author: FORD ELLIOTT, Judge: JOHNSON, Judge, DEL SOLE, Judge,

text:
    616 A.2d 1012
    COMMONWEALTH of Pennsylvania, Appellant, v. Curt A. COLLINS.
    Superior Court of Pennsylvania.
    Argued March 3, 1992.
    Filed Oct. 26, 1992.

      Mark D. Greenwald, Asst. Dist. Atty., Franklin, for Com., appellant.
    Before DEL SOLE, JOHNSON and FORD ELLIOTT, JJ.
   FORD ELLIOTT, Judge:

The Commonwealth of Pennsylvania appeals from an Order of the Court of Common Pleas, Venango County, Criminal Division, granting Curtis Collins a new trial. We reverse and remand.

Curtis Collins, the appellee, was found guilty by a jury of aggravated assault, simple assault and reckless endangerment. The circumstances of the criminal charges are as follows:

The charges against the defendant stemmed from an incident which occurred at approximately 10:15 p.m., on June 30, 1990. Kim Whitten and Lonnie Adams were crossing Elm Street, in Franklin, to visit Whitten’s mother, Marlene Kerr. As they crossed the street, a young man threw a brick, which struck Kim Whitten in the back of the head. The man who threw the brick then fled toward 1041 Elm Street, where a group of young men were standing on the steps leading to that house.
At trial, three Commonwealth witnesses, Lonnie Adams, Marlene Kerr, and Sandra Crawford, a neighbor, testified Defendant threw the brick which struck Ms. Whitten. Sandra Crawford, however, was the only eye-witness who testified that she actually saw the brick leave Defendant’s hand and strike Ms. Whitten. Five defense witnesses, including Darnell Butler, Jamie Phillips, Keith Lawrence, Clara Collins (the defendant’s mother) and the defendant, all testified that Leroy Manuel Stevenson admitted to them that he was the one who threw the brick. In addition, two Commonwealth witnesses, Sergeant Alton Laing and Officer Kevin Lewis, also testified that Leroy Manuel Stevenson admitted to them that he threw the brick.

Trial court opinion, 4/18/92 at 1-2.

Defense counsel filed a motion in arrest of judgment or for a new trial. Counsel averred that Leroy Manuel Stevenson could not be located prior to trial despite diligent efforts, and, in the alternative, trial counsel was ineffective for failing to speak with Mr. Stevenson immediately preceding the trial and requesting a continuance to secure Stevenson’s presence at the trial. An evidentiary hearing was held on this matter on January 22, 1991, at which Stevenson appeared; however, he invoked his rights under the Fifth Amendment not to incriminate himself when defense counsel inquired whether he threw the brick at the victim. The trial court subsequently refused the motion in arrest of judgment and granted the motion for a new trial.

The only issue raised by the Commonwealth is whether Curtis Collins was denied effective assistance of counsel due to trial counsel’s failure to secure and present the testimony of Leroy Manuel Stevenson at trial.

The standard to be applied in reviewing claims of ineffective assistance of counsel is well settled. ‘The threshold inquiry in ineffectiveness claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim.’ Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989); Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985). Once this threshold is met we apply the ‘reasonable basis’ test to determine whether counsel’s chosen course was designed to effectuate his client’s interests. If we conclude that the particular course chosen by counsel had some reasonable basis, our inquiry ceases and counsel’s assistance is deemed effective. Commonwealth v. ex. rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). If we determine that there was no reasonable basis for counsel’s chosen course then the accused must demonstrate that counsel’s ineffectiveness worked to his prejudice. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). The burden of establishing counsel’s ineffectiveness is on the appellant because counsel’s stewardship of the trial is presumptively effective. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985).

Commonwealth v. Weiss, 530 Pa. 1, 606 A.2d 439, 441-442 (1992).

Relief will be granted on an ineffectiveness claim for counsel’s failure to call a witness if the following requirements have been established: (1) the witness existed; (2) the witness was available; (3) counsel was informed of the existence of the witness or counsel should otherwise have known of him; (4) the witness was prepared to cooperate and testify for defendant at trial; and (5) the absence of the testimony prejudiced defendant so as to deny him a fair trial. Commonwealth v. Franklin, 397 Pa.Super. 265, 580 A.2d 25 (1990), alloc. denied, 527 Pa. 641, 593 A.2d 415 (1991).

The Commonwealth theorizes that Stevenson was “played” as appellee’s assurance of a second trial if defense counsel’s trial tactics at the first trial failed. After the jury returned with the verdict on December 20, 1990, appellee provided defense counsel with the telephone number for Stevenson who was at Allekiski Pavilion, a halfway house. The Commonwealth argues that appellee had known the whereabouts of Stevenson since October 18, 1990, two months prior to trial. Stevenson testified at the evidentiary hearing that he had informed appellee by telephone that he was at Allekiski Pavilion in October, and that they had spoken by telephone on one other occasion following the October communication. Appellee testified at the evidentiary hearing that Stevenson telephoned him in October and informed him that he was in a “rehab” place, but that he did not know where the place was located until a week or two before the trial. The Commonwealth suggests that appellee intentionally withheld his knowledge of Stevenson’s whereabouts from defense counsel until the guilty verdict was rendered, and then he utilized this information as a “trump card.” In fact, the trial court granted a new trial based on defense counsel’s testimony at the evidentiary hearing that appellee informed counsel one day before the trial commenced that Stevenson was at Allekiski Pavilion, but counsel failed to continue the case or to make an effort to obtain the telephone number to try to contact Stevenson knowing that his testimony was important to appellee’s case.

Further, the Commonwealth submits that Leroy Manuel Stevenson was physically unavailable to testify and was unwilling to cooperate with the defense. Stevenson was also unavailable in the sense that he invoked his right under the Fifth Amendment not to incriminate himself during the evidentiary hearing. See Franklin, supra, (A witness who chooses to invoke his Fifth Amendment right not to testify is “unavailable”). The Commonwealth also argues that Stevenson’s testimony would have been cumulative since he invoked his right not to incriminate himself at the evidentiary hearing rather than testify regarding who threw the brick. The Commonwealth contends further that appellee failed to demonstrate prejudice, and the evidence at trial was sufficient to prove appellee guilty beyond a reasonable doubt. Despite the testimony of three defense witnesses that Leroy Manuel Stevenson threw the brick, two defense witnesses who testified that Stevenson admitted throwing the brick and the testimony of Commonwealth witnesses Sergeant Laing and Officer Lewis that

Stevenson told them that he threw the brick, the jury accepted the testimony of three Commonwealth witnesses that appellee threw the brick and found appellee guilty of aggravated assault. The Commonwealth asserts, therefore, that appellee has not met the elements necessary to establish an ineffectiveness claim.

Appellee contends that the Commonwealth successfully used the absence of Stevenson at the trial and Stevenson’s statements made to police after the accident to create the impression that the defense theory that Stevenson actually threw the brick was fabricated. Appellee maintains had Stevenson been called as a witness, even if it were simply to claim his Fifth Amendment right, the jury would probably have viewed the defense theory in a more favorable light. However, our supreme court has held, over a convincing dissent by Justice Roberts, that a witness should not be placed on the stand solely for the purpose of having him exercise his privilege against self-incrimination before the jury. Commonwealth v. Greene, 445 Pa. 228, 285 A.2d 865 (1971); Commonwealth v. Watson, 355 Pa.Super. 160, 512 A.2d 1261 (1986), appeal denied, 515 Pa. 579, 527 A.2d 540 (1987). “If it appears that a witness intends to claim the privilege as to essentially all questions, the court may, in its discretion, refuse to allow him to take the stand. Neither side has the right to benefit from any inferences the jury may draw simply from the witness’ assertion of the privilege ...” Commonwealth v. Bellacchio, 296 Pa.Super. 468, 442 A.2d 1147, 1150 (1982), citing United States v. Lacouture, 495 F.2d 1237, 1240 (5th Cir.), cert. denied, 419 U.S. 1053, 95 S.Ct. 631, 42 L.Ed.2d 648 (1974), quoting United States v. Johnson, 488 F.2d 1206, 1211 (1st Cir.1973). Greene, supra.

In Greene, our supreme court held that the trial court’s refusal to allow a witness for the defense to take the stand was proper where the witness had been indicted for the same crime, and counsel had informed the trial court that the witness had been advised to invoke his Fifth Amendment privilege against self-incrimination. Attempting to distinguish Greene from the case at bar, appellee argues that the Commonwealth chose to make use of Stevenson’s statements in its case against the defendant; whereas, in Greene, the prosecution was not able to use the witness’ statement. Moreover, Stevenson was not charged with the assault in this case, but the person sought to be called in Greene was a co-defendant. Appellee argues that the Commonwealth opened the door for him to call Stevenson to the witness stand and he should have been permitted to call him even if he only invoked his Fifth Amendment right not to incriminate himself.

Appellee relies upon Commonwealth v. Sims, 513 Pa. 366, 521 A.2d 391 (1987), to support his argument that the only method available to effectively counter the Commonwealth’s tactics would have been to call Stevenson to the witness stand, and to permit him to exercise his Fifth Amendment right in the presence of the jury. In that case, the defendant was found guilty of murder and sentenced to death. At trial, the prosecution’s only eyewitness to the murder, who at one point had been charged with the murder, testified that he saw defendant shoot the victim. The defense theory was that the Commonwealth’s eyewitness was actually the murderer. However, the defendant’s theory was thwarted since the trial court ruled outside the presence of the jury, that the attorney-client privilege applied and that its assertion by the witness barred the defense from making the requested inquiries either of him or of his former attorney. The court further ruled that the witness could not be asked any questions even touching upon his assertion of the privilege. The trial court’s ruling prevented the jury from knowing what the Commonwealth’s eyewitness previously told his attorney about the killing of the victim when he was initially charged -with the crime, and it also prevented the jury from knowing that this information was being withheld by the witness.

The principal thrust of Sims’ defense was his attempt to shift criminal responsibility to the prosecution’s eyewitness, but the defendant’s efforts were obstructed by the witness’ assertion of a testimonial privilege and the inability of the defense to locate two of his witnesses or to present their written statements as evidence. Our supreme court reversed Sims holding that the defendant should have been permitted to ask the prosecution’s eyewitness, who was previously charged with the crime, about his communications with his attorney during the time that he was charged with the offense in order to compel the witness to claim his attorney-client privilege in front of the jury where the testimony of the eyewitness was the heart of the prosecution’s evidence. The court opined:

Questioning Hilton [prosecuting witness] as to whether he had previously made inconsistent statements with those being offered at trial in support of appellant’s guilt was certainly relevant and appropriate. Forcing that witness to invoke the statutory privilege in the presence of the jury in no way undermines the underlying policy supporting that privilege. Once the privilege is recognized and upheld, the privileged communication remains inviolate. However, on the other hand, the invocation of that privilege before the jury could have reasonably provided the basis for that tribunal to question the accusations made by that witness against the accused.

