author: McEWEN, Judge. POPOVICH, Judge,

text:
    660 A.2d 1350
    David J. KESELYAK and Norma Keselyak, his wife, Appellants, v. REACH ALL, INC. and Wajax, Ltd., Appellees.
    Superior Court of Pennsylvania.
    Argued Jan. 24, 1995.
    Filed June 16, 1995.

      Bruce J. Phillips, Pittsburgh, for appellants.
    Lewis S. Kunkel, Jr., Harrisburg, for Wajax, appellee.
    Before ROWLEY, President Judge, and McEWEN and POPOVICH, JJ.
   McEWEN, Judge.

This appeal has been taken from the entry of summary judgment in favor of appellees, Reach All Inc. and Wajax, Ltd., who were named as defendants in this products liability suit by appellants, David J. and Norma Keselyak, wherein appellants sought to recover damages for injuries sustained when the auger portion of a Pitman Polecat Digger fell on appellant, David Keselyak, on June 5, 1991. The Polecat Digger, which was owned by appellant’s employer, Pennsylvania Electric, had been manufactured by Pitman Manufacturing Co., Inc. (“Pitman”) and sold to Pennsylvania Electric by Pitman Manufacturing Company (“PMC”) as evidenced by a bill of sale dated February 22,1986. Appellants instituted the present action on June 2, 1993, naming only Reach All, Inc., and Wajax, Ltd. as defendants.

Appellants alleged in their complaint that Reach All, Inc., a Minnesota corporation which had purchased the Polecat Digger product line in 1989, was liable to appellants under the theory of corporate successor liability as “the successor in interest to the assets and business of Pitman Manufacturing Ltd. by sale from Wajax, Ltd.”. Appellants further alleged in their complaint that Wajax, Ltd., a Canadian corporation, was liable for the injuries sustained by appellant by virtue of being “the successor in interest to the assets and business of Pitman Manufacturing Ltd.”. Appellants also alleged that the defendants, Reach All, Inc., and/or Wajax, Ltd. manufactured, sold, serviced, and/or maintained the Pitman Polecat Digger which injured appellant.

Appellees filed a joint motion for summary judgment on November 15, 1993, alleging that they were entitled to judgment in their favor as a matter of law as to all claims contained in appellants’ complaint since:

the only relationship between Pitman Manufacturing Co., Inc. (“Pitman”), a Canadian corporation, Pitman Manufacturing Company, Inc. (“PMC”), a Pennsylvania corporation, and Wajax, Ltd. (“Wajax”) was the direct or indirect ownership of stock.

Appellees further alleged in their motion for summary judgment:

that Pitman was, until 1989, engaged in the business of the manufacture and sale of equipment for the utility industry;
that PMC was, until 1989, engaged in the sale of replacement parts for equipment manufactured by Pitman;
that Pitman and PMC, although separate corporate entities, were wholly owned by Wajax, Ltd., a Canadian corporation; and
that Reach All, Inc., a Minnesota corporation, entered into an asset purchase agreement with Pitman, PMC, and Wajax, Ltd., dated December 5,1989, whereby, in exchange for approximately 2.5 million dollars, the utility manufacturing business, its assets, and the exclusive right to manufacture and sell digger derricks known as “Polecats”, was sold to Reach All, Inc.

Appellees requested judgment in their favor, claiming that Reach All could not be liable to appellants since the Polecat Digger which malfunctioned and injured appellant was manufactured and sold prior to Reach All’s purchase, in 1989, of the utility manufacturing business.

Appellees also argued that Wajax, Ltd., could not be liable for any damages caused by a digger manufactured by Pitman since, although Pitman was a wholly owned subsidiary of Wajax, the only connection between the two corporations was the ownership of stock. Appellants, in response to the motion argued that Reach All was subject to liability as a successor corporation under the product line exception and that Wajax was also a proper defendant as a result of the provisions of Section 226 of the Canadian Business Corporations Act.

The learned Judge John M. Cascio, in granting the motion for summary judgment as to defendant Reach All, a Minnesota corporation, concluded that Reach All was not subject to suit as a successor corporation due to the continued existence of Pitman, the Canadian corporation which manufactured the Polecat Digger at issue in 1986 and which was not dissolved, pursuant to the Canadian Business Corporations Act, until December 15, 1992 as well as by the continued existence of PMC, the Pennsylvania corporation which had sold replacement parts for equipment manufactured by Pitman, and which may have sold the Polecat Digger at issue to Pennsylvania Electric.

