), cert. denied, 470 U.S. 1028, 105 S.Ct. 1396, 84 L.Ed.2d 784 (1985). The reasoning of these decisions was sharply criticized by the Court of Appeals for the Third Circuit in Rabatin, supra at 24 n. 1.

      . These states include Alaska, Arizona, Arkansas, Colorado, Delaware, Florida, Hawaii, Maryland, Massachusetts, Mississippi, Nevada, New Jersey, New Mexico, North Carolina, North Dakota, Ohio, Rhode Island, South Dakota, Tennessee and Wyoming. Arizona has amended its version of the Act to apply expressly to tortfeasors held liable under a theory of strict liability. See: Ariz.Rev.Stat.Ann. § 12-2509 (Supp.1984).


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    513 A.2d 410
    COMMONWEALTH of Pennsylvania v. Joseph Ronald BERRY, Appellant.
    Superior Court of Pennsylvania.
    Argued May 20, 1986.
    Filed July 25, 1986.

      Harry B. Goldberg, Harrisburg, for appellant.
    Yvonne A. Okonieski, Assistant District Attorney, Harrisburg, for Com., appellee.
    Before CIRILLO, President Judge, and TAMILIA and HESTER, JJ.
   HESTER, Judge:

This appeal is from judgment of sentence for convictions of rape, indecent assault and corruption of minors. Appellant, Joseph Ronald Berry, was sentenced cumulatively to three to six years imprisonment. Post-verdict motions were denied.

The charges arose from appellant’s assaults of February 9, 1983, and February 16, 1983, upon his fifteen-year-old stepdaughter. On both occasions, it was alleged appellant forced her to submit to sexual intercourse.

Appellant raises the following issues. 1) Whether the evidence was sufficient to sustain the verdict? 2) Whether the verdict was contrary to the evidence? 3) Whether the trial court erred in permitting the Commonwealth to amend the informations? 4) Whether appellant was prejudiced by the delay in arrest? 5) Whether the trial court erred in refusing to read all of appellant’s submitted points for charge? 6) Whether the trial court erred in permitting the victim’s mother to remain in the courtroom despite an order for sequestration of all witnesses? 7) Whether the trial court erred in denying appellant the opportunity to cross-examine the victim concerning her dating relationship with a man? 8) Whether the trial court erred in overruling appellant’s objections to alleged hearsay evidence? 9) Whether the trial court erred in ignoring a task force pre-sentence report and in imposing consecutive sentences? 10) Whether the trial court erred in not conducting an evidentiary hearing on certain pre-trial issues?

We will address all issues, with the exception of the last which we summarily dismiss. The following discussion leads us to affirm.

First, appellant argues that the evidence was insufficient to sustain the verdict and that the verdict was contrary to the evidence. A reviewing court shall review all evidence and inferences therefrom in favor of the verdict winner. Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984). In this light, we hold that the evidence was sufficient to sustain the verdict.

The victim testified that on February 9, 1983, she was packing in her room for a camping trip. Her mother was at work, her sister was in her room and appellant was in the master bedroom. The victim was conversing with appellant across the hall and moved to his bedroom when it became difficult to hear. As the victim was sitting on the edge of the bed, appellant approached her, rubbed her neck and pushed her on her back when she attempted to pull away. He then disrobed and raped her. The victim did not protest because she feared appellant would strike her; she knew that appellant frequently struck her sister for disciplinary reasons.

One week later, the victim was watching television when appellant approached her again. As appellant began to rub her back, the victim tried to avert his advances. Again, appellant pushed her down and raped her. The victim’s mother and sister were not at home.

Appellant complains that the victim waited sixteen months to report the alleged rapes and did so only in retaliation for appellant having beaten her sister. There was evidence that the victim was reluctant to report the rapes because she feared appellant’s revenge and the disruption of the household. The victim testified that her mother desperately wanted appellant to be part of the family. Consequently, the victim wanted to wait until she left the household at age eighteen before reporting the rapes. However, when the family was breaking up as appellant continually alienated the victim’s mother and sister, the victim came forward. The altercation between appellant and the victim’s sister did not cause the victim to fabricate criminal charges; the altercation was the culmination of years of bickering and it convinced the victim to report the rapes.

According to appellant, the verdicts were also unsubstantiated because there was no evidence of force, injury or corruption. There was sufficient evidence of force as the victim testified that appellant pushed her down on both occasions and restrained her. Rape does not require injury; it is sufficient if appellant engages in sexual intercourse with the victim by threat of forcible compulsion which prevents her resistance. 18 Pa.C.S. § 3121; See Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986), wherein the Pennsylvania Supreme Court held that forcible compulsion is not limited to physical force or violence; it includes moral, psychological and intellectual force. Injury is similarly not required for corruption of minors; corrupting the morals of a minor in itself constitutes the crime. 18 Pa.C.S. § 6301. Finally, sexual intercourse with a minor is considered corruption of morals.

Appellant alleges several incongruities in the evidence and asserts that the victim’s testimony lacked corroboration from her teacher and physician. For instance, appellant questions the verdict because the victim did not complain or scream and did not know whether she was bleeding. As alluded to earlier, a rape victim may be too frightened to resist. Similarly, whether or not the victim was bleeding is not determinative of rape.

The absence of corroboration is not unusual in rape cases. Generally, the victim’s testimony alone constitutes the Commonwealth’s case, and the jury may rely solely on the victim’s account in passing judgment. See Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979).

Next, appellant argues that the trial court erred in permitting the Commonwealth to amend the informations. Appellant was originally charged with two counts of rape occurring respectively on February 9, 1983, and February 16, 1983, one count of indecent assault occurring on February 16, 1983, and corruption of minors occurring at divers times. The court permitted the Commonwealth to amend the information by adding a count of indecent assault stemming from the February 9, 1983 incident and by clarifying that the corruption of minors offenses occurred on February 9 and 16, 1983.

Appellant complains that the amendments did not involve a mere change of dates; rather, they allegedly added two separate charges for February 9, 1983. Also, he complains that the amendment of corruption from “diverse” acts to specific instances of corruption was prejudicial. Since these amendments occurred at trial, appellant asserts that he was not prepared to defend an additional indecent assault count and two specific acts of corruption.

Pennsylvania Rule of Criminal Procedure 229 allows the amendment of an information “when there is a defect in form, the description of the offense, the description of any person or any property, or the date charged, provided the information as amended does not charge an additional or different offense.”

In Commonwealth v. Stanley, 265 Pa.Super. 194, 212, 401 A.2d 1166, 1175 (1979), we set forth the test for determining if an amendment is permissible under Rule 229.

The purpose of Rule 229 is'to insure that a defendant is fully appraised (sic) of the charges against him, and to avoid prejudice by prohibiting the last minute addition of alleged criminal acts of which the defendant is uninformed. In effecting this purpose, the courts of the Commonwealth employ the test of whether the crimes specified in the original indictment or information involve the same basic elements and evolved out of the same factual situation as the crimes specified in the amended indictment or information. If so, then the defendant is deemed to have been placed on notice regarding his alleged criminal conduct.

(Citations and footnotes omitted.)

The indecent assault and corruption of minor charges concerned the same incidents on February 9 and 16, 1986, as the rapes. By adding a count of indecent assault for the February 9 incident, the Commonwealth neither prejudiced nor suprised appellant. The additional charge of indecent assault did not introduce new facts, and did not affect appellant’s alibi defense. See Commonwealth v. King, 287 Pa.Super. 105, 429 A.2d 1121 (1981). His defense to indecent assault also applied to rape.

Appellant incorrectly states that the original charge of corruption of minors charged “diverse” acts. The original charge was for corruption of minors occurring on “divers” dates. When the Commonwealth determined that the corruption and rape charges concerned the same conduct on February 9 and 16, it was able to specify the dates for corruption of minors. For these reasons, we find no error by the trial court in amending the information.

Appellant’s third argument is that the trial court erred in denying his motion to dismiss the charges due to the delay in instituting proceedings. According to appellant, the delay of sixteen months in filing charges impaired his alibi defense and denied him the opportunity to have the victim examined medically.