Sims, 513 Pa. at 376, 521 A.2d 391, 395.

The supreme court in Sims recognized the well-established principle that the prosecution in a criminal case may not call a witness who it believes will refuse to testify on the basis of the constitutional privilege against self-incrimination [citing Commonwealth v. Virtu, 495 Pa. 59, 432 A.2d 198 (1981); Commonwealth v. Duval, 453 Pa. 205, 307 A.2d 229 (1973); Commonwealth v. Terenda, 451 Pa. 116, 301 A.2d 625 (1973) ]. The prosecution was not permitted to use this strategy since this would unfairly prejudice the defendant by the innuendo of guilty by association. Sims, supra; see, e.g. Duval, supra. The Sims court determined that this reasoning was inapplicable where the defendant attempts to cross-examine a witness who has been called by the Commonwealth as the chief accuser against him. The court stated:

To insulate such a witness from having to invoke his privilege in the jury’s presence, as did the trial court in this case, unfairly bolstered the credibility of a witness whose testimony was crucial to the success of the prosecution. There is nothing in the privilege or its purposes which militates against allowing the jury to at least know that a claimant of the privilege, while testifying as a witness, has elected to withhold from the jury’s consideration possible previous statements made by him concerning the matter on trial. The communication itself is not revealed nor is the interest of the witness adversely affected thereby.

Sims, 513 Pa. at 377, 521 A.2d 391, 396.

The majority in Sims found the following observation by Chief Judge Bazelon in his dissent in Bowles v. United States, 439 F.2d 536, 543 (D.C.Cir.1970) instructive:

The differing situations of the defense and prosecution, which we have recognized in other contexts, see, e.g., McRae v. United States, 137 U.S.App.D.C. 80, 420 F.2d 1283 (1969), is central to an understanding of the appellant’s contention. Cf. Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149 (1960). The position of a defendant asserting his Sixth Amendment right to bring witnesses before the jury is not analogous to that of a prosecutor attempting to insinuate that a defendant is guilty because his confederates refuse to answer incriminating questions. See Fletcher [v. United States ], supra [118 U.S.App.D.C. 137, 332 F.2d 724 (1964) ]. This tactic on the prosecutor’s part is equivalent to an outright denial of the defendant’s Fifth Amendment right to remain silent, and it is unconstitutional to employ a defendant’s silence as an element of the proof needed to convict beyond a reasonable doubt. Fountaine v. California, 390 U.S. 593, 88 S.Ct. 1229, 20 L.Ed.2d 154 (1968); Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). By contrast, when the accused suggests that another person is the culpable party, the other’s refusal to testify is merely being used as corroboration.

Sims, 513 Pa. at 376-377, 521 A.2d 391, 396 (emphasis in original text). Cognizant of its earlier holding in Greene, supra, that the jury may not draw any inference from a witness’ invocation of his constitutional rights whether the inference is favorable to the prosecution or to the defense, the Sims court nevertheless determined that “[r]egardless of the wisdom of that decision [Greene ] (see dissent of Roberts J.), it is not applicable to the instant case because here we are not concerned with a constitutional privilege but rather one that is of statutory origin.” Sims, 513 Pa. at 378 n. 1, 521 A.2d 391, 396 n. 1. Cf. Commonwealth v. Pritchard, 270 Pa.Super. 461, 411 A.2d 810 (1979) (Notwithstanding our view of the soundness of Greene, it is controlling and the issue is resolved against the defendant); see also Commonwealth v. Yabor, 376 Pa.Super. 356, 546 A.2d 67 (1988) (same).

In Sims and the case sub judice, both defendants were at a disadvantage because the persons whom they accused of actually committing the crimes with which the defendants had been charged could have invoked a privilege to protect themselves from having to testify in front of the jury. Although the witness in Sims did testify, the trial court would not permit the witness to be questioned regarding his confidential communications with his attorney when he had been charged with the same murder as the defendant in Sims. The defense in Sims was especially handicapped since it was not permitted to compel the witness to invoke the attorney-client privilege in front of the jury. Though the witness, Stevenson, in our case was not the chief prosecution witness as in Sims, the defense was handicapped because the Commonwealth used Stevenson’s statements, as testified to by the police officers, in its case against appellee.

Based on our supreme court’s Greene decision, counsel would not have been permitted to request a continuance or to present Leroy Manuel Stevenson as a witness for the defense because Stevenson would have invoked his privilege against self-incrimination before the jury and Greene prohibits such a tactic by the prosecution or the defense. For this reason, even though appellee was in fact prejudiced, he cannot demonstrate the kind of prejudice required to sustain an ineffectiveness claim under the circumstances of this case. While the argument submitted by appellee does have merit, we our constrained to follow Greene. It is hoped that our supreme court will have an opportunity to once again review its decision in Greene in light of its Sims rationale. Unfortunately, until such a time, we as an intermediate appellate court are bound by the pronouncement in Greene.

Accordingly, the order granting appellee a new trial is reversed. Conviction reinstated and case remanded for resentencing.

JOHNSON, J., files a concurring opinion.

DEL SOLE, J., files a dissenting opinion.

JOHNSON, Judge,

concurring.

Without disagreeing with much of what is contained in my learned colleague’s Opinion, I feel I must concur in the result. The only issue is whether defense trial counsel was ineffective for not securing and calling Leroy Manuel Stevenson as a defense witness at Curt A. Collins’ trial.

The burden rests upon Collins to establish ineffectiveness. To establish ineffectiveness for failure to call a witness, Collins must present evidence, inter alia, that Stevenson was both (1) available and (2) prepared to cooperate and testify for Collins at trial. Commonwealth v. Franklin, 397 Pa.Super. 265, 272, 580 A.2d 25, 29 (1990). At the evidentiary hearing on January 22, 1991, Stevenson was called and testified. However, when asked concerning the only evidence that would have been consistent with Collins’ defense at the December 1990 jury trial and helpful to Collins, Stevenson invoked the Fifth Amendment and refused to testify.

There was absolutely no evidence submitted by Collins at the evidentiary hearing that Stevenson was either available or prepared to cooperate and testify for the defendant at the earlier trial. Having invoked the Fifth Amendment, it appears obvious that Stevenson was legally “unavailable.” Franklin, supra at 273, 580 A.2d at 29. Inexplicably, the most distinguished trial judge, the Honorable William E. Breene, does not discuss the witness’ unavailability or the total lack of positive evidence that he (Stevenson) would have appeared, at all, at the December 1990 trial, even though the Opinion and Order of Court granting a new trial were filed April 18, 1991, almost three months following the evidentiary hearing.

The reason for the evidentiary hearing is to afford the petitioner — in this case Collins — the opportunity to establish that (1) the witness existed, (2) the witness had been available at time of trial, (3) trial counsel knew or should have known of the witness’ existence and the necessity of the witness’ testimony, (4) the witness was prepared to cooperate and testify for the defendant at the time of trial, and (5) the absence of the testimony brought forth at the evidentiary hearing so prejudiced defendant as to deny him a fair trial. All five of these elements are conjunctive. A review of the evidentiary hearing transcript of January 22, 1991 leads this writer to conclude that the petitioner failed to establish elements (2), (4), and (5) above.

Having failed to meet his burden under the Franklin criteria, the claim of ineffectiveness must necessarily fail. I believe the Commonwealth is entitled to reinstatement of the verdict based solely upon the defendant’s failure to carry his burden at the evidentiary hearing. I, therefore, would decline to undertake the type of thorough analysis which my esteemed colleague has so ably presented reviewing Commonwealth v. Greene, 445 Pa. 228, 285 A.2d 865 (1971) and Commonwealth v. Sims, 513 Pa. 366, 521 A.2d 391 (1987).

I am unable to agree with my colleague’s conclusion that Collins was in fact prejudiced nor do I believe that defense counsel should have requested a “neutralizing instruction calculated to reduce the danger that the jury might draw an inference from the absence' of Stevenson at the trial.” The facts of this case as developed through the evidentiary hearing fall short, I believe, of requiring a revisitation of Commonwealth v. Greene by our supreme court. Regardless of the tactics claimed to have been used by the prosecution and the defense, the defendant has simply not met his burden of showing that Stevenson would have been an effective witness at the December 1990 trial.

Accordingly, I concur that the order granting a new trial should be reversed and the matter remanded for reinstatement of the verdict and for sentencing.

DEL SOLE, Judge,

dissenting:

While I agree with my esteemed colleagues’ conclusion that Commonwealth v. Greene, 445 Pa. 228, 285 A.2d 865 (1971) holds that neither the prosecution nor the defense may have a witness take the stand for the purpose of exercising his Fifth Amendment privilege against self-incrimination, I must respectfully dissent.

The majority opinion states that “... even though appellee was in fact prejudiced, he cannot demonstrate the kind of prejudice required to sustain an ineffectiveness claim under the circumstances of this case”. This statement is followed by a footnote in which Judge Ford Elliott comments:

We note that defense counsel, at the very least, should have requested the trial court to give the jury a neutralizing instruction calculated to reduce the danger that the jury might draw an inference from the absence of Stevenson at the trial. See Greene. This is a borderline case and such an instruction might have tipped the scales in appellant’s favor. However, this issue has not been raised by appellant.

I cannot agree. In the present case, because of Appellant’s counsel’s ineffectiveness, Appellant lost his opportunity to request a neutralizing instruction. It is true that we must follow Greene because it is the law of the Commonwealth, but, from my review of Greene, it is apparent that the majority’s memorandum falls short of applying the case as a whole. The majority has overlooked the second half of the Greene analysis. Greene tells us that in order to extinguish any adverse inferences that the jury may have drawn from Stevenson’s absence at trial, Appellant should have had the benefit of a neutralizing instruction. Cognizant of the fact that a jury who has heard the defendant testify that another is responsible for the crime for which he is being tried, may draw a negative inference if the alleged true perpetrator is not called as a witness, the Greene court, quoting from Bowles v. United States, 439 F.2d 536, 542 (CAD: C 1970) held that, the “court, if requested, should have given [a] ‘neutralizing instruction, one calculated to reduce the danger that the jury will in fact draw an inference from the absence of such a witness’ ”. Commonwealth v. Greene, 445 Pa. 228, 285 A.2d 865, 867 (1971).