The trial court granted summary judgment in favor of Wajax based upon the provisions of the Canadian Business Corporations Act which the court found required that suit be instituted against Pitman on or before December 15,1994, the second anniversary date of the dissolution of Pitman, in order to reach any assets distributed from Pitman to Wajax. Although appellants argue that the Canadian Business Corporations Act permits a direct action on an unliquidated claim against any individual or entity which has received assets pursuant to the dissolution, we are not persuaded that the trial court committed an error of law in rejecting this argument.

Our scope of review, in ruling upon a motion for summary judgment, is plenary. Rule 1035(b) provides that summary judgment “shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law”. Rule 1035(d) provides that “when a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial”.

“The moving party has the burden of proving the nonexistence of any genuine issue of material fact.” Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 202-204, 412 A.2d 466, 468-469 (1979). “The record must be viewed in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.” Marks v. Tasman, 527 Pa. 132, 135, 589 A.2d 205, 206 (1991). Accord: Commonwealth, Dept. of Environmental Resources v. Bryner, 149 Pa.Cmwlth. 59, 62-64, 613 A.2d 43, 45 (1992).

The product line theory is an exception to the general rule that “when one company sells or transfers all of its assets to a successor company, the successor does not acquire the liabilities of the transferor corporation merely because of its succession to the transferor’s assets.” Dawejko v. Jorgensen Steel Co., 290 Pa.Super. 15, 18, 434 A.2d 106, 107 (1981). Accord Hickman v. Thomas C. Thompson Co., 592 F.Supp. 1282, 1283-84 (D.Colo.1984) (discussing Colorado law): Ra mirez v. Amsted Industries, Inc., 86 N.J. 332, 340, 431 A.2d 811, 815 (1981). It was developed by the California Supreme Court in Ray v. Alad Corp., 19 Cal.3d 22, 560 P.2d 3, 136 Cal.Rptr. 574 (1977), and has been adopted by the courts of New Jersey and Pennsylvania. See Ramirez, 86 N.J. at 358, 431 A.2d at 824-25; Dawejko, 290 Pa.Super. at 23-26, 434 A.2d at 110-11; see also Hickman, 592 F.Supp. at 1284-86 (predicting that Colorado would adopt the product line exception).
The product line exception provides that:
[W]here one corporation acquires all or substantially all the manufacturing assets of another corporation, even if exclusively for cash, and undertakes essentially the same manufacturing operation as the selling corporation, the purchasing corporation is strictly liable for injuries caused by defects in units of the same product line, even if previously manufactured and distributed by the selling corporation or its predecessor.
Ramirez, 86 N.J. at 358, 431 A.2d at 825; see also Hickman, 592 F.Supp. at 1284 (citing Ramirez formulation); Dawejko, 290 Pa.Super. at 23-26, 434 A.2d at 110-11 (citing and adopting same). Its purpose is to serve the social policies underlying strict products liability. E.g., Ramirez, 86 N.J. at 358, 431 A.2d at 825; Dawejko, 290 Pa.Super. at 26, 434 A.2d at 111. In accordance with this purpose, the California Supreme Court in Ray articulated three circumstances justifying the imposition of liability on a successor corporation under the product line exception:
(1) the virtual destruction of the plaintiffs remedies against the original manufacturer caused by the successor’s acquisition of the business, (2) the successor’s ability to assume the original manufacturer’s risk-spreading role, and (3) the fairness of requiring the successor to assume a responsibility for defective products that was a burden necessarily attached to the original manufacturer’s good will being enjoyed by the successor in the continued operation of the business.
19 Cal.3d at 31, 560 P.2d at 8-9, 136 Cal.Rptr. at 579-80. The New Jersey and Pennsylvania courts have held that the existence of these three circumstances is an important, see Ramirez, 86 N.J. at 349-53, 431 A.2d at 820-22, although not necessarily the requisite or exclusive consideration, see Dawejko, 290 Pa.Super. at 26, 434 A.2d at 111, in determining whether the product line exception applies.