To support a claim that pre-arrest delay violated his due process rights, appellant must show both that he was substantially prejudiced and that the prosecution’s reasons for the delay were improper. Commonwealth v. Murphy, 305 Pa.Super. 246, 451 A.2d 514 (1982). Assuming arguendo that the delay weakened appellant’s alibi defense because he could not remember his whereabouts at the time of the incidents, he does not prove that the delay was a Commonwealth ploy for a tactical advantage. The delay was attributed solely to the victim’s reluctance to report the incidents because she did not want to anger appellant and disrupt her family. Once she had reported the incidents, investigation and arrest promptly followed.

Appellant next assigns error to the court’s refusal to read all of his points for charge. The court denied appellant’s points for charge concerning the missing witness rule and the victim’s credibility. Appellant asserts that a charge on the missing witness rule was critical due to the fact that the victim’s examining physician and religion teacher were not subpoenaed. The physician could have verified penetration. The religion teacher was allegedly important because she could corroborate the victim’s testimony that she cried while reading a passage on incest from her religion book. Appellant infers from their absence that they would have offered unfavorable testimony for the prosecution. As a result, he asserts that he was entitled to a charge on the missing witness rule.

When a potential witness who is not called is available to only one of the parties and can provide important testimony which is not merely cumulative, the jury may infer that that witness’ testimony would have been unfavorable to the controlling party. Commonwealth v. Jones, 455 Pa. 488, 317 A.2d 233 (1974); Commonwealth v. Stafford, 307 Pa.Super. 278, 453 A.2d 351 (1982). In Commonwealth v. Harley, 275 Pa.Super. 407, 418 A.2d 1354 (1980), we enumerated several significant exceptions to the missing witness rule. The most pertinent involves testimony which is unimportant, cumulative or inferior to that already presented.

The physician and teacher could offer cumulative testimony only. Since the medical examination was conducted sixteen months following the rape, the physician was unable to detect bleeding, bruising, tearing or other evidence of force. He could verify sexual intercourse only, but the passage of time prevented a reliable link between intercourse and rape. Similarly, the teacher could not offer information different from that provided by the victim. At most, she could testify that she observed the victim become upset as she read about incest. This was not sufficient testimony to justify the missing witness rule.

An instruction on the victim’s credibility was properly denied. The court’s general instruction on credibility of witnesses adequately addressed the credibility of the victim; there was no need to address the victim’s credibility separately.

It is appellant’s next contention that the court erred in permitting the victim’s mother to remain in the courtroom during the victim’s testimony despite a sequestration order. According to appellant, it was not necessary to have the mother present as the victim was receiving emotional support from rape counselors. Moreover, the mother’s presence was allegedly damaging because her later testimony may have merely echoed her daughter’s testimony.

A sequestration order is designed to preclude prospective witnesses from conforming their testimony to that of witnesses preceding them; witnesses shall attest entirely to their own observations and perceptions. Commonwealth v. Fant, 480 Pa. 586, 391 A.2d 1040 (1978). Where, however, there is minimal risk that subsequent witnesses will merely echo preceding witnesses, the court may allow those witnesses to remain, with good cause, despite a sequestration order. See Commonwealth v. Martin, 479 Pa. 609, 388 A.2d 1361 (1978).

The victim’s mother, Mary Jo Berry, testified as to her children’s relationship with appellant and the altercation her other daughter had with him which prompted the victim to report the rapes. She corroborated the victim’s testimony on collateral issues, but she could not testify concerning the actual crimes as she was not home. Therefore, the mother’s testimony was unlikely to echo that of her daughter, for in the main, they testified about different topics and events.

Furthermore, Mary Jo could provide more support for her daughter than the counselors could. The victim and her mother had a relationship of mutual respect and love, presumably greater than the victim had with the counselors. For these reasons, we find no error in not sequestering the victim’s mother.

Next, appellant argues that the court erred in denying his request to cross-examine the victim concerning her dating relationship in 1984 with a man in his early twenties. Appellant states that in Commonwealth v. Black, 337 Pa. Super. 548, 487 A.2d 396 (1985), we relaxed the rape shield law by holding that a rape victim may be cross-examined on sexual conduct to impeach or to show bias, interest or prejudice.

In Black, we permitted cross-examination of the prosecu-trix for the purpose of revealing her sexual relationship with her fifteen-year-old brother. The defendant was the prosecutrix’s father, and the alleged rape was reported three months later when the defendant and the prosecu-trix’s brother argued violently, causing the brother to leave home. We permitted evidence on the sibling relationship which might show that the prosecutrix wanted 1) to punish the defendant for terminating that relationship and 2) to remove him from the home so that her brother could return.

Appellant’s proposed cross-examination of the victim does not fall within the parameters of Black. Appellant claims that the victim’s dating relationship, which might have involved sexual intercourse, would have undermined her trial testimony that she had been ignorant and naive about sexual matters. Although Black permits evidence of prior sexual conduct to show a “specific bias” or “hostility” toward the defendant or to show the alleged victim’s desire for retribution, we carefully noted that such evidence was inadmissible if its inflammatory nature outweighed its probative value. That is at least the case here, particularly since the victim’s dating relationship occurred in 1984, one year following the sexual assaults. We hold, therefore, that the trial court did not err in denying cross-examination on a subsequent relationship.

Appellant argues that the court erred in overruling his objections to certain testimony. Appellant objected on hearsay grounds to the victim’s testimony concerning a passage from her religion book stating that generally parents do not believe children on reports of rape. Secondly, appellant objected to Mary Jo Berry’s testimony that her daughter would not lie.

The statement from the religion book was not offered for the truth of the matter asserted; whether or not parents believe their child’s report of rape was not the Commonwealth’s concern. The statement was offered only to explain the victim’s delay in reporting the incident.

Appellant’s specific objection to the mother’s testimony was that it concerned the victim’s reputation for veracity. This was allegedly improper because it did not relate to the general reputation of the victim in her community. It is true that the credibility of a rape victim is measured according to the same standard applied to any other crime victim. The reputation witness must attest to the victim’s general reputation in the community; he may not attest to the victim’s specific behavior. In Interest of Lawrence J., 310 Pa.Super. 351, 456 A.2d 647 (1983).

After testifying about the altercation between appellant and the victim’s sister, which led the victim to report the rape to her mother, Mary Jo Berry further testified: “And I just looked at her and I — I said tell me it’s not true. And she said it is. And I just had to put my arms around her. I had no reason to doubt her, none. My daughter wouldn’t lie about something like this.” N.T. February 15, 1985, at p. 135. Appellant immediately objected on grounds that the statement was conclusory, and the court overruled the objection. Appellant now argues that the court erred in overruling the objection because the testimony improperly referred to the victim’s veracity. We cannot determine how the court would have ruled had appellant asserted that the statement was improper reputation evidence; appellant objected to the statement because of its conclusory nature only. Where the objection challenges a specific evidentiary matter, all other grounds for excluding the evidence are waived. Commonwealth v. Williams, 476 Pa. 557, 383 A.2d 503 (1978).

Finally, appellant challenges the sentences on grounds that the court did not give sufficient weight to a task force report and that consecutive sentences for rape were inappropriate. The court did consider the task force report prepared by Alternative Sentencing of Pennsylvania, and letters from two clergymen, appellant’s employers and Goodwill Industries. It also considered the remarks of nine witnesses who testified favorably at sentencing as to appellant’s behavior, responsibility, temperament and general reputation. The court acknowledged that appellant

was an excellent citizen of our community. He has been a hard worker, has maintained two jobs for years, was honorably discharged from the United States Navy. We note as well that he is 49 years of age, [and] is physically handicapped____

N.T., August 21, 1985, at 40. Before pronouncing sentence, the court noted that appellant has demonstrated that “he is unlikely to commit another crime.” Despite acknowledging these favorable factors, the court noted that the victim had been a young adolescent who was placed in appellant’s care and trust. The court was alarmed that appellant had taken advantage of his supervisory position on two occasions.

In review of the court’s articulated reasons for sentence, we cannot hold that it abused its discretion in imposing a sentence for confinement of two to four years for one rape to be followed by one to two years for the other rape.