In Greene, like in the present case, the appellant was attempting to prove that the missing witness was, in fact, the perpetrator of the crime. Unlike the present case however, the missing witness in Greene testified in camera. In the case sub judice, Appellant’s former counsel failed to locate Stevenson prior to trial and therefore there was no opportunity for Appellant to question Stevenson before the trial. As a result, Appellant lost his opportunity to request that the court offer a neutralizing instruction. I therefore conclude that by not locating Stevenson and having him assert his privilege against self incrimination outside of the jury’s presence, Appellant’s counsel lost Appellant’s opportunity to request a neutralizing instruction and thereby rendered ineffective assistance.

Accordingly, I would affirm the order of the trial court granting Appellant a new trial.

      . 18 Pa.C.S.A. § 2702(a)(4).

      . 18 Pa.C.S.A. § 2701(a).

      . 18 Pa.C.S.A. § 2705.

      . Although Leroy Manuel Stevenson did not appear at the appellee’s trial, Stevenson did testify at the evidentiary hearing following the trial and invoked his Fifth Amendment right not to testify.

      . Direct examination of Officer Kevin Lewis by assistant district attorney Greenwald:
      Q. And what did he [Stevenson] tell you about what Mr. Collins [appellee] told him and what he wanted to tell you?
      A. He stated to us that he wanted to tell us who threw the brick. Sergeant Laing advised him, you know — he stated that he was the one that had thrown the brick. But he stated, you know, he wanted to talk. We then advised him, you know, at that point it was a felony, and he stated, ‘Well, I don’t want to talk anymore.’
      Q. Okay. And did he tell you anything else that the defendant told him?
      A. He just stated that he had spoken to Mr. Collins and Mr. Collins stated to him that he wasn’t taking the rap.
      Trial transcript,- 12/19-20/92 at 68-69.

      . We note that defense counsel, at the very least, should have requested the trial court to give the jury a neutralizing instruction calculated to reduce the danger that the jury might draw an inference from the absence of Stevenson at the trial. See Greene. This is a borderline case and such an instruction might have tipped the scales in appellee’s favor. However, this issue has not been raised by appellee.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    616 A.2d 1019
    COMMONWEALTH of Pennsylvania v. Robert C. GUTHRIE, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 27, 1992.
    Filed Oct. 29, 1992.
    Reargument Denied Dec. 22, 1992.

      William A. Ehrlich, Asst. Public Defender, Wyomissing, for appellant.
    Susan L. Fields, Asst. Dist. Atty., Westchester, for Com., appellee.
    Before BECK, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of sentence for driving while operating privileges are suspended (DUI related). Appellant, Robert C. Guthrie, presents the following claims:

I. Did the trial court err in not dismissing this action pursuant to the de minimis infractions provision of the Pennsylvania Crimes Code, 18 Pa.C.S.[A.] § 312?
II. Did the Commonwealth fail to prove beyond a reasonable doubt that the defendant knew he was in Pennsylvania at the time of the alleged offense?
III. Did the trial court err in finding the defendant guilty of the offense charged given the Commonwealth’s failure to prove beyond a reasonable doubt that the defendant knew he was in Pennsylvania at the time of the alleged offense?

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

On November 22, 1989, appellant was arrested in Pennsylvania for driving under the influence of alcohol (DUI). Appellant was convicted for DUI on May 18, 1990 and his driving privileges in Pennsylvania were suspended for one-year, effective October 15, 1990.I. On January 12, 1991, appellant was driving in Pennsylvania and was cited for violating 75 Pa. C.S.A. § 1543(b), operating a motor vehicle while driving privileges are suspended (DUI related).

Subsequently, on May 1, 1991, the district justice found appellant guilty of violating 75 Pa.C.S.A § 1543(b) and sentenced him to ninety-days imprisonment and a fine of one thousand dollars. Notice of Appeal was timely filed and a trial de novo was held on August 29, 1991, during which appellant was found guilty and sentenced to 90-days imprisonment and a fine of one thousand dollars. Post-trial motions were filed and denied. This timely appeal followed.

I.

Appellant first contends that the trial court erred in failing to dismiss this action pursuant to the de minimis infractions provision of the Pennsylvania Crimes Code. 18 Pa.C.S.A. § 312(a)(2). Specifically, he argues that as his conduct at issue “caus[ed] or threatened] the harm or evil sought to be prevented by the law ... only to an extent too trivial to warrant the condemnation of conviction[,]” id., the court should have dismissed his prosecution as required by 18 Pa.C.S.A. § 312(a)(2). This claim is without merit.

“Section 1543(b) was enacted in coordination with the new Drunk Driving Law as part of the legislature’s broad response to the serious problem of intoxicated drivers. The economic losses, social disruptions and personal tragedies resulting from drunk driving are well documented and the subject of increasing public awareness.” Commonwealth v. Hoover, 343 Pa.Super. 372, 376, 494 A.2d 1131, 1133 (1985); see Commonwealth v. Mikulan, 504 Pa. 244, 470 A.2d 1339 (1983). The intent, in enacting 75 Pa.C.S.A. § 1543(b), was to strictly enforce DUI suspensions, in direct response to a severe threat to public safety. Regardless of how close to state lines appellant was or whether appellant’s act of driving into was unintentional, this court will not undermine our state’s policy against drunk driving by declaring appellant’s acts “de minimis”. See Commonwealth v. Eliason, 353 Pa.Super. 321, 327, 509 A.2d 1296, 1299 (1986) (“Notwithstanding the brevity of the offense committed against the Common-wealth, this was the type of conduct which the legislature sought to prevent.”), allocatur denied, 517 Pa. 592, 535 A.2d 81 (1987). Accordingly, the trial court did not abuse its discretion in failing to apply 18 Pa.C.S.A. § 312(a)(2) to the instant offense.

II.

Appellant next contends that the Commonwealth failed to prove that appellant knew he was in Pennsylvania at the time of the offense. However, because of our disposition of third claim, this claim need not be addressed.

III.

Appellant’s third claim is that as he did not know that he was in Pennsylvania at the time of the commission of the offense, the trial court erred in finding appellant in violation of 75 Pa.C.S.A. § 1543(b). We disagree.

75 Pa.C.S.A. § 1543(b) provides:

Any person who drives a motor vehicle on any highway or trafficway in this Commonwealth at a time when their operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative Disposition for of section 3731 (relating to driving under influence of alcohol or controlled substance) ... shall, upon conviction, be guilty of a summary offense and shall be sentenced to pay a fíne of $1,000 and to undergo imprisonment for a period of not less than 90 days.

Id.

We first note that there is no language in this statute necessitating any kind of mens rea. Accordingly, whether 75 Pa.C.S.A. § 1543(b) requires that appellant know he was in Pennsylvania at the time of the offense is an issue of statutory construction. “Courts which are faced with the statutory interpretation problem of whether a particular crime may be committed without any sort of bad intent sometimes utilize the distinction by stating that the crime is malum in se and so needs a bad intent, or is malum prohibitum and so does not.” W. LaFave, A. Scott, Jr., Handbook on Criminal Law, at 30-31 (1972) (footnote omitted).

Pennsylvania courts are among those which have adopted this method of statutory construction. See Commonwealth v. Borek, 161 Pa.Super. 200, 203-204, 54 A.2d 101, 103 (1947) (When acts are malum in se, then knowledge is required for one to be convicted. However, where an act is made criminal by statute which might otherwise have been committed without culpability, knowledge is not necessary.); Commonwealth v. Jackson, 146 Pa.Super. 328, 331, 22 A.2d 299, 301 (1941) (“ ‘Whether a criminal intent, or a guilty knowledge, is a necessary ingredient of a statutory offense [ ... ] is a matter of construction [ ... ]’ to be determined ‘from the language of the statute and in view of the manifest purpose and design of the same[....]”’ (citing Commonwealth v. Weiss, 139 Pa. 247, 251, 21 A. 10, 10 (1891))) (aff'd, 345 Pa. 456, 28 A.2d 894 (1942)).

The offense in the instant case is clearly malum prohibitum. 75 Pa.C.S.A. § 1543(b) is designed to deter driving while intoxicated and, as such, is both a legitimate and indispensable regulatory statute. However, in this statute’s absence, appellant’s act in the instant case would not be morally reprehensible. Accordingly, we find that knowledge that one is in Pennsylvania at the time of the offense is not required to convict an individual under 75 Pa.C.S.A. § 1543(b).

This finding is also supported by the Pennsylvania Crimes Code. While 18 Pa.C.S.A. § 302(a) mandates that all criminal acts require mens rea, there is an exception for crimes such as the one at issue. “The requirements of culpability prescribed by ... section 302 of this title ... do not apply to: (1) summary offenses, unless the requirement involved is included in the .definition of the offense or the court determines that its application is consistent with effective enforcement of the law defining the offense.” 18 Pa.C.S.A. § 305(a)(1). The offense at issue in the present case fulfills the requirements of 18 Pa.C.S.A. § 305(a)(1).

For the purposes of 18 Pa.C.S.A. § 305(a)(1), it is clear that 75 Pa.C.S.A. § 1543(b) is a summary offense. “An offense defined by this title constitutes a summary offense if ... it is so designated in this title, or in a statute other than this title.” 18 Pa.C.S.A. § 106(c)(1). 75 Pa.C.S.A. § 1543(b) provides that “[a]ny person ... shall, upon conviction, be guilty of a summary offense____” Furthermore, we do not find that the application of the statute without this particular knowledge requirement is inconsistent with effective enforcement of the statute.

In his brief, appellant argues that since this court has read a requirement of actual notice of suspension into the offense of driving while operating privileges are suspended or revoked, see Commonwealth v. Horney, 365 Pa.Super. 152, 529 A.2d 18 (1987), we must further require that appellant have knowledge of his presence in Pennsylvania at the time of his commission of the offense. We disagree. While it is true that this court requires notice of suspension, we have never required more. The policy behind the requirement of knowledge of suspension of operating privileges simply does not support a finding that appellant must know that he is in Pennsylvania to be charged under 75 Pa.C.S.A. § 1543(b). Once an individual is on notice that his driving privileges in Pennsylvania are suspended, it is his obligation to avoid driving in this state. This court will not allow appellant’s “mistake” of driving across state lines to excuse his violation of 75 Pa.C.S.A. § 1543(b). Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . 75 Pa.C.S.A. § 1543(b).

      . This suspension did not affect appellant’s license to drive in Maryland.

      . Appellant contends that he had been driving in Maryland and mistakenly crossed state lines into Pennsylvania.