Shorb v. Airco, Inc., 644 F.Supp. 923, 927-928 (E.D.Pa.1986) (footnote omitted).

Appellant does not dispute that, following the transfer of those assets of Pitman and PMC involved in the utility manufacturing line, including the right to manufacture and sell diggers known as “Polecats”, Pitman and PMC remained viable, insured entities, Pitman being dissolved, pursuant to Canadian law, on December 15, 1992, and PMC remaining a viable corporation through the date of the filing of the complaint in the instant action. The trial court concluded, in conformity with appellate case law, that the continued existence of a viable cause of action against Pitman and PMC precluded application of the product line exception so as to permit suit against Reach All, a company which had had no part in the manufacture, sale, or servicing of the Polecat Digger.

In Conway v. White Trucks, Div. of White Motor Corp., 885 F.2d 90 (3d Cir.1989), we reviewed in detail the asserted bases for the product line exception to the general rule of non-liability of a successor corporation. Although the Supreme Court of Pennsylvania had not addressed the issue, for purposes of discussion we assumed that Dawejko represented Pennsylvania law. We predicted, however, that the exception would not apply “where the claimant had a potential remedy against the original manufacturer, but failed to exercise all available means to assert his or her claim....
[AJs a logical matter, the loss of a remedy against the original manufacturer must be a prerequisite to the invocation of the product line exception.” Id. at 95, 434 A.2d 106. That is because the rationale of the product line exception is that “the virtual destruction of the plaintiffs remedies against the original manufacturer [was] caused by the successor’s acquisition.” Id. at 97, 434 A.2d 106.
Nothing has happened since Conway was decided to indicate any weakening of its holding. In South Bend Lathe, Inc. v. Amsted Indus., 925 F.2d 1043, 1047 (7th Cir.1991), the Court of Appeals for the Seventh Circuit said, “The continuation of the predecessor corporation bars recovery from the successor under the product line rule in every decision we have found that considers the issue.”

LaFountain v. Webb Industries Corp., 951 F.2d 544, 547 (3rd Cir.1991) (emphasis supplied).

As the Conway court noted, almost every court that has addressed the issue has “emphasized” the “requirement that the asset transfer must have caused the destruction of plaintiffs remedy.” Id. at 95, 434 A.2d 106. See Santa Maria v. Owens-Illinois, Inc., 808 F.2d 848, 859 (1st Cir. 1986); Nelson v. Tiffany Industries, Inc., 778 F.2d 533, 538 (9th Cir.1985); Kline v. Johns-Manville, 745 F.2d 1217, 1220 (9th Cir.1984); Tracey by Tracey v. Winchester Repeating Arms Co., 745 F.Supp. [1099] at 1108 [ (E.D.Pa.1990) ]; Hack v. H.V.R. Parts, Inc., 742 F.Supp. [283] at 285 [ (W.D.Pa.) ]; In re Related Asbestos Cases, 578 F.Supp. 91, 92 (N.D.Cal.1983); Hall v. Armstrong Cork, Inc., 103 Wash.2d 258, 692 P.2d 787, 791 (1984); Ray v. Alad Corp., 19 Cal.3d at 31, 136 Cal.Rptr. at 580, 560 P.2d at 9. As the court in Tracey noted, the causation element has been emphasized because “in order for the product line exception to be consistent with the policies which underlie strict liability in tort ... the conduct of the successor corporation must have some reasonable connection with the claimant’s injuries.” Id., 745 F.Supp. at 1108.

LaFountain v. Webb Industries Corp., 759 F.Supp. 236, 241 (E.D.Pa.1991), aff’d 951 F.2d 544 (3rd Cir.1991). Thus, since the sale of the utility manufacturing line did not destroy any remedies against Pitman or PMC, the argument of appellants that the trial court erred in granting summary judgment in favor of Reach All, Inc., must be rejected as meritless.