Judgment of sentence affirmed.

      . Appellant’s argument that the trial court erred in failing to conduct an evidentiary hearing on the reasons for the delay in instituting charges and the actual dates and counts of the charges was adequately addressed by the trial court.


text:
    513 A.2d 417
    Stephen W. MALIZIA and Desiree D. Malizia, his wife, Appellants, v. Daniel F. BECKLEY and Rebecca Beckley, his wife, and Paul Levi and Carol Levi, t/d/b/a Action Real Estate.
    Superior Court of Pennsylvania.
    Argued May 22, 1986.
    Filed July 25, 1986.

      Michael F. Salisbury, Lock Haven, for appellants.
    Charles J. Weyandt, State College, for appellees.
    Before CIRILLO, President Judge, and TAMILIA and HESTER, JJ.
   HESTER, Judge:

This is an appeal from an order striking a default judgment on the ground that appellants’ ten-day notice of default judgment pursuant to Pa.R.C.P. 237.1 was not signed by appellants or their attorney. We reject the rationale that absence of a signature could have led the recipients of the notice to believe it was sent by “an interloper in the proceedings,” and thus to doubt its authenticity. We reverse.

Appellants commenced this action by filing a complaint against appellees and others alleging material misrepresentations in the sale of a residence to appellants, seeking damages and rescission of the conveyance. The complaint, together with a notice to defend, was served on all defendants, including appellees. Due to appellees’ failure to respond, two months after service of the complaint appellants’ counsel sent by certified mail a ten-day notice of default judgment to appellees as required by Pa.R.C.P. 237.1. Appellants subsequently filed a praecipe for default judgment, which was entered, and notice of the judgment was mailed to appellees. Almost a month afterward, appellees filed a petition to open or strike the default judgment, alleging, inter alia, that the notice of default judgment was not signed as required by Pa.R.C.P. 237.1.

The trial court, in a hearing conducted on October 24, 1985, considered only the issue of the signature on the notice of default judgment. The court held that absence of a signature was a fatal defect on the face of the record which required that the judgment be stricken. Its reasoning was that “there’s no indication that it’s authentic or legitimate,” and it might have been mailed by “an interloper in the proceedings.” N.T., October 24, 1985, at 6, 7.

The allegedly defective notice of default judgment was identical in all respects to the form of notice set forth in Rule 237.1(c) except for the final portion of the form, as to which the rule specifies:

(Signature of Plaintiff or Attorney)
(Address)

Pa.R.C.P. 237.1(c). This portion of appellant’s notice read as follows, in typewritten form:

Michael F. Salisbury, Esquire ROSAMILIA, O’CONNOR & SALISBURY 241 West Main Street Lock Haven, Pennsylvania 17745

The question is whether the foregoing authentication complies with the rule, which requires the notice to be “substantially” in the form printed therein.

Black’s Law Dictionary, Rev. 4th ed. (1968), defines “substantially” as “essentially; without material qualification; in the main; in substance; materially.” We hold that the notice in question is “substantially” in the form required by Rule 237.1. The explanatory note which accompanied the rule upon its adoption in 1979 provides some guidance. As to its purpose, the rules committee stated:

The increasing number of petitions being filed in the common pleas courts throughout the Commonwealth to open default judgments and the ensuing appeals have become a matter of concern to the courts.
One part of the problem arises from the entry of “snap judgments” without notice, a practice sharply disapproved by the Superior Court, and the lack of notice is frequently singled out as an important factor justifying the opening of a default judgment.
Subdivision (c) of the Rule prescribes the form of notice when a default judgment is to be entered. It is adapted from the notice to defend which Rule 1018.1 requires on every complaint. It informs the defendant of the need for action, the consequences of default and where he can obtain a lawyer. Since the notice will in many cases be sent to an as yet unrepresented defendant, it was felt that repetition of the notice to defend, in modified form, would help stimulate action and stem the tide of petitions to open.

Pa.R.C.P. 237.1, Explanatory Comment, 1979. In keeping with the stated purpose, we believe the form of notice mailed by appellant was entirely as effective as one signed by hand.

The word “signature” is defined by Black’s Law Dictionary, supra, as follows:

The act of putting down a man’s name at the end of an instrument to attest its validity, the name thus written. A “signature” may be written by hand, printed, stamped, typewritten, engraved, photographed, or cut from one instrument and attached to another, and a signature lithographed on an instrument by a party is sufficient for the purpose of signing it; it being immaterial with what kind of instrument a signature is made---- And whatever mark, symbol, or device one may choose to employ as representative of himself is sufficient.

(citations omitted). It is clear that the identification on appellant’s notice conforms with the foregoing definition of “signature.”

We note, as well, that the Commercial Code, 13 Pa.C.S., defines the word “signed” similarly. It “[ijncludes any symbol executed or adopted by a party with present intention to authenticate a writing.” 13 Pa.C.S. § 1201. The 1972 Uniform Commercial Code Comment to the definition elaborates:

89. “Signed.” New. The inclusion of authentication in the definition of “signed” is to make clear that as the term is used in this Act a complete signature is not necessary. Authentication may be printed, stamped or written; it may be by initials or by thumbprint. It may be on any part of the document and in appropriate cases may be found in a billhead of letterhead. No catalog of possible authentications can be complete and the court must use common sense and commercial experience in passing upon these matters. The question always is whether the symbol was executed or adopted by the party with present intention to authenticate the writing.

The inclusive concept expressed in the Commercial Code definition is significant for it relates to the statute of frauds requirement that a contract be “signed by the party against whom enforcement is sought.” 13 Pa.C.S. § 2201(a).

Finally, it is clear that in this case, the form of signature adopted by appellant’s counsel did not operate to confuse appellees or to raise in their minds specters of interlopers in the proceedings. Their petition to open judgment, in paragraphs twelve through sixteen, avers that they regarded the notice as being legitimate and official, but were unable to obtain counsel in time to avoid the default judgment. The averments of paragraph seventeen likewise belie any semblance of confusion due to the typewritten signature.

We therefore hold that the typewritten signature was in substantially the form required by Rule 237.1(c), and was not a proper basis to strike the judgment.

Appellees’ petition attacking the default judgment set forth several other bases to strike or open the judgment which were not addressed by the trial court after the court struck the judgment for lack of a handwritten signature. We remand the case for consideration of appellees’ remaining arguments, some or all of which may merit striking or opening the judgment.

Order reversed and case remanded for further proceedings. Jurisdiction relinquished.

      . The court adopted the transcript of the October 24, 1985, proceedings as the statement of reasons for its rulings as required by Pa.R. A.P. 1925(a).


author:
BROSKY, Judge:
      JOHNSON, Judge,

text:
    513 A.2d 419
    George Thomas STODDARD, Appellant v. Robert J. DAVIDSON.
    Superior Court of Pennsylvania.
    Submitted Jan. 17, 1986.
    Filed July 25, 1986.

      Edward E. Kopko, Assistant District Attorney, Pottsville, for appellant.
    John B. Lieberman, III, Mahanoy City, for appellee.
    Before BROSKY, JOHNSON and LIPEZ, JJ.
   BROSKY, Judge:

This appeal is from an order sustaining preliminary objections in the nature of a demurrer and dismissing appellant’s complaint. The causes of action thus dismissed were for intentional and negligent infliction of emotional distress. We hold that the dismissal of the negligent infliction claim was in error and, accordingly, reverse as to that portion of the order and affirm as to the dismissal of the intentional infliction claim.

Facts

From the complaint it appears that on January 15, 1984 at approximately 2:30 a.m. appellant was driving in a rural area when his automobile rode over the corpse of Sharon Wascavage which was lying in the middle of his lane of the highway. Appellant was detained at the scene by the police for approximately three and one half hours.

Appellant avers that appellee had struck Sharon Wasca-vage with his vehicle while she was walking on the highway, route 209. Appellant further avers that after appellee had hit Ms. Wascavage, appellee intentionally left the scene of the accident, not making any attempt to remove the body from the road. As a result, appellant later ran over the corpse and was detained by the police. Appellant claims that as a result he suffered severe emotional distress, which is the basis of his complaint. Appellant contends that the preliminary objections in the nature of a demurrer should not have been sustained by the trial court.