      . Appellant bases his claim that his act was only “de minimis” upon his assertion that he inadvertently strayed only 1.1 miles over the Pennsylvania-Maryland border into Pennsylvania.

      . The term malum in se refers to crimes that are wrongs in themselves, or inherently evil; e.g., battery, larceny, malicious injury to property, driving while intoxicated, etc. W. LaFave, A. Scott, Handbook on Criminal Law, at 29 (1972) (footnotes omitted).

      . The term malum prohibitum refers to crimes that are not inherently evil, or that are wrong only because prohibited by legislation; e.g., driving over the speed limit, driving under the influence of intoxicants, sale of intoxicating liquors, etc. W. LaFave, A. Scott, supra note 5, at 29-30 (footnotes omitted).

      . The act of driving while one’s operating privileges are suspended does not, in itself, cause any harm. Hence, one could not readily say that a violation of 75 Pa.C.S.A. § 1543(b) is inherently evil.

      . "Except as provided in section 305 of this title ..., a person is not guilty of an offense unless he acted intentionally, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.” 18 Pa.C.S.A. § 302(a).

      . 75 Pa.C.S.A. § 1543(b) is malum prohibitum and, therefore, does not demand mens rea.

      . Specifically, our interest was to warn individuals not to drive in Pennsylvania during the suspension.


author: FORD ELLIOTT, Judge:

text:
    616 A.2d 1023
    In re ESTATE OF Emmett B. LAZARUS, Sr., Deceased. Appeal of NORTH FORK, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued July 29, 1992.
    Filed Nov. 17, 1992.

      Sean P. Flynn, Norristown, for appellant.
    Anthony D. Giannascoli, Plymouth Meeting, for Lazarus, participating party.
    Joseph A. Fitzpatrick, Jr., Allentown, for Stabler Development, participating party.

      Before MONTEMURO, FORD ELLIOTT and CERCONE, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from the December 13, 1991 Final Decree of the Court of Common Pleas of Lehigh County, which failed to approve the Agreement of Sale between the Executor of the Estate of Emmett B. Lazarus and North Fork, Inc. The Final Decree did authorize the Executor to proceed to closing under the terms of an Agreement of Sale with Stabler Development Company. After carefully considering the arguments raised by appellant, North Fork, Inc., we affirm the Final Decree issued by the trial court in this matter.

A detailed recounting of the factual background of this case is necessary in order to address the issues raised before this court.

Emmett B. Lazarus, Jr., is the Executor of both the Emmett Lazarus Estate and the Pearl Lazarus Estate. Each estate owns an undivided one-half interest in two adjoining parcels of real estate located in North Whitehall Township, Lehigh County, Pennsylvania.

On June 26, 1991, Emmett B. Lazarus, Jr., as Executor of the Estate of Emmett Lazarus, and pursuant to a Power of Attorney granted him by Pearl I. Lazarus, executed an Agreement of Sale -with North Fork, Inc., for the two parcels of land situated in North Whitehall Township. The agreement provided for a $600,000.00 purchase price to be paid accordingly: $200,000.00 to be paid on or before final settlement and the remaining $400,000.00 to be paid monthly in the form of a purchase money mortgage over a two-year period, at an interest rate of 9% per annum, with a balloon payment due at the end of the two-year period. Paragraph 6(c) of the Agreement provided that: “this Agreement is specifically conditioned upon Seller obtaining Court approval of this sale and the above-mentioned Purchase Money Mortgage.”

Upon learning that Stabler Development Co. was also interested in Purchasing the land, North Fork, Inc. agreed to increase its offer to $625,000.00. The parties also agreed to modify some of the terms of the sales agreement; however, the agreement was still expressly conditioned upon sellers obtaining court approval.

Once Stabler Development Corporation learned that North Fork had entered into an Agreement of Sale with Emmett B. Lazarus, Jr., for the purchase of the North Whitehall Township property, it also submitted an Agreement of Sale to the executor for the purchase of the subject property. The Stabler Development Corporation offer provided for a purchase price of $650,000.00, to be paid accordingly; $300,000.00 due on or before settlement, and the remaining $350,000.00 to be paid monthly in the form of a purchase money mortgage at an interest rate of 9.5% per annum. The monthly payment would be larger than the monthly payment under the North Fork offer, as there was no balloon payment provision under the Stable Development offer. The Stabler Development Corporation Agreement of Sale, like the North Fork Agreement, also called for approval by the Orphans’ Court.

Upon learning that North Fork had increased its offer to $625,000.00, Stabler Development Corporation delivered to counsel for Executor an Addendum to the Agreement for the Sale of Real Estate. The Addendum called for an increased purchase price of $750,000.00. The Addendum also provided the sellers with options as to the time and manner in which they would receive payments under the purchase money mortgage. Finally, the Addendum provided that Stabler Development Corporation would pay any rollback taxes owed on the properties.

On November 21, 1991, the Estate of Emmett B. Lazarus, Sr., filed a petition in. the Court of Common Pleas of Lehigh County, Orphans’ Court Division, seeking approval of the sale of the North Whitehall Township property to North Fork, Inc.

On November 27, 1991, Stabler Development Corporation filed a petition with the Orphans’ Court seeking approval of its Agreement of Sale for the same real estate. The Orphans’ Court set a hearing date to consider both petitions.

The Honorable Robert K. Young held a hearing on both petitions on December 5, 1991. At the hearing, beneficiary Robin L. Lazarus, a mentally incapacitated adult, was represented by her Guardian ad litem, an attorney appointed by the Orphans’ Court. Beneficiary Sharon Hilbert appeared pro se at the hearing. All other parties were represented by counsel. At the hearing, the Estate modified its petition and requested that the Orphans’ Court approve the sale to Stabler Development Corporation.

On December 13, 1991, Judge Young issued a decree nisi refusing to approve sale of the real estate to North Fork, Inc., and approving sale of the real estate to Stabler Development Corporation. Post-trial motions were subsequently denied by order dated January 2, 1992. The decree nisi was converted to a final decree. This timely appeal followed.

Appellant, North Fork, Inc., presently raises the following issue for our consideration:

Did the Orphans’ Court commit an error of law in failing to approve the executed agreement for the sale of decedent’s real estate to North Fork, Inc. for an amount far in excess of the appraised value when, in the absence of a showing of fraud, accident or mistake, the court was faced with a higher offer on different terms, which offer was forthcoming subsequent to the execution of the agreement of sale with North Fork, Inc.?

In addressing this issue it is important to focus upon Section 3360(a) of the Pennsylvania Decedents, Estates and Fiduciary Code, for it is the interpretation of this section which 'will ultimately resolve the present controversy. Section 3360(a) provides in pertinent part:

(a) Inadequacy of consideration or better offer. — When a personal representative shall make a contract not requiring approval of court, or when the court shall approve a contract of a personal representative requiring approval of the court, neither inadequacy of consideration, nor the receipt of an offer to deal on other terms shall, except as otherwise agreed by the parties, relieve the personal representative of the obligation to perform his contract or shall constitute ground for any court to set aside the contract, or to refuse to enforce it by specific performance or otherwise. Provided that this subsection shall not affect or change the inherent right of the court to set aside a contract for fraud, accident or mistake. Nothing in this subsection shall affect the liability of a personal representative for surcharge on the ground of negligence or bad faith in making a contract.

20 Pa.C.S.A. § 3360(a).

Appellant argues that the present situation falls within the parameters of section 3360(a), and is therefore controlled by the language in that section. Specifically, appellant refers to that part of section 3360(a) which prohibits a trial court from setting aside a contract for an offer to deal on other terms, as supporting its contention that the trial court erred in failing to approve its Agreement of Sale with Executor, and approving the Agreement with Stabler Development Corporation. Appellant relies upon In re Estate of Hughes, 517 Pa. 410, 538 A.2d 470 (1988), to demonstrate why the present situation is governed by section 3360(a), and why a proper application of the section can only lead to the conclusion that the trial court erred in this instance.

However, as appellees correctly note, Hughes is distinguishable from the present case; section 3360(a) has no application in this instance; and in light of the applicable case law, the trial court did not err in reaching its conclusion.

As appellees point out, section 3360(a) deals specifically with only two situations: (1) when a personal representative shall make a contract not requiring court approval, or (2) when a court has already approved a contract of a personal representative requiring court approval. The present case falls under neither category. The contract between the Executor and North Fork, Inc., does not fall into category one since the contract did require court approval. While the second category under that section does deal with contracts requiring court approval, as did the North Fork contract, when read carefully, and in its entirety, it is clear that the type of situation falling within the second category of section 3360(a) is one in which an approved contract is subsequently set aside by a court in light of a later, better offer. Although somewhat awkwardly drafted, section 3360(a) is most succinctly interpreted by our supreme court in Estate of Penrose, 486 Pa. 9, 403 A.2d 982 (1979).

Estate of Penrose involved a factual situation similar to the present one. The executors of Boies Penrose’s estate entered into a written agreement for the sale of forty-four acres of land to R & R Investment Corporation for $512,500. The sales agreement provided that the sale was contingent upon the approval of the orphans’ court. The executors filed a petition to obtain such court approval. Subsequently, two of the beneficiaries objected to the proposed sale in light of a more favorable offer from James Keeley. Keeley offered to purchase the realty for $550,055 and without a mortgage contingency is his agreement. After an evidentiary hearing on the matter, the trial court refused to approve the sale to R & R Investment Corporation, and instead fixed a date the court would receive bids for the property. The property was sold at the auction to a third party. R & R appealed the trial court’s order refusing to approve its sales agreement. The supreme court affirmed the order of the trial court, and in so doing, reaffirmed the exact parameters of applicability of section 3360(a) as previously established in Curtis Estate, 437 Pa. 123, 261 A.2d 589 (1970). In addressing the possible applicability of section 3360(a) to the case before it, the Penrose court stated:

Any suggestion that section 3360(a) of the Probate, Estates and Fiduciaries Code, 20 Pa.C.S.A. §§ 101 et seq., precluded the court’s consideration of the Keeley offer in determining whether to approve the R & R agreement is without legal or factual basis.

In Curtis Estate, supra, this court stated:

The Act of May 24, 1945, P.L. 944, 20 P.S. §§ 818, 819 [now section 3360 ], specifically addresses itself to situations in which it appears after approval that a higher price could have been obtained, and it forbids any withdrawal of approval for such a reason. Absent a showing of a lack of integrity in the judicial process which led to the approval, the approval, once given, is final and binding.
437 Pa. at 129, 261 A.2d at 593. Here prior to court approval and before execution of the R & R agreement another offer arose. That offer was properly considered by the court in evaluating the best interests of the beneficiaries.