Nor do we find any error in the ruling of the trial court that a direct action could not be maintained against Wajax, Inc., as the “successor in interest to the assets and business of Pitman Manufacturing, Ltd”. Section 226 of the Canadian Business Corporations Act provides:

Sec. 226. Definition of “shareholder”. — (1) In this section, “shareholder” includes the heirs and legal representatives of a shareholder.
(2) Continuation of actions. — Notwithstanding the dissolution of a body corporate under this Act,
(a) a civil, criminal or administrative action or proceeding commenced by or against the body corporate before its dissolution may be continued as if the body corporate had not been dissolved;
(b) a civil, criminal or administrative action or proceeding may be brought against the body corporate within two years after its dissolution as if the body corporate had not been dissolved (emphasis supplied); and
(c) any property that would have been available to satisfy any judgment or order if the body corporate had not been dissolved remains available for such purpose.
(3) Service. — Service of a document on a corporation after its dissolution may be effected by serving the document on a person shown in the last notice filed under section 106 or 113.
(4) Reimbursement. — Notwithstanding the dissolution of a body corporate under this Act, a shareholder to whom any of its property has been distributed is liable to any person claiming under subsection (2) to the extent of the amount received by that shareholder on such distribution, and an action to enforce such liability may be brought within two years after the date of the dissolution of the body corporate.
(5) Representative action. — A court may order an action referred to in subsection (4) to be brought against the persons who were shareholders as a class, subject to such conditions as the court thinks fit and, if the plaintiff establishes his claim, the court may refer the proceedings to a referee or other officer of the court who may
(a) add as a party to the proceedings before him each person who was a shareholder found by the plaintiff;
(b) determine, subject to subsection (4), the amount that each person who was a shareholder shall contribute towards satisfaction of the plaintiffs claim; and
(c) direct payment of the amounts so determined.

Pitman was dissolved on December 15, 1992, pursuant to Section 210 of the Canadian Business Corporations Act.

Section 226(4) of the Canadian Business Corporations Act provides claimants the right to bring an action “against the body corporate within two years after its dissolution as if the body corporate had not been dissolved”. RSC Chapter C-44, Section 226, Subsection 2 (emphasis supplied). Appellants argue that, although Section 226(2)(b) authorized suit against Pitman until December 15, 1994, Section 226(4) permitted a direct action on their unliquidated claim against Wajax as “a shareholder to whom ... property has been distributed”, without first proceeding against Pitman. We have been unable to locate any Canadian case law to support the interpretation of the Act urged upon us by appellants and find, based upon our reading of the entire Act, that the trial court properly concluded that unliquidated claims must first be reduced to a judgment against the dissolved corporation before “reimbursement” is sought pursuant to Section 226(4).

Appellants’ final argument is that the holding of Nanty-Glo Borough v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932), precludes the entry of summary judgment in favor of Wajax since there remains a disputed issue of material fact as to the identity of the corporate entity which manufactured the Pitman Polecat Digger.

Since Bremmer [v. Protected Home Mutual Life Ins. Co., 436 Pa. 494, 260 A.2d 785 (1970) ] there have been numerous cases addressing the Nanty-Glo doctrine in the context of summary judgments. See, e.g., Penn Center House, Inc. v. Hoffman, [520 Pa. 171, 553 A.2d 900 (1989) ] supra; Thompson Coal Co. v. Pike Coal Co., supra; Johnson v. Johnson, [410 Pa.Super. 631, 631, 600 A.2d 965 (1991) ] supra; Garcia v. Savage, [402 Pa.Super. 324, 586 A.2d 1375 (1991) ] supra; Troy v. Kampgrounds of America, Inc., [399 Pa.Super. 41, 581 A.2d 665 (1990) ] supra. A review of these cases demonstrates that there is an inherent three-step process involved in determining whether the Nanty-Glo rule applies so as to preclude a grant of summary judgment. Initially, it must be determined whether the plaintiff has alleged facts sufficient to establish a prima facie case. If so, the second step is to determine whether there is any discrepancy as to any facts material to the case. Finally it must be determined whether, in granting summary judgment, the trial court has usurped improperly the role of the jury by resolving any material issues of fact.
It is only when the third stage is reached that Nanty-Glo comes into play. Thus, it is true that Nanty-Glo precludes summary judgment where the moving party relies solely upon testimonial affidavits and depositions of his witnesses to resolve material issues of fact. However, if there are no material issues of fact, or if the non-moving party has failed, in the first instance, to allege facts sufficient to make out a prima facie case, then summary judgment may be granted properly, even if the moving party has only set forth the pleadings and depositions of his witnesses in support thereof. Hence the language of Pa.R.C.P. 1035, which provides that “[ajfter the pleadings are closed, but within such time as not to delay trial, any party may move for summary judgment on the pleadings and any depositions, answers to interrogatories, admissions on file and supporting affidavits.” Pa.R.C.P. No. 1035(a). Error only occurs if the moving party, in relying upon the testimonial affidavits of his witnesses, is attempting to resolve a material issue of fact, or more importantly, is attempting to demonstrate the lack of any material issues of fact by asserting that the testimony of his witnesses is uncontradicted.
If there are no material issues of fact in dispute, and plaintiff has failed to allege facts sufficient to make out a prima facie case, as a matter of law, then summary judgment may be granted properly. Such was the result reached by our supreme court in Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979). When confronted with appellant’s argument that the trial court erred in granting summary judgment, in light of Bremmer, supra, 436 Pa. 494, 260 A.2d 785, and Nanty-Glo, supra, 309 Pa. 236, 163 A. 523, the court concluded:
We have no credibility issue here. Assuming everything that appellants argue is accepted as pristine truth, appellants fail to make out a prima facie case as a matter of law, not as a matter of fact.