Analysis

A claim for infliction of emotional distress can be made in two ways. One method is showing that the defendant, through his negligence, was the proximate cause of the emotional injury to the plaintiff. The second method is by showing that the defendant acted intentionally or recklessly to cause the emotional injury to the plaintiff.

Negligent Infliction

Appellee argues that appellant is unable to maintain a cause of action based upon a theory of negligent infliction of emotional distress. He relies on Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979) in which relief was allowed for a person “outside the zone of danger.” In that particular case the plaintiff was (1) a close family member, (2) located near the scene of the accident, and (3) the shock resulted from direct emotional impact from observing the accident. We agree with appellee’s observation but not his conclusion. Appellant’s case does not fit within the narrow confines of Sinn; however, we do not conclude that as a consequence of this that appellant is foreclosed from pursuing at trial an action for negligent infliction of emotional distress.

Sinn v. Burd involved a situation where the plaintiff was not within the zone of danger. In that case a mother sued on the basis of emotional distress that resulted from witnessing her daughter being run down by the defendant’s vehicle. Subject to the three above-mentioned elements being satisfied, the Supreme Court allowed recovery.

Sinn was an exception to the rule laid down in Nieder-man v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970). Originally, a party had to allege a physical impact in order to properly aver a claim for negligent infliction. The Nieder-man Supreme Court said:

We today choose to abandon the requirement of a physical impact as a precondition to recovery for damages proximately caused by the tort in only those cases like the one before us where the plaintiff was in personal danger of physical impact because of the direction of a negligent force against him and where plaintiff actually did fear the physical impact. Since appellant’s complaint alleges facts which if proven will establish that the negligent force was aimed at him and put him in personal danger of physical impact, and that he actually did fear the force, this case must proceed to trial.

Niederman, supra, 436 Pa. at 413, 261 A.2d at 90.

It is this evolution of the law of which appellee has lost sight. To summarize, a cause of action for negligent infliction of emotional distress initially required a physical impact. That element was declared not essential in Nieder-man if the plaintiff was in the zone of danger. Finally, the plaintiffs presence within that zone was held to be not necessary subject to the presence of Sinn's three elements. Niederman and Sinn are, thus, two alternate methods to establish a case for negligent infliction in the absence of physical impact. However, impact remains the basic means to plead the cause of action. Potere v. City of Philadelphia, 380 Pa. 581, 589, 112 A.2d 100, 104 (1955). If impact is averred, the requirements of either Niederman or Sinn simply are not necessary.

In the case before us there was a physical impact. Appellant’s automobile impacted with the corpse of Sharon Wascavage. Although it is a gruesome thought, an automobile running over a corpse would cause the automobile to lurch and jostle or jar its occupants. This Court has held that the jostling and jarring of an automobile’s occupants is enough physical impact to meet the physical impact element of a negligent infliction cause of action. Zelinsky v. Chimics, 196 Pa.Super. 312, 175 A.2d 351 (1961). It is this impact which takes the instant case out of the requirements of Sinn or Niederman. Therefore, plaintiff need not rely upon the doctrine laid down in Sinn or upon the rule in Niederman, nor need he meet the elements of Sinn or Niederman.

In Zelinsky two vehicles — plaintiff’s and defendant’s— struck each other and thus the physical impact was substantially contemporaneous with the defendant’s negligent act and resulted in the defendant striking the plaintiff. This will be the usual fact pattern; it is not, however, the only possible scenario. It is also possible that defendant’s negligence will proximately cause an impact to occur at a later time and that the impact will not be with the defendant himself. Under traditional rules of negligence law this would also support a cause of action in negligence. This result is not changed by the fact that the particular claim is for infliction of emotional distress through negligence, rather than another type of negligence claim.

In Potere, supra, the city negligently maintained a water line which leaked water into an underground tunnel dug by a contractor which caused subsidence and a cave-in of the road while plaintiff was driving a truck on it. One of plaintiff’s claims was for negligent infliction of emotional distress. In Potere as here, the impact was not directly with the defendant, nor did it occur simultaneously with the negligent act. However, as long as the plaintiff’s suffering or mental fright is “directly traceable to the peril in which the defendant’s negligence placed the plaintiff, then mental suffering is a legitimate element of damages.” Potere v. City of Philadelphia, supra, 380 Pa. at 589, 112 A.2d at 104.

The order dismissing the negligent infliction of emotional distress complaint is, accordingly, reversed.

Intentional Infliction

Appellee contends that appellant’s intentional infliction complaint was properly dismissed because appellee’s “extreme and outrageous conduct was not directed toward George Thomas Stoddard [appellant] but rather to the now deceased pedestrian, Sharon Wascavage.” While that assertion is true, it would not, of itself, result in appellee prevailing. The pertinent law is Section 46(2) of the Restatement (Second of Torts).

§ 46. Outrageous Conduct Causing Severe Emotional Distress.
(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress
(a) to a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm, or
(b) to any other person who is present at the time, if such distress results in bodily harm.

Appellant is not a member of Sharon Wascavage’s family, as compliance with (2)(a) would require; nor was appellant “present at the time” when appellee’s vehicle struck her down and she was left on the road, as compliance with (2)(b) would require. The facts of this case cannot, therefore, be the basis for relief under Restatement § 46. That being so, the trial court correctly dismissed appellant’s complaint for intentional infliction of emotional distress.

The order dismissing the negligent infliction of emotional distress complaint is reversed. The order dismissing the intentional infliction of emotional distress complaint is affirmed. The case is remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

LIPEZ, J., concurs in the result.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting:

Since I believe that the complaint under review on this appeal fails to set forth a viable cause of action in either intentional or negligent infliction of emotional distress, I must dissent.

The material paragraphs of plaintiffs single-count complaint set forth the following:

3. On or about January 15, 1984, at approximately 2:30 a.m., the Plaintiff was proceeding from Hazelton, Luzerne County, Pennsylvania, to Minersville, Schuylkill County, Pennsylvania, on Pennsylvania Route 209 and was proceeding in a southerly direction approximately one mile north of Tuscarora, Schuylkill County, Pennsylvania.
4. At the aforesaid time, Plaintiff was driving a Monte Carlo motor vehicle of which his parents are the owners and Plaintiff was proceeding at a reasonable rate of speed and had his headlights on.
5. At the aforesaid date and time, the Plaintiff suddenly, and without warning, came upon the corpse of Sharon Wascavage, which corpse was situate in the middle of the south bound lane of the aforesaid Route 209.
6. At the aforesaid date and time, the Plaintiffs car struck the corpse of the aforesaid Sharon Wascavage.
7. The Plaintiff was detained by Schuylkill Township Police at the scene of the accident for approximately three and one-half hours during which time he was forced to hold a cover over the corpse of the deceased Sharon Wascavage.
8. Plaintiff therefore avers that the Defendant, Robert J. Davidson, had previously struck Sharon Wascavage while she was walking down Route 209 and after striking said Sharon Wascavage intentionally left the scene of the accident and did not make any attempt to remove the body of Sharon Wascavage from Route 209.
9. The conduct of the Defendant in striking another human being with his car and not stopping to inquire as to the injury which resulted therefrom and allowing the deceased body which he struck to lie in the middle of Route 209 goes beyond all possible bounds of decency, and in such, would be regarded as atrocious and utterly intolerable in a civilized community.
10. The acts of the Defendant, as aforesaid, were the direct cause of the Plaintiff striking the corpse.
11. As a result of the acts of the Defendant, the Plaintiff has suffered emotional distress, including grief, shame, humiliation, embarrassment, anger and chagrin to such degree that no reasonable person could be expected to endure the same.
12. The acts of the Defendant were the approximate [sic] cause of the emotional injury to the Plaintiff.

Preliminary objections, limited to a demurrer, were presumably filed by the defendant. Although the preliminary objections are not included in the original record, and are not listed on the certified copy of docket entries as having ever been filed, the order from which this appeal has been brought purports to sustain the objections and dismiss the complaint. I therefore will treat them as being before us for purposes of disposing of this appeal.