Estate of Penrose at 14-15, n. 3, 403 A.2d at 984-85, n. 3 (emphasis added).

Presently, we also are faced with a situation where, prior to court approval, another offer was presented to the executor. Clearly, in light of Penrose, supra, and Curtis, supra, the trial court did not err in evaluating the offers in light of the best interests of the beneficiaries and granting its approval accordingly.

This interpretation of section 3360(a) becomes all the more cogent when one considers that, under established principles of contract law, the “court approval” clause in the sales agreement operates as a condition precedent. As defined by a noted authority on contracts, “the use of the term ‘condition’ is confined to an event, other than the mere lapse of time, that is not certain to occur but which must occur (unless the condition is excused) in order to activate an existing contractual duty.” Murray on Contracts, § 99B, p. 539 (3d ed. 1990). Applying this definition to the North Fork sales agreement, it is clear that the agreement was conditional. The agreement provides that an event must occur; namely, that the Orphans’ Court approve the agreement before any contractual duties arise. Furthermore, although this event must occur, it is not certain to occur. Court approval of the agreement is not pro forma. A key characteristic of a conditional contract is that the condition is not certain to occur. If we were to adopt appellant’s proposed interpretation of section 3360(a), the trial court would never be able to withhold approval of a conditional contract in the first instance. Such an interpretation would effectively nullify and render meaningless operative language in conditional contracts.

Rather, interpreting section 3360(a) as the supreme court has done in Penrose, supra, and Curtis, supra, is more in line with the language of the act itself. Section 3360(a) specifically provides that a better offer will not “constitute ground[s] for any court to set aside the contract.” Until the condition precedent is satisfied, no contractual duties arise. Thus, when presented with two conditional sales agreements, the trial court is well within its power to evaluate the agreements and grant its approval of one or the other. It is only then, after initial approval of the court has been granted, that section 3360(a) would come into play to prevent the court from setting aside a contract it has already approved.

Finally, it is because the Hughes case falls within the first category under section 3360(a) that it is controlled by that section, and consequently distinguishable from the present case. Hughes involved a situation wherein an administratrix entered into a sales agreement for the sale of a house. The agreement was subject to the approval of the Court of Common Pleas of waiver or of posting bond. Administratrix’s brothers and sister subsequently petitioned the court to stay the sale as they were in receipt of a better offer. The trial court entered an order authorizing administratrix to accept the subsequent higher offer. Ultimately, on appeal, the supreme court concluded that the trial court violated section 3360(a) by setting aside a contract for the sale of real property of an interstate estate due to the existence of a higher offer. In reaching this conclusion the supreme court noted that this was not a sales agreement requiring approval of court.

The reference in this section [3360(a) ], to ‘approval of the court’ was not intended to apply to contracts like the present which seek only to allow the administratrix to waive the posting of the bond.

Hughes, 517 at 413, 538 A.2d at 471, n. 2.

Thus, in Hughes, the trial court was presented with a petition to set aside a contract of a personal representative not requiring court approval. Clearly, under the language of section 3360(a) the trial court could only set aside such a contract for fraud, accident, or mistake; not, however, because of the existence of a subsequent higher offer. Such a situation is entirely different from the present one, wherein the trial court was presented with a conditional sales agreement which did require court approval before becoming a legally binding contract. Thus, because Hughes involves an entirely different scenario, one in which section 3360(a) is applicable, its reasoning cannot be used as precedent in the present case.

Rather, it is evident from Penrose, supra, and Curtis, supra, that the trial court was well within its power to take the measures it did in this instance. Consequently, we affirm the Final Decree issued by the trial court in this matter.

Order affirmed. Jurisdiction relinquished.

MONTEMURO, J., concurs in the result.

      . Pearl I. Lazarus was alive when the two sales agreements were entered, and at the time of the Orphans’ Court hearing. Her interests were at all times represented by Emmett B. Lazarus, Jr., pursuant to a Power of Attorney. Pearl I. Lazarus subsequently died on January 1, 1992, at which time Emmett B. Lazarus, Jr., was appointed Executor of her estate.


author: McEWEN, Judge:

text:
    616 A.2d 1027
    Linda GALLOP, Appellant, v. Anna Marie ROSE, Appellee.
    Superior Court of Pennsylvania.
    Argued Aug. 12, 1992.
    Filed Nov. 18, 1992.

      John J. Branigan, Philadelphia, for appellant.
    James P. Bradley, Media, for appellee.
    Before CAVANAUGH, WIEAND and McEWEN, JJ.
   McEWEN, Judge:

This appeal has been taken from the judgment in the amount of $15,000.00 entered in favor of appellant, Linda Gallop, after the court molded a jury verdict in the amount of $100,000.00 in favor of Linda Gallop, by reducing it by $85,-000.00, representing the amount of uninsured motorist benefits already paid to appellant. We affirm the verdict as molded by the trial court.

Appellant recites in her brief the factual history of the accident which underlies this litigation and appeal:

On November 18, 1984, plaintiff Linda Gallop was a passenger in a vehicle owned and operated by defendant Anna Rose. Defendant’s vehicle left the highway in order to avoid an on-coming vehicle whose identity was never ascertained or verified. The vehicle occupied by the parties struck a large tree off to the side of the highway causing very serious injuries to both parties. The police arrived at the scene and conducted an investigation while arranging for medical rescue personnel to transport both parties to the local hospital for emergency care. Police noted the absence of any skid marks from the Rose vehicle in addition to the strong odor of alcohol from defendant Rose who had a blood alcohol content of .19%.

The account of the efforts of appellant to effect a recovery for her injuries is recited in the brief of appellee:

Aetna Insurance Company had issued policies of motor vehicle insurance to appellee, appellant and appellant’s parents. Appellee, Anna Maria Rose, had $35,000 in uninsured motorist coverage while appellant Linda Gallop had $65,000 in uninsured motorist coverage. In negotiations with Aetna, all claims regarding coverage were pursued as uninsured motorist claims because of the phantom vehicle involved in this accident. Following negotiations it was agreed that appellant would receive $20,000 from appellee’s uninsured motorist coverage and appellee would receive $15,000 in uninsured motorist benefits. Appellant also sought to recover under her own and her parents’ policies which, with stacking of benefits, provided $65,000 in uninsured motorist benefits. Following an arbitration hearing on the matter, appellant was awarded the full $65,000.00 available with the panel noting that the extent of her damages exceeded the available coverages of $85,000.00 in uninsured motorist benefits. Appellant, on November 7, 1986, commenced the instant [trespass action] against appellee. A default judgment was entered December 2, 1987, for failure to respond. The case proceeded to trial solely for an assessment of damages as a result of the default judgment. Prior to trial, appellee raised the issue of a “set off’ or right to receive a credit for the $85,000.00 already paid to appellant in uninsured motorist benefits since appellant was now proceeding against Aetna’s insured’s liability coverage. The trial court denied appellee’s motion in limine which requested the court reduce any verdict by the amount already paid presumably since the motion was premature in the absence of a determination of appellant’s total damages.
The jury determined that the full measure of damages incurred by appellant was $100,000.00. Following trial, appellee, in post-verdict motions, renewed her request to “set-off’ or receive a credit for the $85,000.00 already paid by Aetna to appellant. The trial court, in response to the post-verdict motions, exercised its equitable powers and reduced the jury verdict to reflect the difference between the jury’s assessment of total damages at $100,000.00 and the $85,000.00 in uninsured benefits already paid to appellant by Aetna.

The distinguished Judge Joseph A. Smyth explained his decision to set the earlier uninsured motorist payments of $85,000.00 off against the verdict of $100,000.00 as follows:

The Court’s charge instructed the jury unambiguously, on the question of damages, that they were to consider, “only such sum as will compensate Linda Gallop for the injury and damage she sustained, if any, as a direct result of the accident.”
Moreover, the verdict sheet asked the jury to, “State the amount of damages, if any, sustained by the plaintiff as a result of the accident.”
The jury was asked to estimate the full value of plaintiffs injuries. That is exactly what they did when they awarded her $100,000. Since plaintiff had already received $85,000, the proper and just action for this Court to undertake was to amend the verdict to $15,000.

Appellant has presented in her brief the following issues for our consideration:

Did appellee/defendant waive all defenses where they were never plead except through Motions In Limine before the trial to assess damages against the defaulting sole defendant/appellee.
Did the trial court err in molding a plaintiffs verdict against sole defaulting defendant by a set-off where no other tortfeasor has been judicially determined nor their negligence pro-rated.

We tarry not with the first claim of appellant that appellee waived all defenses relating to the amount of the damages actually suffered by appellee as a result of the default judgment entered against her, since we find the default judgment on the issue of liability irrelevant to our determination of whether the verdict was properly molded by the trial court. Cf. Iorfida v. Mary Robert Realty Co. Inc., 372 Pa.Super. 170, 175-76, 539 A.2d 383, 386 (1988). Rather the focus of our study is the decision of the trial court to mold the verdict by reason of Aetna’s asserted right to subrogation, a study which compels us to affirm the trial court. We do so because the unusual circumstances triggered in the instant case by the coincidence of the issuance by a single carrier of all of the policies of insurance involved in this controversy, have conferred upon Aetna equitable, statutory, and contractual rights to be subrogated to all payments in excess of actual damages received by appellant, up to the amount of the payments made by Aetna under the uninsured provisions of the motor vehicle policies at issue.

We first address the contractual right of appellee to subrogation. When appellant received a $20,000.00 payment under the uninsured motorist coverage provided by the policy issued by Aetna to appellee Anna Marie Rose, she executed, in conjunction therewith, a release on August 15, 1985, which provided inter alia:

The amount of such payment shall be applied in reduction of any amount which the undersigned may be entitled to recover, because of bodily injury ... sustained in the above accident by the undersigned or any other person from an insured under the bodily injury liability coverage of the above policy.
The Company shall be entitled to the extent of such payment to the proceeds of any settlement or judgment that may result from the exercise of any rights of recovery against any person or organization legally responsible for the bodily injury because of which such payment is made.
Claimant expressly reserves the right to “stack” other policies and this release does not relieve Aetna’s obligation for those policies nor does it release the insured or Aetna from payment under the liability portion of this policy nor does any reduction apply.

This release evidences the intent of the parties to preserve Aetna’s statutory and contractual subrogation rights to all recoveries in excess of appellant’s actual damages.