Thompson Coal Co., 488 Pa. at 213-14, 412 A.2d at 474. Dudley v. USX Corporation, 414 Pa.Super. 160, 168-70, 606 A.2d 916, 920 (1992), allo. denied, 532 Pa. 663, 616 A.2d 985 (1992) (footnote omitted).

Appellants, in their complaint, alleged, inter alia:
SECOND: The defendant, Reach All, Inc., is a Minnesota corporation having its principal place of business at 1300 Port Terminal Road, Duluth, Minnesota 55802, and regularly doing business in Somerset County, Pennsylvania. Reach All, Inc., is the successor in interest to the assets and business of Pitman Manufacturing, Ltd., by sale from Wajax, Ltd. (emphasis supplied)
THIRD: The defendant, Wajax, Ltd., is a Canadian corporation having its principal place of business at 350 Sparks Street, Ottawa, Ontario, Canada KIR 758 and regularly doing business in Somerset County, Pennsylvania. Wajax, Ltd., is the successor in interest to the assets and business of Pitman Manufacturing, Ltd. (emphasis supplied)
FOURTH: On or about June 5, 1991, the husband-plaintiff, a lineman for Pennsylvania Electric, was working on a line crew removing the top of an old utility pole in Salisbury, Somerset County, Pennsylvania. For this purpose the husband-plaintiff was working with a Pitman Polecat Digger, Model PC1342T, (hereinafter “digger”) manufactured, sold and distributed by the defendants. The machine is used to remove old utility poles. On the date in question, part of the digger, a 1200 pound auger, fell from its secured position, striking the husband-plaintiff in the back and causing him serious and severe injuries, (emphasis supplied)
FIFTH: The digger was manufactured and sold by the defendants, Reach All, Inc., and/or Wajax, Ltd. Defendants Reach All, Inc., and/or Wajax, Ltd., also serviced and maintained said machine at all times relevant hereto. (emphasis supplied)

Appellees in their Answer and New Matter denied that Wajax and Reach All had any involvement with the manufacture, sale, or servicing of the Polecat Digger and, in new matter, alleged the following facts:

33. On information and belief, the digger was manufactured by Pitman Manufacturing Co., Inc., a Canadian corporation (“Pitman”) and sold to Pennsylvania Electric by Pitman Manufacturing Company, Inc., now known as Pit-man Crane Company, Inc., a Pennsylvania corporation (“PMC”), in or around January/February 1986.
34. Reach All purchased some of the assets, but no relevant liabilities of Pitman and PMC, on or about October 31, 1989 (“Partial Asset Sale”).
35. While Pitman and PMC were owned directly or indirectly by Wajax at the time of the Partial Asset Sale, they were separate and independent corporations.
36. Pitman did not maintain or service the digger after its sale to Pennsylvania Electric.
37. On information and belief, PMC did not maintain or service the digger after its sale to Pennsylvania Electric.
38. On information and belief, neither Pitman nor PMC manufactured or sold parts for the digger to Pennsylvania Electric.
39. Neither Reach All nor Wajax serviced or maintained the digger.
40. Wajax is not a successor in interest to the assets, relevant liabilities, and business of either Pitman or PMC.
41. Reach All is not a successor in interest to all of the assets, or all of the business, or any relevant liabilities of either Pitman or PMC.