The proper review of this case is made difficult in that the defendant set forth three separate grounds for dismissal in his objections: Defendant urged upon the trial court the contentions that the complaint failed to set forth a valid cause of action for (1) negligent infliction of emotional distress; (2) intentional infliction of emotional distress; and (3) mistreatment of the body of a dead person. In filing its order sustaining the demurrer, the trial court stated:

The Court finds that, even taking every averment of the Complaint as admitted for purposes of deciding the demurrer, the Complaint fails to set forth a cause of action against the Defendant on the grounds stated in the demurrer.

The original record includes a handwritten note of “MT” dated 10/28/85 which sets forth, in part, “The judge is using his Order of August 13, 1985 in lieu of a formal opinion.” We thus do not have the benefit of the trial court’s reasoning, nor can we clearly ascertain whether the trial court gave separate consideration to each of the defendant’s asserted grounds for relief.

Plaintiff, in his Brief for Appellant, makes reference to the cause of action, mistreatment of the body of a dead person, id. at 7, which cause is first expressly referred to in the preliminary objections. However, I do not understand the averments of the complaint to adequately raise this claim, nor does Plaintiff seem to seriously urge this point in his brief. I, therefore, conclude that discussion is not necessary on whether the plaintiff now before us can recover under this theory. See Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970) (allowing recovery for emotional distress resulting from the mishandling of a body of a deceased relative).

Turning then to the remaining issues, my review of the averments in the complaint, as clarified by the Brief for Appellant, leads me to the conclusion that the demurrer was properly sustained as to both intentional and negligent infliction of emotional distress. Plaintiff frames the issue, in his Brief before this Court, in the following manner:

III. STATEMENT OF THE QUESTION
Is a motorist who strikes and kills a pedestrian, and then intentionally leave[s] the scene of the accident without stopping liable for emotional distress caused to a later driver who runs over the corpse lying on the road and thereby suffers emotional distress by virtue of having to stand by the corpse.
IV. SUMMARY OF ARGUMENT
Appellant Stoddard submits that he has a viable cause of action against Appellee Davidson for the intentional or negligent infliction of emotional distress and that to hold as the lower court did that as such cause exists is erroneous.

Brief for Appellant at 2. (emphasis added).

The supreme court of this Commonwealth has set forth the guidelines which we are to follow in reviewing an order which sustains preliminary objections in the nature of a demurrer and dismisses a complaint. The court stated that:

It is axiomatic in the law of pleading that preliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material, factual averments and all inferences fairly deducible therefrom. Yania v. Bignan, 397 Pa. 316, 155 A.2d 343 (1959); Byers v. Ward, 368 Pa. 416, 84 A.2d 307 (1951). Conclusions of law and unjustified inferences are not admitted by the pleading. Lerman v. Rudolph, 413 Pa. 555, 198 A.2d 532 (1964). Starting from this point of reference the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought. If such is the case, the demurrer may not be sustained. On the other hand, where the complaint fails to set forth a cause of action, a preliminary objection in the nature of a demurrer is properly sustained.

Sinn v. Burd, 486 Pa. 146, 149-50, 404 A.2d 672, 673-74 (1979).

In reviewing the averments of fact in the complaint set forth above, it appears that plaintiff was proceeding, at 2:30 A.M., along state Route 209 at a reasonable rate of speed with his headlights on. He “came upon” the corpse lying in the middle of his lane of travel. His car struck the corpse. He was thereafter detained by the township police for a period of 3V2 hours during which time he was forced, by the police, to hold a cover over the corpse.

The defendant had previously struck a female walking along Route 209 and intentionally left the scene of the accident. The defendant made no attempt to remove from the roadway the body of the person struck by his vehicle. The Complaint does not allege whether Sharon Wascavage was merely injured, or dead, at the time the defendant drove away from the accident scene.

The complaint goes on, in paragraphs 10 through 12 to allege that the defendant’s acts were: (a) the direct cause of plaintiff striking the corpse, (b) resulted in plaintiff suffering emotional distress, and (c) were the proximate cause of plaintiff’s alleged emotional injury. I do not believe the allegations of this complaint set forth a cause of action for negligent infliction of emotional distress.

I am in agreement with Judge Brosky’s summary of the state of the law in Pennsylvania regarding a cause of action for negligent infliction of emotional distress. I disagree with this application of the law to the facts of this case.

The courts of this Commonwealth have not analyzed the concept of negligent infliction of emotional distress in an entirely consistent fashion. The exact elements which need to be alleged in order to set forth the cause of action seem to be subject to change. I do agree with Judge Brosky, however, that originally, the impact rule was the law in Pennsylvania. A plaintiff had to aver a physical impact in order to set forth a claim for negligent infliction of emotional distress. Potere v. City of Philadelphia, 380 Pa. 581, 112 A.2d 100 (1955). Two exceptions to the impact rule were established. In Niederman v. Brosky, 436 Pa. 401, 261 A.2d 84 (1970) the Pennsylvania Supreme Court abandoned the requirement of physical impact where (1) the plaintiff was in personal danger of physical impact because a negligent force was directed against him and (2) the plaintiff actually feared the physical impact. Id., 436 Pa. at 413, 261 A.2d at 90. In Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979) the court found that the plaintiff may be able to recover in the absence of physical impact and when outside the zone of danger. The court looked at whether the injuries sustained by plaintiff were reasonably foreseeable. The court stated that:

Where the bystander is a mother who witnessed the violent death of her small child and the emotional shock emanated directly from personal observation of the event, we hold as a matter of law that the mental distress and its effects is a foreseeable injury.

Id., 486 Pa. at 173, 404 A.2d at 686 (footnote omitted).

Judge Brosky finds that the case before us does not come within either the Niederman or Sinn exceptions to the impact rule. I agree. My learned colleague then finds that there was, in fact, a physical impact in this case, such that plaintiff can come within the impact rule. I disagree. The impact upon which Judge Brosky relies is the impact of plaintiffs automobile with the corpse of Sharon Wascavage. He considers the resultant jostling of the automobile’s passenger to be a sufficient physical impact, based on the case of Zelinsky v. Chimics, 196 Pa.Super. 312, 175 A.2d 351 (1961). The jostling of passengers which occurred in Zelinsky resulted from the collision between the plaintiff’s automobile and the defendant’s automobile.

The physical impact in the case now before us was not the product of a direct impact between plaintiff’s automobile with defendant’s automobile. The impact was not contemporaneous with defendant’s allegedly negligent act of striking Sharon Wascavage and leaving her corpse in the road. Rather, the impact occurred at a later point in time, when the alleged tortfeasor was no longer at the scene. I believe that in order to characterize the facts of this case as fitting within the traditional impact rule, plaintiff must allege a more contemporaneous impact with the defendant, his automobile, or some force set in motion by him.

The majority relies on Potere as an example of a case in which the impact was not directly with defendant, nor simultaneous with the negligent act. Potere sued the City of Philadelphia for personal injuries which he sustained when a city street collapsed causing the truck Potere was driving to fall into an underground tunnel. The cave-in was caused by the negligence of the city in permitting a waterline leak into the tunnel, and the negligence of the contractor in not taking additional safeguards after being apprised of the subsidence problem. The key difference between Potere and the case now before this Court is that the defendant’s negligence in Potere was continuous and uninterrupted until the time of the accident.

The court in Potere stated that:

where, as here, a plaintiff sustains bodily injuries, even though trivial or minor in character, which are accompanied by fright or mental suffering directly traceable to the peril in which the defendant’s negligence placed the plaintiff, then mental suffering is a legitimate element of damages.

380 Pa. at 589, 112 A.2d at 104. (citations omitted) (emphasis added). Potere’s emotional and physical injuries resulted from the defendant’s ongoing negligence in not repairing the dangerous condition of the street. His injuries were directly traceable to this negligence and not to the acts of a third party. The plaintiff Stoddard on the other hand, characterizes his emotional injuries as resulting from his being forced to stand by the corpse. In this Statement of Question, supra, plaintiff represents that the question with which we are concerned is liability for emotional distress suffered “by virtue of having to stand by the corpse,” supra. According to our appellate rules, ordinarily we are not to consider points which are not set forth in the statement of questions involved or suggested thereby. Pa.R. A.P. 2116. Mindful that emotional injuries resulting from standing by the corpse is the question which plaintiff asks this Court to address, I do not believe that his emotional distress can be characterized as actionable under the impact rule, even considering the Potere precedent.