Appellant subsequently demanded arbitration of her claim for uninsured benefits under the terms of the two policies covering the vehicles in appellant’s household which, when stacked, provided $65,000.00 in uninsured motorist coverages. The panel of arbitrators awarded appellant $85,000.00, reflecting the available coverages of $65,000.00 from appellant’s policies and the $20,000.00 already paid to appellant under appellee’s policy. The arbitrators expressly found that $85,-000.00 did not reflect the full measure of the damages sustained by appellant. Appellant then instituted suit against appellee, seeking to recover under the liability coverages of the policy issued to appellee under which appellant had received the $20,00.00 in uninsured motorist benefits. A default judgment for failure to answer was entered against appellee on the issue of liability and the court submitted the issue of the total amount of damages to the jury. The jury found that the total amount of damages sustained by appellant was $100,000.00. Thus, appellee had a contractual right to subrogation, up to the amount of its uninsured motorist payments, to any amount over $100,000.00 recovered by appellant as a result of the terms of both the insurance policies and the release executed by appellant.

The basis of the equitable right of appellee to subrogation was the subject of insightful analysis by our venerable colleague Judge John G. Brosky when he stated in Allstate Ins. Co. v. Clarke, 364 Pa.Super. 196, 527 A.2d 1021 (1987):

[W]hen an individual who has been indemnified for a loss subsequently recovers for the same loss from a third party, equity compels that the indemnifying party be restored that which he paid the injured party; thereby placing the cost of the injury upon the party causing the harm while preventing the injured party from profiting a “double recovery” at the indemnifying party’s expense.
Application of the doctrine of subrogation is a relatively easy task when there exists only one element of damage to the insured party. If an individual suffers $5,000.00 damage to an automobile, for example, and is paid this amount pursuant to collision coverage of an insurance contract and then is later successful in recovering $5,000 in a suit for damage to the vehicle against a third party, the insurer is entitled to the $5,000 judgment. If the insured were to recover only $4,000 in a suit against the third party, the insurer would still be entitled to the $4,000. If for some reason, say a favorable valuation of the automobile, the insured were to recover $6,000 against the third party, the insurer would remain entitled to only $5,000, the excess would belong to the insured. However, subrogation becomes increasingly more difficult to apply as the amount of the claim increased and encompasses many elements of damages. If, to use the same example, in a collision an insured sustains not only property damages but personal injury, his claim against the tortfeasor -will likely encompass medical bills, loss of earning capacity, lost wages, pain and suffering, and various other elements of personal injury damages in addition to the property damages. If the case goes to verdict and full damages are awarded and later collected, the insurer’s subrogation right would remain easily ascertainable because if the insured recovered in full the subrogee is also entitled to recover in full.

Allstate Ins. Co. v. Clarke, supra, at 202, 527 A.2d at 1024 (footnote omitted).

The equitable right to subrogation for payments made pursuant to uninsured motorist coverages attaches “ ‘to the insured’s recovery from any person legally responsible for the insured’s injury for which the insurer has made payment under uninsured motorist coverage only upon the insurer’s showing that the sum of the insured’s recovery from the insurer and from persons legally responsible for the injury exceeds the insured’s loss.’ ” Nationwide Mutual Insurance Co. v. Ditomo, 330 Pa.Super. 117, 120-21, 478 A.2d 1381, 1383 (1984) quoting Walls v. City of Pittsburgh, 292 Pa.Super. 18, 22-23, 436 A.2d 698, 701 (1981) (emphasis supplied). Thus, Aetna had no equitable right to subrogation until appellant’s total damages were ascertained and recouped, a condition precedent met when the jury returned a verdict of $100,000.00 and Aetna was required to pay to appellant an additional $15,000.00 to be made whole. Of course, had Aetna tendered the full amount of the verdict to appellee, Aetna would have had an equitable subrogation claim for $85,000.00 which could be recovered in a separate action against appellant.

Aetna would have also had a statutory right to subrogation pursuant to Section 2000(d) of the Uninsured Motorist Act, 40 P.S. §§ 2000 et seq.

“Section (d) [of the Act] provides, in relevant part:
‘In the event of payment to any person under [uninsured motorist coverage], the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made.... ’
The purpose of the above-quoted statutory section and contractual provision is to allow an insurer who makes a payment under uninsured motorist coverage the right of subrogation. Hughes v. State Farm Mut. Auto. Ins. Co., 604 F.2d 573, 577 (8th Cir.1979), citing A. Widiss, A Guide to Uninsured Motorist Coverage § 3.10, app. B 3 at 313 (1968 and Supp.1978).”

Walls v. City of Pittsburgh, 292 Pa.Super. 18, 22-23, 436 A.2d 698, 700-701. Thus, pursuant to the provisions of the Uninsured Motorist Act, appellee would be entitled to recover all sums in excess of $100,000.00 paid to appellant.

We can perceive no abuse of discretion or error of law on the part of the trial court in molding the verdict to reflect the subrogation rights of appellee where to have refused to do so would have necessitated a separate subrogation action serving only to waste precious judicial resources. We, therefore, affirm the judgment entered upon the verdict as molded by the trial court.

Judgment affirmed.

      . Act of August 14, 1963, P.L. 909, No. 433, as amended, 40 P.S. § 2000 et seq.


author: POPOVICH, Judge:

text:
    616 A.2d 1031
    Richard W. ROGERS, Richard W. Rogers & Assoc., Appellees, v. Edith H. WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 2, 1992.
    Filed Nov. 19, 1992.

      Sunny Richman, Philadelphia, for appellant.
    Richard A. Webster, Allentown, & Andrew J. Reilly, Philadelphia, for appellee.
    Before CIRILLO, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Philadelphia County which granted summary judgment in favor of appellees Richard W. Rogers, Esquire and Richard W. Rogers & Associates, on appellant Edith Williams’ counterclaim for legal malpractice. We affirm.

This action began when appellees filed suit in Philadelphia Municipal Court to collect the balance of attorney’s fees due, $3,000.00, from appellant. Appellees prevailed in Municipal Court, and appellant appealed to the Court of Common Pleas. Appellees again filed their complaint alleging that appellant owed them $3,000.00 in attorney’s fees, plus costs and interest. Appellant filed her answer and counterclaim which alleged breach of contract and legal malpractice and which sought damages in excess of $20,000.00.

Appellant was represented by appellees in the case of United States v. Williams, U.S.D.C. No. 88-00354 (E.D.Pa.). Therein, appellant pleaded guilty to two counts of mail fraud concerning her receipt of student loans and grants as the result of her fraudulent procurement of an alien registration card through a “sham” marriage. Herein, appellant contends that she is innocent of the charges to which she pleaded guilty and that she pleaded guilty only because counsel advised her to so plead. She asserts that she was never advised by counsel that she might be deported if she pleaded guilty. She also asserts that appellees breached their contract whereby Attorney Rogers, in exchange for $4,500.00, agreed to take her case to trial, i.e., no plea bargain.

Subsequently, appellees filed a motion for summary judgment on appellant’s counterclaims for breach of contract and legal malpractice. The motion was based upon the statute of limitations, waiver and collateral estoppel, i.e., her guilty plea bars her present assertion of innocence. Summary judgment was granted by the lower court on the grounds that appellant failed to establish the necessary elements for a professional negligence cause of action. The court found that appellant could not show that Attorney Rogers failed to exercise ordinary skill and knowledge or that his alleged failure to exercise ordinary skill and knowledge was the proximate cause of her possible deportation.

Herein, appellant contends that: 1) The lower court erred in granting summary judgment on the basis of an issue it raised sua sponte; and 2) The court erred in entering summary judgment as to both her legal malpractice claim and her breach of contract claim. In their brief, appellees assert that: 1) Appellant’s counterclaim is barred by the two-year statute of limitation for tort actions; and 2) Appellant’s counterclaim fails to set forth a cause of action for breach of contract or legal malpractice. Appellant then filed a reply brief wherein she responded to appellees’ assertions.

First, appellant complains that the lower court erred when it entered summary judgment on an issue which it raised sua sponte. Appellant cites MacGregor v. Mediq, Inc., 395 Pa.Super. 221, 230, 576 A.2d 1123, 1128 (1990), in support if its argument that the trial, court erred. We agree that a trial court must not act as an advocate and raise a defense sim sponte on behalf of a party. MacGregor, 576 A.2d at 1128; Wojciechowski v. Murray, 345 Pa.Super. 138, 142, 497 A.2d 1342, 1344 (1985). However, we find that the question of whether appellant failed to set forth a cause of action in legal malpractice was raised by appellees in their motion for summary judgment, albeit not as clearly as their statute of limitations defense.

The standard for reviewing an order granting summary judgment was set forth in Vargo v. Hunt, 398 Pa.Super. 600, 601, 581 A.2d 625, 626 (1990), as follows:

A determination of whether the grant or denial of a motion for summary judgment is to be upheld requires an appellate court to decide whether the pleadings, depositions, answers to interrogatories, admission and affidavits show that there is no genuine issue as to any material fact, and that the moving part is entitled to judgment as a matter of law. Overly v. Kass, 382 Pa.Super. 108, 554 A.2d 970, 971 (1989); see also Chiricos v. Forest Lake Council Boy Scouts of America, [391] Pa.Super. [491], 571 A.2d 474, 475 (1990). In making such a finding, we must accept as true all properly pleaded facts, as well as all reasonable inferences which might be drawn therefrom. Furthermore, we shall not disturb the trial court’s ruling unless there has been an error of law or a manifest abuse of discretion. Overly v. Kass, supra.

See also, Pa.R.C.P. 1035; Dorohovich v. West American Ins. Co., 403 Pa.Super. 412, 419, 589 A.2d 252, 256 (1991); Bodnik v. Philadelphia, 135 Pa.Cmwlth. 453, 454, 580 A.2d 1187, 1187 (1990).

Under Pennsylvania law, a client may sue his attorney for legal malpractice upon a trespass or an assumpsit theory. Guy v. Liederbach, 501 Pa. 47, 53, 459 A.2d 744, 748 (1983). In assumpsit, the theory is that a breach of contract occurred when the attorney failed to follow a specific instruction of the client. Hoyer v. Frazee, 323 Pa.Super. 421, 424, 470 A.2d 990, 992 (1984); Duke & Co. v. Anderson, 275 Pa.Super. 65, 70, 418 A.2d 613, 616 (1980). Instantly, appellant alleges appellees breached her instructions to try her case. However, appellant’s argument ignores her act of pleading guilty. By pleading guilty, appellant, in effect, modified the “contract” by accepting the negotiated plea agreement with the United States Attorney. Appellees did not breach the contract by failing to try appellant’s case when she decided to plead guilty. Her argument simply ignores the dynamics of the attorney-client relationship in a criminal case. Therefore, the lower court correctly entered summary judgment in favor of appellees on appellant’s breach of contract claim.