Appellees’ answer with new matter, endorsed with a notice to plead, was filed on July 28, 1993. Appellants’ response to new matter was required to be filed on or before August 17, 1993. Appellants, however, failed to respond to the factual averments in the new matter filed by appellees and, on November 15, 1993, appellees filed their motion for summary judgment which is the subject of the instant appeal, believing that there was no dispute over the identity of the manufacturer. More than two months later, on January 26, 1994, appellants filed the following untimely response to appellants’ new matter:

33. This is a factual averment which requires no response. Nevertheless, after reasonable investigation, plaintiffs are without knowledge or information sufficient to form a belief as to the truth of this averment. Moreover, an officer of defendant Wajax, Inc., has represented that said defendant manufactured and sold the digger in question, (emphasis supplied)
34. This is a factual averment which requires no response. Nevertheless, after reasonable investigation, plaintiffs are without knowledge or information sufficient to form a belief as to the truth of this averment, (emphasis supplied)
35. This is a factual averment which requires no response. Nevertheless, after reasonable investigation, plaintiffs are without knowledge or information sufficient to form a belief as to the truth of this averment, (emphasis supplied)
36. This is a factual averment which requires no response. Nevertheless, after reasonable investigation, plaintiffs are without knowledge or information sufficient to form a belief as to the truth of this averment, (emphasis supplied)
37. This is a factual averment which requires no response. Nevertheless, after reasonable investigation, plaintiffs are without knowledge or information sufficient to form a belief as to the truth of this averment, (emphasis supplied)
38. This is a factual averment which requires no response. Nevertheless, after reasonable investigation, plaintiffs are without knowledge or information sufficient to form a belief as to the truth of this averment, (emphasis supplied)
39. This is a factual averment which requires no response. Nevertheless, after reasonable investigation, plaintiffs are without knowledge or information sufficient to form a belief as to the truth of this averment, (emphasis supplied)
40. This is a legal conclusion based on factual averments which, after reasonable investigation, plaintiffs are without knowledge or information sufficient to form a belief as to the truth of said facts. Without waiving the above, plaintiffs deny that Wajax is not the successor in interest, as defined in law, to Pitman and/or PMC and aver affirmatively that Wajax is the successor to the entire business of manufacturing and selling Polecat Diggers including physical assets, goodwill, trademarks and tradenames, sales organization and assets and all other assets necessary to be the successor to Pitman and/or PMC as necessary to establish successor liability.
41. This is a legal conclusion based on factual averments which, after reasonable investigation, plaintiffs are without knowledge or information sufficient to form a belief as to the truth of said facts. Without waiving the above, plaintiffs deny that Reach All is not the successor in interest, as defined in law, to Pitman and/or PMC and aver affirmatively that Reach All is the successor to the entire business of manufacturing and selling Polecat Diggers including physical assets, goodwill, trademarks and tradenames, sales organization and assets and all other assets necessary to be the successor to Pitman and/or PMC as necessary to establish successor liability.

Contrary to the representations of appellants, factual averments do require a response or they are deemed admitted. See: First Wisconsin Trust Co. v. Strausser, 439 Pa.Super. 192, 199, 653 A.2d 688, 692 (1995); Vintage Homes Inc. v. Levin, 382 Pa.Super. 146, 151-53, 554 A.2d 989, 992 (1989), allo. denied, 524 Pa. 622, 571 A.2d 384 (1989). Rule 1029 of the Rules of Civil Procedure provides:

(a) A responsive pleading shall admit or deny each averment of fact in the preceding pleading or any part thereof to which it is responsive. A party denying only a part of an averment shall specify so much of it as is admitted and shall deny the remainder. Admissions and denials in a responsive pleading shall refer specifically to the paragraph in which the averment admitted or denied is set forth.
(b) Averments in a pleading to which a responsive pleading is required are admitted when not denied specifically or by necessary implication. A general denial or a demand for proof, except as provided by subdivision (c) of this rule, shall have the effect of an admission.