Plaintiff’s emotional injuries resulted from his holding the cover over the corpse and not from his “impact” with the corpse, or from any impact with defendant or defendant’s automobile. Unlike Potere, I would not find this emotional distress to be directly traceable to the peril in which the defendant’s negligence placed plaintiff.

Accordingly, I dissent from my learned colleague’s conclusion that plaintiff has set forth a cause of action for negligent infliction of emotional distress under the impact rule. I would affirm the trial court order of August 13, 1985 in all respects.

      . The first paragraph of that section provides:
      § 46. Outrageous Conduct Causing Severe Emotional Distress (1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
      While its terms, viewed in isolation, would appear to be met under the facts of this case, they should not be considered here. Since paragraph (2) deals with behavior directed at a party other than the plaintiff, and that is the circumstance here, consideration of paragraph one is preempted, even though facially appropriate.
      Pennsylvania has adopted the Restatement (Second) of Torts, § 46 position. See: Bartanus v. Lis, 332 Pa.Super. 48, 480 A.2d 1178 (1984); Banyas v. Lower Bucks Hospital, 293 Pa.Super. 122, 437 A.2d 1236 (1981); D'Ambrosio v. Pennsylvania National Mutual Casualty Insurance Co., 262 Pa.Super. 331, 396 A.2d 780 (1978).


author: CIRILLO, President Judge:

text:
    513 A.2d 427
    Karin PEKULAR and Frank Pekular, Her Husband, Appellants at No. 866 v. James H. EICH and State Farm Mutual Automobile Insurance Company, Appellant at No. 865.
    Superior Court of Pennsylvania.
    Argued Jan. 28, 1986.
    Filed July 21, 1986.

      Frank M. Gianola, Pittsburgh, for appellants (at 866) and appellees (at 865).
    Kenneth R. Behrend, Pittsburgh, for appellants (at 865) and appellees (at 866).
    Before CIRILLO, President Judge, and DEL SOLE and BECK, JJ.

      . Pa.Stat.Ann.tit. 40 §§ 1151-1162 (Purdon 1971) (repealed 1974).

   CIRILLO, President Judge:

This cross-appeal presents two questions for our determination: (1) whether the enactment of the Unfair Insurance Practices Act (UIPA) bars an insured from pursuing a private cause of action against his insurer based upon a theory of common law fraud and deceit; and (2) whether the enactment of UIPA bars an insured from pursuing a private cause of action against his insurer based on the provisions of the Unfair Trade Practices Consumer Protection Law (CPL).

The insureds, Karin and Frank Pekular, instituted the present action by filing a three-count complaint against James H. Eich and his employer, State Farm Insurance Company. In their complaint, the Pekulars averred that State Farm, through its agent, Mr. Eich, sold Mr. Pekular four policies of automobile insurance. Mr. Pekular was allegedly advised by Mr. Eich that the Pekulars could save money through reduced premiums by electing to make the No-Fault health benefits available under the policies secondary to Blue Cross/Blue Shield or other health benefits. According to the Pekulars, Mr. Eich knowingly and purposefully did not explain that such an election would effectively reduce the total amount of primary health benefits that the Pekulars could claim in the event they were injured in an accident. The Pekulars claimed that they relied upon the “representations” and “inducements” of Mr. Eich that they could “save money” and elected to have the No-Fault benefits designated as secondary coverage. Mrs. Pekular later allegedly suffered serious and permanent injuries while driving a vehicle insured pursuant to one of the State Farm policies. She was subsequently denied payments which would have been forthcoming had the Pekulars not elected to designate the No-Fault benefits as secondary.

Counts I and II of the complaint alleged common law fraud and deceit against Mr. Eich and State Farm respectively and demanded compensatory and punitive damages. Count III alleged violations of Pennsylvania’s Unfair Trade Practices Consumer Protection Law and demanded compensatory damages. The trial court dismissed preliminary objections to counts I and II and sustained preliminary objections as to count III. This Court granted permission to file immediate appeals, and both parties appealed.

In passing upon preliminary objections which are denied by the trial court, a reviewing court is required to accept as true the averments of fact in the complaint. Martino v. Transport Workers Union of Philadelphia Local 234, 301 Pa.Super. 161, 447 A.2d 292 (1982). With respect to preliminary objections which are sustained by the trial court:

In determining whether the lower court properly dismissed the complaint, we must take as true ‘every well pleaded material fact set forth in the pleading ..., as well as the inferences reasonably deducible therefrom.’ Schott v. Westinghouse Electric Corp., 436 Pa. 279, 282, 259 A.2d 443, 445 (1969). Furthermore, we must bear in mind
the rule that preliminary objections should be sustained and a complaint dismissed only in cases which are clear and free from doubt. Legman v. Scranton School District, 432 Pa. 342, 247 A.2d 566 (1968); Todd v. Skelly, 384 Pa. 423, 120 A.2d 906 (1956); Gardner v. Allegheny County, 382 Pa. 88, 114 A.2d 491 (1955). To sustain preliminary objections in the nature of a demurrer, it must appear with certainty that, upon the facts averred, the law will not permit recovery by the plaintiff. Where any doubt exists as to whether or not the preliminary objections should be sustained, that doubt should be resolved by refusing to sustain the objections. Birl v. Philadelphia Electric Co., 402 Pa. 297, 167 A.2d 472 (1960); Sun Ray Drug Co. v. Lawler, 366 Pa. 571, 79 A.2d 262 (1951). Id., 436 Pa. at 291, 259 A.2d at 449.

Harkins v. Zamichieli, 266 Pa.Super. 401, 404-05, 405 A.2d 495, 497 (1979).

I

The UIPA represents a broad and sweeping effort by our Legislature to curb unfair or deceptive practices in the insurance industry. The purpose of the Act is set forth in section 2, which provides:

The purpose of this act is to regulate trade practices in the business of insurance in accordance with the intent of congress as expressed in the act of Congress on March 9, 1945 (Public Law 15, 79th Congress), by defining or providing for the determination of all such practices in this state which constitute unfair methods of competition or unfair or deceptive acts or practices and by prohibiting the trade practices so defined or determined.

Act of July 22, 1974, P.L. 589, 40 P.S. § 1171.2 (Supp.1985) (footnote omitted). Section 4 of the Act provides:

No person shall engage in this state in any trade practice which is defined or determined to be an unfair method of competition or an unfair or deceptive act or practice in the business of insurance pursuant to this act.

40 P.S. 1171.4. Section 5 of the Act, 40 P.S. § 1171.5, in relevant part, defines “unfair methods of competition” and “unfair or deceptive acts” to include:

(1) Making, publishing, issuing or circulating any estimate, illustration, circular, statement, sales presentation, omission comparison which:
(i) Misrepresents the benefits, advantages, conditions or terms of any insurance policy;
(vi) Is a misrepresentation for the purpose of inducing or tending to induce the lapse, forfeiture, exchange, conversion or surrender of any insurance policy;
(10) Any of the following acts if committed or performed with such frequency as to indicate a business practice shall constitute unfair claim settlement or compromise practices.
(i) Misrepresenting pertinent facts or policy or contract provisions relating to coverages at issue.
(12) Making false or fraudulent statements or representations on or relative to an application for an insurance policy, for the purpose of obtaining a fee, commission, money or other benefit from any insurers, agent, broker or individual.

These statutory prohibitions are enforced by the Insurance Commissioner of Pennsylvania, who is empowered to “examine and investigate the affairs of every person in this State” to determine whether the UIPA has been violated. 40 P.S. § 1171.7. If a violation is found the Commissioner may impose sanctions, including a cease and desist order and suspension or revocation of license. 40 P.S. § 1171.9. • The Commissioner may also seek judicial imposition of a civil penalty of up to $5,000.00 for each knowing violation, or $1,000.00 for each unknowing violation. 40 P.S. § 1171.-11.