Turning now to appellant’s legal malpractice cause of action, we recite the standard set forth in the case of IbnSadiika v. Riester, 380 Pa.Super. 397, 403, 551 A.2d 1112, 1115 (1988):

The three elements of a cause of action for professional negligence (or legal malpractice) are: (1) the employment of the attorney or other basis for his duty to act as an attorney; (2) the failure of the attorney to exercise ordinary skill and knowledge; and (3) that such negligence was the proximate cause of damage to the plaintiff. Trice [v. Mozenter], 356 Pa.Super. 510, 515 A.2d 10, 13 (1986); Duke & Co. v. Anderson, 275 Pa.Super. 65, 418 A.2d 613, 616 (1980); Schenkel v. Monheit, 266 Pa.Super. 396, 405 A.2d 493, 494 (1979). Additionally, the plaintiff must be able to establish by a preponderance of the evidence that he or she would have prevailed in the underlying litigation. Brock v. Owens, 367 Pa.Super. 324, 532 A.2d 1168, 1170 (1987); Trice, supra; Duke, supra.

Instantly, appellant alleges that she is innocent of the charges to which she pleaded guilty. Appellant, a Liberian national, asserts her marriage was bona fide and was not a “sham” marriage entered into in order to obtain a “green” card from the Immigration and Naturalization Service and other benefits, such as student loans. Appellant contends Attorney Rogers was negligent when he failed to advise her that if she pleaded guilty, the INS might initiate deportation proceedings against her. She also contends that but for Attorney Rogers negligent advice, she would not have entered a guilty plea.

It is undisputed that Attorney Rogers was retained by appellant to represent her in the criminal action filed by the United States Attorney. Thus, the first prong of the test for legal malpractice has been met. Next, we must determine whether, accepting as true all well-pleaded facts of appellant and all reasonable inferences therefrom, appellees failed to exercise ordinary skill and knowledge. In answering that question, we are mindful that an allegation of incompetency on the part of counsel is tantamount to an allegation of ineffective assistance of counsel, ei bon ee baya ghananee v. Black, 350 Pa.Super. 134, 504 A.2d 281, 285 (1986); Commonwealth v. Smoyer, 281 Pa.Super. 320, 422 A.2d 189, 190 (1980), citing Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1974).

Thus, we must decide whether appellant, in exercising ordinary skill and knowledge, was required to advise appellant of the collateral consequence of her guilty plea, i.e., the possibility of deportation. Since counsel was representing appellant in federal court, we must look to the federal judiciary for guidance in determining whether counsel was competent in the present situation. The federal judiciary has answered the question of whether notification by counsel of possible deportation proceedings is essential to adequate representation as follows:

[W]e adopt as the proper rule the view endorsed by several of our sister circuits that “counsel’s failure to advise the defendant of the collateral consequences of a guilty plea cannot rise to the level of constitutionally ineffective assistance.” United States v. Campbell, 778 F.2d 764, 768 (11th Cir.1985). Accord United States v. George, 869 F.2d 333 (7th Cir.1989); United States v. Yearwood, 863 F.2d 6 (4th Cir.1988); United States v. Gavilan, 761 F.2d 226 (5th Cir.1985); United States v. Santelises, 509 F.2d 703 (2d Cir.1975). Collateral consequences of a guilty plea are many. The may include loss of civil service employment, United States v. Crowley, 529 F.2d 1066 (3d Cir.1976), cert. denied, 425 U.S. 995, 96 S.Ct. 2209, 48 L.Ed.2d 820 (1976), of the right to vote and to travel freely abroad, Meaton v. United States, 328 F.2d 379 (5th Cir.1964), cert. denied, 380 U.S. 916, 85 S.Ct. 902, 13 L.Ed.2d 801 (1965), of the right to a driver’s license, Moore v. Hinton, 513 F.2d 781, 782-783 (5th Cir.1975), and of the right to possess firearms, 18 U.S.C. § 921. But we have long held that a defendant’s incomplete awareness of collateral consequences of a guilty plea does not render that plea involuntary. As we noted in United States v. Sambro [454 F.2d 918 (D.C.Cir.1971) ], the Supreme Court’s observation in Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970), “that the accused must be ‘fully aware of the direct consequences,’ ” of a guilty plea supports an assumption that the Court, by using the word “ ‘direct’ ... excluded collateral consequences.” 454 F.2d at 918, 922 (emphasis in Sambro).
Deportation is a harsh collateral consequence, but many other collateral consequences are also harsh. In common with the Eleventh Circuit “we do not find deportation so unique as to warrant an exception to the general rule that a defendant need not be advised of the [collateral] consequences of a guilty plea.” Campbell, 778 F.2d at 769. United States v. Del Rosario, 902 F.2d 55, 59 (D.C.Cir.1990) (footnote omitted).
Under Del Rosario, supra, and the cases cited therein, Attorney Rogers’ stewardship was not lacking. Cf., Frometa, supra. Therefore, we agree with the lower court that appellant cannot, as a matter of law, prove that her counsel neglected to exercise “ordinary skill and knowledge.” Accordingly, she cannot succeed on her malpractice claim, and the lower court properly dismissed her cause of action.

Judgment affirmed.

      . In her reply brief, appellant raised the following additional issues which she had not previously raised: 1) Even if the statute of limitations has expired, she may assert the defense of recoupment based on Attorney Rogers’ alleged negligence; 2) Muhammad v. Strassburger, 526 Pa. 541, 587 A.2d 1346 (1991) does not apply to this case, and, if it does, she should be permitted to amend her complaint to allege fraud; and 3) Her failure to file a post-conviction action based on the ineffectiveness of her counsel or a motion to withdraw her guilty plea does not bar her civil malpractice claim. We will not address these issues, except as they relate to the issues properly before us.

      . To the extent that appellant alleges her decision to plead guilty was based on incorrect or inadequate advise of counsel, her cause of action sounds in trespass and will be addressed below.

      . The INS did, in fact, initiate deportation proceeding against appellant in May of 1990.

      . We note that Pennsylvania law is the same as its federal counterpart on the issue of whether counsel is ineffective for failing to advise his client of the possibility of deportation. In Commonwealth v. Frometa, 520 Pa. 552, 555-56, 555 A.2d 92, 93-93 (1989), our Supreme Court stated:
      Similarly, a defendant’s lack of knowledge of the collateral consequences of pleading guilty does not undermine the validity of his guilty plea. Like the distinctions in the law regarding the waiver of the right to a jury trial, alluded to by Justice McDermott in [Commonwealth v.] Anthony [504 Pa. 551, 475 A.2d 1303 (1984) ], the collateral consequences of pleading guilty are both numerous and remote. Most importantly, they are irrelevant to the determination of whether a guilty plea was entered voluntarily and knowingly. Therefore, we now hold that counsel, in providing adequate assistance to a criminal defendant who is contemplating a guilty plea, is not required to advise a defendant of the collateral consequences of pleading guilty.
      Deportation is but one of a host of collateral consequences of pleading guilty. Thus, counsel in the present case was not ineffective for failing to advise [the defendant] of the possibility of deportation. (Footnotes and citations omitted.)
      Thus, we would reach the same result in the present case if appellant’s guilty plea were entered in state, rather than federal, court.

      . Moreover, based on the record before us, it is specious for appellant to argue that she was unaware of the possible consequence of deportation. As amply demonstrated in the plea memorandum filed in federal court, appellant knew the basis of the mail fraud charges was that she entered into a “sham” marriage in order to obtain a "green” card from the Immigration and Naturalization Service. The plea agreement also stated that the U.S. Attorney Office did not waive its right to oppose "any motion filed by defendant under 8 U.S.C. § 1251(b).” Under 8 U.S.C. § 1251(b), a defendant can, inter alia, file a motion requesting the sentencing court to recommend against deportation. Attorney Rogers, in fact, filed such a motion on behalf of appellant and discussed the case with Richard Sharkey of the INS, prior to appellant's sentencing. Even considering the present state of the record, it is patently unbelievable that appellant did not know that her guilty plea would negatively impact her right to remain in the United States.


author: HUDOCK, Judge:

text:
    616 A.2d 1036
    Helen Hollick SHEMORY, individually, and as assignee of Sylvia J. Klopp, Appellee, v. KEYSTONE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1992.
    Filed Nov. 24, 1992.
    Robert A. Gallagher, Williamsport, for appellant.

      John P. Campana, Williamsport, for appellee. (Submitted)
    Before ROWLEY, President Judge, and WIEAND and HUDOCK, JJ.
   HUDOCK, Judge:

Keystone Insurance Company (Keystone) appeals from the grant of summary judgment in favor of Helen Hollick Shemory (Shemory), and the denial, in part, of its motion for summary judgment in a civil action. We vacate the order and remand with instructions.

The facts and procedural history may be summarized as follows: On or about February 8, 1985, an automobile accident occurred between a vehicle driven by Shemory and another vehicle operated by Sylvia Klopp (Klopp). Keystone had been fraudulently induced into issuing an insurance binder to Klopp through her misrepresentations of her driving record. Keystone’s policy of insurance provided liability coverage in the amount of $50,000. Upon discovery of the fraudulent and material misrepresentations regarding Klopp’s driving record, Keystone rescinded its policy of insurance. The policy was rescinded within sixty days of the issuance of the binder.

Shemory commenced an action against Klopp seeking damages for injuries she allegedly suffered as a result of the accident. Klopp, through her counsel, settled this action for the sum of $75,000. As part of the settlement, Klopp assigned all her rights against Keystone to Shemory and agreed not to execute on any judgment against Klopp.

Klopp and her husband (the Klopps) thereafter commenced a declaratory judgment action, seeking a determination that Keystone was required to provide them with coverage under the policy of insurance issued to them. The trial court determined that the Klopps were entitled to coverage and awarded counsel fees to the Klopps. On appeal, a panel of this Court affirmed the trial court’s decision regarding the insurance coverage, but reversed that part of the trial court’s ruling awarding attorney’s fees to the Klopps. Klopp v. Keystone Insurance Companies, 378 Pa.Super. 605, 549 A.2d 221 (1988). Allocatur was subsequently granted and our Supreme Court reversed the decision of both the trial court and the affirmation by this Court, holding that the Klopps were not entitled to coverage under the insurance binder issued by Keystone, and, therefore, entering judgment in favor of Keystone. Klopp v. Keystone Insurance Companies, 528 Pa. 1, 595 A.2d 1 (1991).