Pa.R.Civ.P. 1029(a)(b), 42 Pa.C.S. (emphasis supplied).

The claim of appellants that the trial court committed Nanty-Glo error, when it resolved the issue of the identity of the manufacturer of the Polecat Digger, ignores the failure of appellants to respond to the allegations of appellees’ new matter until months after the filing of the motion for summary judgment, and the subsequent failure of appellants to properly deny the factual averments contained in the new matter. The trial court, of course, could well have proceeded to the entry of summary judgment in favor of appellees by reason of this failure of appellants. Since the trial court did not rely upon this failure as a basis for the entry of summary judgment, we, as well, will overlook these pleading deficiencies. However, because

[t]he record must be viewed in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, Marks v. Tasman, supra, 527 Pa. at 135, 589 A.2d at 206, and
[ejrror only occurs if the moving party, in relying upon the testimonial affidavits of his witnesses, is attempting to resolve a material issue of fact, or more importantly, is attempting to demonstrate the lack of any material issues of fact by asserting that the testimony of his witnesses is uncontradicted, Dudley v. USX Corporation, supra, 414 Pa.Super. at 169, 606 A.2d at 920,

we will vacate the judgment as to Wajax Inc. only, and remand the record so as to permit appellants the opportunity to produce documentary evidence to establish that Wajax, Inc., did manufacture, retail, distribute, or service the Pitman Polecat Digger at issue.

Judgment entered in favor of Reach All, Inc., affirmed. Judgment entered in favor of Wajax, Inc., vacated and case remanded for further proceedings on the motion for summary judgment. Jurisdiction relinquished.

POPOVICH, J., files a concurring and dissenting statement.

POPOVICH, Judge,

concurring and dissenting:

I concur in the majority’s finding that summary judgment was properly entered in favor of Reach All, Inc. However, I feel that the judgment entered in favor of Wajax, Inc. should also be affirmed because appellants did not deny the factual allegations in appellees’ new matter. Our Rules of Civil Procedure mandate that the factual averments in appellees’ new matter be deemed admitted because of appellants’ untimely response. Thus, I believe that summary judgment in favor of appellee Wajax, Inc. would have been proper because of appellant’s procedural defects.

      . The documents produced by appellees in support of their motion for summary judgment indicate that the president of Wajax was also the president of Pitman and PMC.

      . The bill of sale for the Polecat Digger, although listing the seller as Pitman, listed the York, Pennsylvania address of PMC.

      . The argument of appellants that, because there is no viable cause of action against Wajax or PMC, Reach All is subject to successor liability under the product line exception is not well taken. Appellants could have instituted suit against Pitman and PMC within the statute of limitations and recovered any judgment obtained in that action from Wajax.

      . We emphasize that the sole issue to be presented to the court on remand in the continuation of the summary judgment proceeding is whether Wajax Inc. is liable to appellants as the actual manufacturer, supplier, retailer, or servicer of the Polecat Digger.


source: Caselaw Access Project

author: HUDOCK, Judge: TAMILIA, Judge,

license: Public Domain

text:
    660 A.2d 1359
    Diedre KAZOS and Katherine Georges, Appellants, v. Anthony DIAKAKIS and Katy Diakakis, his wife, Appellees.
    Superior Court of Pennsylvania.
    Submitted Feb. 28, 1995.
    Filed June 26, 1995.

      Sanford S. Finder, Washington, for appellants.
    Nelson B. Gaugler, Pittsburgh, for appellees.
    Before TAMILIA, JOHNSON and HUDOCK, JJ.
   HUDOCK, Judge:

This is an appeal from the order of the Court of Common Pleas of Washington County which sustained Appellees Anthony and Katy Diakakis’ preliminary objections for lack of jurisdiction over the subject matter. We affirm.