The Pekulars concede that the acts and practices alleged in their complaint fall within the definitional language of the UIPA. They maintain, however, that the enactment of the UIPA does not bar an insured’s private common law action for fraud and deceit against an insurer. Similarly, the Pekulars argue that the enactment of the UIPA does not bar a private action under the CPL. Eich and State Farm argue that the UIPA provides the sole and exclusive remedy for acts and practices which fall within the definitional language of the Act.

II

We turn first to the question of whether a common law cause of action for fraud is barred due to the enactment of the UIPA. After careful analysis of the UIPA and relevant case law, we conclude that a common law action for fraud and deceit is not barred.

The Statutory Construction Act of 1972 provides:

§ 1929. Penalties no bar to civil remedies
The provision in any statute for a penalty or forfeiture for its violation shall not be construed to deprive an injured person of the right to recover from the offender damages sustained by reason of the violation of such statute.

1 Pa.C.S. § 1929. We read this statute to provide for the continued viability of causes of action cognizable under the common law existing when the UIPA was enacted. A common law cause of action for fraud based upon representations by a vendor which are calculated to deceive has been recognized by the courts of this Commonwealth for over one hundred years. See Croyle v. Moses, 90 Pa. 250 (1879).

Further support for our position is found in Dozor Agency, Inc. v. Rosenberg, 403 Pa. 237, 169 A.2d 771 (1961). In Dozor, our Supreme Court held that the precursor of the UIPA, the Unfair Practices Act of 1947, did not provide the exclusive remedy in cases involving alleged fraudulent conduct on the part of an insurer. In so doing, the Court stated:

We are of the opinion that the Act was never intended to and does not vest exclusive jurisdiction in the Insurance Commissioner in cases such as the present and thus oust the jurisdiction of a Court of Equity which for many years has possessed and exercised jurisdiction in cases arising out of facts on all fours with the instant case. Moreover if there were any doubt on this point it would be removed by Section 10 of the Unfair Practices Act, which provides:
“The powers vested in the commissioner by this act, and the forfeiture provided for violation or an order to cease and desist made pursuant thereto, shall be in addition to any other procedures, penalties, fines or forfeitures authorized by law with respect to the methods, acts, and practices hereby declared to be unfair or deceptive.” 40 P.S. § 1160.
Section 10 preserves all the procedures authorized by law and for this additional reason the Act did not destroy equitable jurisdiction in a case such as this.

Dozor, supra, 403 Pa. at 242, 243, 169 A.2d at 774. (Emphasis in original). We note that 40 P.S. § 1160, quoted by the Court in Dozor, has been substantially reenacted as part of the UIPA. 40 P.S. § 1171.14. The reasoning utilized by the Court in Dozor is equally applicable to the first issue presented in the instant case.

Finally, we find the concurring opinion in D’Ambrosio v. Pennsylvania National Mutual Casualty Insurance Company, 494 Pa. 501, 431 A.2d 966 (1981) to be instructive on this point. In D’Ambrosio, the Supreme Court held that an insurer who allegedly acted unreasonably and in bad faith could only be subject to the sanctions specifically authorized by the UIPA, and refused to recognize a “new tort” which would grant an insured a right of action to recover for emotional distress resulting from his insurer’s bad faith conduct. In a concurring opinion, Chief Justice Nix, then Justice Nix, stated:

I join the majority opinion but merely wish to briefly respond to the objection raised by the dissent. In addition to the deterrent provisions of the Unfair Insurance Practices Act, Act of July 22, 1974, P.L. 589, 40 P.S. §§ 1171.9 and 1171.11 (Supp.1980), appellant was also in a position to seek relief under a theory of breach of contract, or by pursuing the common law tort of deceit. Korona v. Bensalem Tp., 385 Pa. 283, 122 A.2d 688 (1956). Cf Setlock et ux. v. Sutila, 444 Pa. 552, 282 A.2d 380 (1971); Nadolny v. Scoratow, 412 Pa. 488, 195 A.2d 87 (1963). I do not accept the dissent’s implicit premise that these existent remedies are inadequate to make appellant whole.

D’Ambrosio, supra, 494 Pa. at 515, 431 A.2d at 973-74. (Emphasis added). We agree that the Pekulars, like the appellant in D’Ambrosio, are in a position to seek relief by pursuing the common law tort of deceit.

Eich and State Farm argue that after D’Ambrosio, the UIPA provides the sole and exclusive remedy in all actions based upon factual allegations falling within the purview of § 1171.5. We do not agree. In D’Ambrosio, the Court expressly refused to supplement the UIPA with a judicially created cause of action which had never before been recognized by Pennsylvania courts. However, we do not read D’Ambrosio to preclude existing common law remedies such as fraud and deceit.

Eich and State Farm also argue that, as a matter of law, the Pekulars are guilty of “supine negligence” and that an insurer may not be saddled with the burden of proving that an insured read and understood the limitation provisions of the governing insurance contract. They cite Standard Venetian Blind Company v. American Empire Insurance, 503 Pa. 300, 469 A.2d 563 (1983) in support of this proposition. In Standard, our Supreme Court held that where a policy limitation relied upon by an insurer is clearly worded and conspicuously displayed, the insured may not avoid the consequences of that limitation by proving that he failed to read the limitation or that he did not understand it. Id., 503 Pa. at 307, 469 A.2d at 567. However, this holding was preceded and, in our view, tempered and limited by the following quote:

[I]n the absence of proof of fraud, ‘failure to read [the contract] is an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract or any provision thereof.’

Id., 503 Pa. at 305, 469 A.2d at 566, citing Olson Estate, 447 Pa. 483, 488, 291 A.2d 95, 98 (1972) (emphasis added), quoting Orner v. T. W. Phillips Gas & Oil Co., 401 Pa. 195, 199, 163 A.2d 880, 883 (1960). In the instant case, the Pekulars have alleged, and intend to prove, that the limitation in coverage provided by the contract was obtained as a result of intentionally false and fraudulent representations as to the effect of the election. Therefore, we are not inclined to rule that, as a matter of law, the Pekulars are bound by the terms of the contract.

Finally, Eich and State Farm contend that, in any event, the allegations contained in the Pekulars’ complaint do not rise to the level of fraud. After careful analysis of the allegations in the Pekulars’ complaint, we find this argument to be without merit. The Pekulars have alleged that they have justifiably relied to their detriment upon allegedly intentional misrepresentations made by their insurance agent.

II

We next consider the question of whether an insured may maintain a private cause of action under the Unfair Trade Practices and Consumer Protection Law (CPL) when the allegations in his complaint fall within the purview of the acts and practices prohibited by § 1171.5 of the UIPA. The trial court held that such a cause of action may not be maintained and sustained preliminary objections to Count III of the Pekulars complaint. We disagree.

Our Supreme Court explained the purpose of the CPL and set forth the appropriate standards for its construction in Commonwealth v. Monumental Properties, Inc., 459 Pa. 450, 329 A.2d 812 (1974), wherein the Court stated:

The Legislature sought by the Consumer Protection Law to benefit the public at large by eradicating, among other things, “unfair or deceptive” business practices. Just as earlier legislation was designed to equalize the position of employer and employee and the position of insurer and insured, this Law attempts to place on more equal terms seller and consumer. These remedial statutes are all predicated on a legislative recognition of the unequal bargaining power of opposing forces in the marketplace. Instantly, the Legislature strove, by making certain modest adjustments, to ensure the fairness of market transactions. No sweeping changes in legal relationships were occasioned by the Consumer Protection Law, since prevention of deception and the exploitation of unfair advantage has always been an object of remedial legislation.
Although the Consumer Protection Law did articulate the evils desired to be remedied, the statute’s underlying foundation is fraud prevention. This Court emphatically stated in Verona v. Schenley Farms Co., 312 Pa. 57, 64, 167 A. 317 320 (1933), “[a]s a statute for the prevention of fraud, it must be liberally construed to effect the pur-pose____” Accord, Commercial Banking Corp. v. Freeman, 353 Pa. 563, 567, 46 A.2d 233, 235 (1946); Alford v. Raschiatore, 163 Pa.Super. 635, 63 A.2d 366 (1949); Nolan v. Jones, 67 Pa.Super. 430 (1917), aff'd, 263 Pa. 124, 106 A. 235 (1919); Rudy v. Friedman, 54 Pa.D. & C.2d 628 (C.P. Delaware County 1971). See generally 3 J. Sutherland, Statutes and Statutory Construction § 70.-01 (C.Sands ed. 1974); 1 W. Blackstone, Commentaries * 88-89.
Since the Consumer Protection Law was in relevant part designed to thwart fraud in the statutory sense, it is to be construed liberally to effect its object of preventing unfair or deceptive practices.