Having settled with the Klopps, Shemory brought this action against Keystone, in her individual capacity as well as in her capacity as assignee of Klopp, demanding judgment in the sum of $75,000. After the decision in Klopp was filed, both parties in the present case filed for summary judgment. In her motion for summary judgment, Shemory requested that the trial court enter judgment in her favor on the basis of the concurring opinions in Klopp. Keystone filed a cross-motion for summary judgment on the ground that, under Klopp, Shemory was not entitled to maintain an action against Keystone either as the assignee of Klopp or individually. The trial court, holding that an assignee takes no greater rights than those possessed by the assignor, granted Keystone’s summary judgment motion insofar as it applied to Shemory as assignee, but denied the motion as to Shemory in her individual capacity.

The sole issue raised on appeal involves a question not answered, but alluded to, in Klopp, supra. Keystone states the issue:

A. WHETHER A PARTY INJURED IN AN AUTOMOBILE ACCIDENT CAN BRING A DIRECT ACTION AGAINST AN ALLEGED TORTFEASOR’S INSURANCE CARRIER WHEN THE INSURANCE POLICY WAS VOID AB INITIO FOR FRAUD IN THE APPLICATION.

Keystone’s Brief at p. 3. The trial court was presented with an issue involving the correct interpretation and application of Klopp, supra. We shall therefore discuss Klopp, the trial court’s interpretation of same, and then assess the interpretation given by the trial court.

As stated above, our Supreme Court in Klopp, supra, held that the Klopps, due to their fraudulent inducement, were not entitled to coverage under the insurance policy issued by Keystone without differentiating between first-party benefits or third-party coverage. In so holding, Chief Justice Nix, in an opinion in which Justice Zappala and Justice Papadakos joined, stated:

If we were to follow the interpretation urged upon us by the Klopps, a situation would result whereby insurers who are victimized by fraud could resort only to the prospective relief of cancellation without the ability to engage the retrospective relief of rescission. Consequently, in cases such as this, insurance carriers would be required to pay claims on policies procured by fraud. Such an absurd result must be avoided. 1 Pa.C.S. § 1922(1).

Klopp, at 7, 595 A.2d at 4 (footnote omitted). While joining the majority opinion, both Justices Larsen and Cappy filed separate concurring opinions. The brevity of Justice Larsen’s opinion allows for its reiteration in toto:

I join the majority opinion with the proviso that the fraudulent policyholder is estopped from making any personal claims arising out of the policy. Third parties [sic] suits and derivative suits are permitted.

Id., at 8, 595 A.2d at 5. Justice Cappy, recognizing that the issue was not before the Court, nevertheless opined that “overwhelming public policy considerations would dictate a different result where [claims of innocent, injured third parties] are involved.” Id. Justice Cappy explained that the Motor Vehicle Financial Responsibility Law, (MVFRL) 75 Pa.C.S. § 1701 et seq., (Purdon Supp.1992), is a mandate by the legislature that all owners of motor vehicles in Pennsylvania obtain liability insurance. Finding that this requirement is neither intended to protect the policyholder nor the insurance company, but rather, to protect the innocent and injured third-party public, Justice Cappy found that the common law concepts of third-party beneficiaries was inapplicable, and that the rights of the third-party beneficiaries would be considered original rather than derived from the rights of the insured. Justice Cappy believed that this result would be consistent with the “main concern of the legislature in enacting the MVFRL, that is, to protect the innocent and injured public.” Id In conclusion, Justice Cappy remarked:

Likewise, it would be preposterous to conclude that, with regard to innocent and injured third parties who participated in no way in the fraud perpetrated on the insurance company, the legislature would have intended that they be denied protection as a result of the policy holder’s fraud where the [MVFRL] itself has been created for their protection and benefit. Thus, it is my view that, with regard to innocent and injured third parties, the insurance company would be bound to honor the liability provisions of the insurance contract and may cancel said provisions only pursuant to [40 P.S. § 1008.5 Purdon (1992) ].

Id., at 9-11, 595 A.2d at 5-6. Justice McDermott filed a dissenting opinion, in which he stated his belief that recission was not available to insurance companies. Justice Flaherty concurred in the result of the majority opinion.

The trial court in the instant case, recognizing the discussion of the present issue in dicta in the concurring opinions, stated that there was no controlling appellate court decision on the precise issue. The trial court rejected Keystone’s arguments to the contrary and determined that third-party actions were viable in Pennsylvania. The trial court reasoned as follows:

[Keystone] claims that even if such a cause of action is viable, [Shemory] is not injured because she would be in the same position if the binder had never been issued. We disagree. At the time of the accident, Pennsylvania law required each motor vehicle registrant to certify that he or she was financially responsible at the time of registration or renewal thereof. 75 Pa.C.S.A. 1786. Furthermore, in certain situations involving traffic offenses and accidents, drivers were required to show proof of financial responsibility. 75 Pa.C.S.A. 1784, 1785. If a person failed to show such proof, the vehicle registration would be revoked and if the driver was the owner of the vehicle, his or her operating privileges would be suspended. A driver, to some extent, reasonably relies on these laws and believes that motorists will be insured. In addition, these laws increase the likelihood that persons without insurance will abstain from driving until they obtain insurance. Had Keystone not issued the binder to the Klopps, they might have either abstained from driving, or validly procured insurance from another company. Therefore, as compared to [Keystone], we find [Shemory] to be an innocent and injured third party.
Given the fact that an insurance company can protect itself by either cancelling a policy prospectively or by waiting to issue binders until it satisfies itself as to the accuracy of the representation in the application, we find that third party suits are viable and grant [Shemory’s] motion for partial summary judgment.

Trial Court Opinion, 1/22/92, at pp. 3-4. We are unpersuaded by the rationale of the trial court.

Despite the belief of the trial court that people will abstain from driving until they are able to obtain insurance, many drivers do not so abstain, and, even in the face of license revocations and penalties, operate motor vehicles without acquiring insurance. The legislature recognized that this problem could occur and, therefore, provided that insurance companies must offer for purchase to each applicant both uninsured and underinsured motorists coverage:

§ 1731. Availability, scope and amount of coverage
(a) Mandatory offering. — No motor vehicle liability insurance policy shall be delivered or issued for delivery in this Commonwealth, with respect to any motor vehicle registered or principally garaged in this Commonwealth, unless uninsured motorist and underinsured motorist coverages are offered therein or supplemental thereto in amounts as provided in section 1734 (relating to request for lower limits of coverage). Purchase of uninsured motorist and underinsured motorist coverages is optional.
(b) Uninsured motorist coverage. — Uninsured motorist coverage shall provide protection for persons who suffer injury arising out of the maintenance or use of a motor vehicle and are legally entitled to recover damages therefor from owners or operators of uninsured motor vehicles. The named insured shall be informed that he may reject uninsured motorist coverage by signing the following written rejection form:
(c) Underinsured motorist coverage. — Underinsured motorist coverage shall provide protection for persons who suffer injury arising out of the maintenance or use of a motor vehicle and are legally entitled to recover damages therefor from owners or operators of underinsured motor vehicles. The named insured shall be informed that he may reject underinsured motorists coverage by signing the following written rejection form:

75 Pa.C.S. § 1731(a), (b), (c) (Purdon Supp.1992) (forms omitted).

In Klopp, supra, a majority of our Supreme Court determined that common law recission was available to insurance companies within sixty days of issuance of the insurance binder and, therefore, once recission occurs, the particular insurance policy is void ab initio. Thus, when the accident at issue occurred, Klopp was an uninsured motorist. Moreover, the definition of the term “uninsured” indicates the legislature contemplated that the term would include scenarios where contracts of insurance are either rescinded or cancelled:

§ 1702. Definitions
The following words and phrases when used in this chapter shall have the meanings given to them in this section unless the context clearly indicates otherwise:
“Uninsured motor vehicle.” Any of the following:
(1) A motor vehicle for which there is no liability insurance or self-insurance applicable at the time of the accident.
(2) A motor vehicle for which the insurance company denies coverage or the insurance company is or becomes involved in insolvency proceedings in any jurisdiction.
(3) An unidentified motor vehicle that causes an accident resulting in injury provided the accident is reported to the police or proper governmental authority and the claimant notifies his insurer within 30 days, or as soon as practicable thereafter, that the claimant or his legal representative has a legal action arising out of the accident.

75 Pa.C.S. § 1702 (Purdon Supp.1992) (emphasis added).

As the above sections indicate, an “innocent and injured third party” is not left unprotected under the MVFRL unless he or she chooses explicitly to reject coverage in the event of injuries incurred by an uninsured or underinsured motorist. In the present case, a review of the record reveals that Shemory may have the optional uninsured and underinsured motorist coverage offered under her own policy and is not left, therefore, without a remedy. Thus, Shemory’s proper avenue of redress is her own insurance policy. In this way, Shemory is compensated for her injuries in a manner consistent with the provisions of the MVFRL, and the insurance company, an equally “innocent and injured” party, is not “victimized by fraud[.]” Klopp, at 7, 595 A.2d at 4.

The order granting Shemory summary judgment and denying, in part, Keystone’s motion for summary judgment is vacated. The matter is remanded to the trial court for the entry of summary judgment in favor of Keystone on Shemory’s claim in her individual capacity. Jurisdiction relinquished.

      . Initially, we must address Shemory's motion to quash the instant appeal as interlocutory. Indeed, Shemory's entire argument in her appellate brief consists of two paragraphs stating that Keystone is not placed out of court by the partial denial of its motion and that the grant of her own motion for summary judgment merely allows her to prove her suit. Under the circumstances of this case, we find the order of the trial court appealable. The trial court's order disposing of the cross-motions for summary judgment is unclear as to whether issues concerning Klopp’s negligence and the amount of Shemory’s damages are to go to trial, or whether the agreement entered into between Shemory and Klopp is controlling as to liability and damages. Keystone brought this matter to the trial court’s attention in a timely-filed motion for reconsideration. Because the motion was not acted upon, however, it is treated as denied. On its face, the grant of summary judgment in favor of Shemory entitles her to judgment as a matter of law. In her complaint, she demanded a sum certain, namely $75,000. Thus, the trial court's order seemingly grants judgment in favor of Shemory in the amount of $75,000. While the order does not enter this amount as a judgment, this fact does not affect its appealability. See Coyle v. Richardson-Merrell, Inc., 372 Pa.Super. 118, 538 A.2d 1379 (1988) (order granting summary judgment is final and need not be reduced to judgment in order to be appealed). Thus, we deny the motion to quash.

      . As identified by Justice Cappy, at common law, the rights of a third-party beneficiary can be no greater than those of the original parties to the contract. Klopp, at 8, n. 2, 595 A.2d at 5, n. 2.