Monumental, 459 Pa. at 457-460, 329 A.2d at 815-17. (Footnotes omitted). With this liberal standard of construction in mind, Pennsylvania courts have repeatedly held that violations of other statutes may also be violations of the CPL. See generally Culbreth v. Lawrence J. Miller, Inc., 328 Pa.Super. 374, 477 A.2d 491 (1984) (regulation of public adjusters and their contracts possible under both the CPL and the Public Adjuster Law); Pennsylvania Bankers Association v. Commonwealth, Bureau of Consumer Protection, 58 Pa.Commw. 170, 427 A.2d 730 (1981) (regulation of banks possible under both the CPL and the Banking Code); Safeguard Investment Corf. v. Commonwealth, 44 Pa. Commw. 417, 404 A.2d 720 (1979) (CPL applicable to activities allegedly unlawful under usury statutes); Bolden v. Potamkin-Auerbach Chevrolet, Inc., 470 F.Supp. 618 (E.D. Pa.1979) (breach of Truth in Lending Act and Pennsylvania Motor Vehicle Sales Finance Act also violation of the CPL).

Section 201-2(4) of the CPL defines “unfair methods of competition” and “unfair or deceptive acts or practices” to include, as relevant here, the following:

(xi) Making false or misleading statements of fact concerning the reasons for, existence of, or amounts of price reductions;
(xii) Promising or offering prior to time of sale to pay, credit or allow to any buyer, any compensation or reward for the procurement of a contract for purchase of goods or services with another or others, or for the referral of the name or names of another or others for the purpose of attempting to procure or procuring such a contract of purchase with such other person or persons when such payment, credit, compensation or reward is contingent upon the occurrence of an event subsequent to the time of the signing of a contract to purchase;
(xvii) Engaging in any other fraudulent conduct which creates a likelihood of confusion or of misunderstanding.

Section 201-9.2 provides a private cause of action for violation of the provisions of the CPL and further provides that the court may, in its discretion, award up to three times the actual damages sustained.

Unquestionably, the alleged unfair or deceptive acts or practices of Eich and State Farm fall within the expansive language of the CPL. Section 3 of the CPL, 73 P.S. § 201-3, provides in relevant part: “Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce ... are hereby declared unlawful.” Section 2(3) of the CPL defines “trade” and “commerce” as “the advertising, offering for sale, sale or distribution of any services and any property____” (Emphasis added). The business of an insurer and its agents is to sell to an insured a property interest in a policy or policies of insurance, and thus is a business squarely within the CPL’s definition of “trade” and “commerce”. Although certain persons and entities are expressly excluded from regulation under the CPL, the legislature did not expressly exclude insurance companies or their agents in either its original enactment in 1968 or in its subsequent reenactment in 1976. Therefore, there is no exclusion. Commonwealth v. Monumental Properties, Inc., 459 Pa. at 457 n. 5, 329 A.2d at 815 n. 5 (there is no indication of an intent to exclude a class or classes of transactions from the Consumer Protection Law. When the legislature deemed it necessary to make an exception from the Law's scope, it did so in clear language). See also Culbreth v. Lawrence J. Miller, Inc., 328 Pa.Super. at 386, 477 A.2d at 496 (no express exclusion for public adjusters). While it is clear that the acts of insurers and their agents fall within the purview of the CPL, our analysis does not end here. The question we are confronted with is whether the Legislature intended the UIPA and the CPL to coexist as independent statutory mechanisms or whether the UIPA is intended to provide the sole and exclusive statutory penalty for alleged unfair or deceptive acts commited by insurers.

Eich and State Farm contend there is an irreconcilable conflict or inconsistency between the UIPA and the CPL. Therefore, they argue, the rules of statutory construction require that the detailed provisions of the UIPA take precedence over the more broad and general provisions of the CPL. We do not agree since our reading of the two statutes does not reveal an irreconcilable conflict.

In the absence of a manifestly contrary intention of the Legislature, two apparently conflicting statutes must be construed so that both are allowed to operate. 1 Pa.C.S. § 1933; Appeal of Yerger, 460 Pa. 537, 333 A.2d 902 (1975); Culbreth v. Lawrence J. Miller, Inc., supra; Young v. Young, 320 Pa.Super. 269, 467 A.2d 33 (1983). Further, Pennsylvania courts do not favor a repeal of statutes by implication unless there is an irreconcilable conflict between statutes applying to the same matter. Consumers Ed. and Protective Ass’n. v. Schwartz, 495 Pa. 10, 23 n. 17, 432 A.2d 173, 180 n. 17 (1981); Young, supra.

The UIPA vests the Insurance Commissioner with the power to investigate specifically defined acts and practices of insurers, to levy limited monetary penalties, and to suspend or revoke licenses. The CPL on the other hand affords an aggreived consumer a private statutory remedy by which he may receive compensation for statutorily defined wrongs done to him in the course of any trade or business. We see no inconsistency between the UIPA providing for administrative investigation and an imposition of limited penalties and the CPL providing a means by which a consumer may privately seek compensation for wrongs allegedly suffered. Our conclusion that there is no inherent irreconcilable conflict is supported by the fact that the UIPA contains no provision either stating or implying that the power vested in the Insurance Commissioner represents the exclusive means by which an insurer’s unfair or deceptive acts are to be penalized or that the insured is precluded from seeking private compensation for damages incurred. Further, as noted previously, we are mindful of the fact that our Legislature did not see fit to exclude insurers, insurance agents or insurance transactions from the broad scope of CPL regulation in either the original enactment of the CPL in 1968 or, more importantly, in its subsequent reenactment in 1976, a full two years after the enactment of the UIPA.

Finally, Eich and State Farm contend that our Supreme Court’s holding in D’Ambrosio, supra, precludes a cause of action under the CPL against an insurer based on allegedly unfair or deceptive acts or practices. See Layton v. Liberty Mutual Fire Insurance Co., 577 F.Supp. 1 (E.D.Pa.1983); Talamini v. Allstate Insurance Company, No. 83-3292 (E.D.Pa. filed August 16, 1983). Cf. Deetz v. Nationwide Mutual Insurance Co., 20 D & C3d 499 (Dauphin, 1981). We do not agree. In D’Ambrosio, the Court was concerned only with the supplementing of the UIPA with as yet unrecognized common law claims. The Court expressly reserved for the Legislature its prerogative to “ ... announce and implement the Commonwealth’s public policy governing the regulation of insurance carriers. In our view, it is equally for the legislature to determine whether sanctions beyond those created under the [UIPA] are required to deter conduct which is less than scrupulous.” Id. 494 Pa. at 508, 431 A.2d at 970. We believe that the Legislature has determined that an insured, like any other consumer, may seek compensation for damages incurred as a result of unscrupulous conduct under the provisions of the CPL and that the limited penalties of the UIPA do not represent the sole and exclusive deterrent to alleged unfair or deceptive acts of insurers and their agents.

The order of the trial court with respect to the preliminary objections to Counts I and II of the complaint is affirmed. The order of the trial court with respect to Count III is reversed. Jurisdiction is relinquished.

      . Act of July 22, 1974, P.L. 589, No. 205, § 1 et seq., 40 P.S. § 1171.1 et seq.

        . Act of Dec. 17, 1968, P.L. 1224, No. 387 § 201-1 et seq., 73 P.S. § 201-1 et seq.

      . See 73 P.S. § 201-3.