The facts and procedural history of this matter may be summarized as follows: Nicholas Diakakis, who died while a resident of Greece, owned real estate situate on the island of Rhodes. Diakakis had four children, Appellee Anthony Diakakis, Appellant Katherine Georges, Marsha Stamatakis, and one who was deceased at the time of his death. The deceased child had two children of her own, including Appellant Diedre Kazos. Appellee Anthony Diakakis, acting as attorney-in-fact for the above mentioned heirs of Diakakis, sold the real estate on the island of Rhodes for an equivalent of $72,000.00. Appellee Anthony Diakakis placed the money into bonds, see Exhibit E, and deposited them into an account in Greece which earned twenty percent interest. Appellee Anthony Diakakis allegedly attempted to bring the bonds into the United States, however, they were seized at customs and were returned to Greece. On or about September 9, 1993, Appellants filed a complaint against Appellees seeking to enforce a “constructive trust and obtain an order requiring [Appellees] to immediately return the bonds and their proceeds to Washington County, Pennsylvania and account therefore and disburse the same and pay any losses occasion[ed] by their handling of the matter.” Complaint, ¶ 11. Appellees filed seven preliminary objections to the complaint. The trial court, addressing only one of the objections, found that it lacked jurisdiction to hear the case. In sustaining the preliminary objection the trial court stated:

[Appellants] are claiming a financial interest in bonds which are located in Greece. Pa.C.S.A. § 5304 provides that the tribunals of this Commonwealth have jurisdiction over documents situated within this Commonwealth whether or not the persons owning or claiming interest therein are subject to the jurisdiction of the tribunals of this Commonwealth. The statute does not provide for documents which are not located within the Commonwealth. The bonds in question here are not now and have never been located in this Commonwealth. Therefore, we do not have jurisdiction over the bonds which are presently located in Greece and [cannot] impose a constructive trust over them.

Order, 8/22/94, at pp. 1-2. This appeal followed.

In their appeal, Appellants first assert that 42 Pa.C.S.A. § 5304 cannot be read to exclude subject matter jurisdiction where the trial court otherwise has personal jurisdiction over the parties. Section 5304 provides:

§ 5304. Documents
The tribunals of this Commonwealth shall have jurisdiction over documents situated within this Commonwealth whether or not the persons owning or claiming interests therein are subject to the jurisdiction of the tribunals of this Commonwealth.

42 Pa.C.S.A. § 5304. In essence, Appellants aver, without further discussion, that the trial court erred in drawing the negative inference from this section that the trial court did not have jurisdiction over documents which were not located in the Commonwealth. Appellants aver that since Appellee Anthony DiakaMs is a fiduciary to Appellants, and that he has control over the personal property (the bonds), the trial court should be able to entertain this action. Moreover, Appellants argue that despite the location of the res in question, they have filed their action in a court of equity and that court “has the power to compel a Defendant to do all necessary things which he could do voluntarily, to give effect to the decree against him.” Appellants’ Brief, at p. 12.

Pennsylvania Rule of Civil Procedure 1028 prescribes that preliminary objections may be granted on the ground that there is a “lack of jurisdiction over the subject matter of the action or the person of the defendant.]” Pa.R.C.P. 1028(a)(1), 42 Pa.C.S.A. “When a party uses a preliminary objection in the nature of a petition raising a question of subject matter jurisdiction, the court’s function is to determine whether the law will bar recovery due to the lack of such jurisdiction.” Philadelphia Housing Authority v. Barbour, 405 Pa.Super. 140, 143, 592 A.2d 47, 48 (1991), aff’d., 532 Pa. 212, 615 A.2d 339 (1992).

Appellants’ claims are without merit, and thus, we affirm the order of the trial court. The trial court properly interpreted 42 Pa.C.S.A. section 5304. By negative inference, it can be said that the Commonwealth does not have jurisdiction over documents situated outside of the Commonwealth. Moreover, this inference is correct given the general proposition that “a court cannot exercise in rem jurisdiction over property outside its own state.” Taddei v. Taddei, 299 Pa.Super. 318, 322, 445 A.2d 773, 775 (1982). In their prayer for relief, Appellants requested a disbursement of the money held in the Greek bonds or that a constructive trust be imposed upon Appellees for the amount of the bonds. Thus, in essence, the primary issue before the trial court, as presented in Appellants’ complaint, is what is to become of the bonds. Because the bonds are located in Greece, a location clearly outside of this Commonwealth, the trial court properly determined that it did not have jurisdiction to render a decision affecting them.

Finally, we add that merely because Appellants filed their claim in equity and because Appellees were residents of Washington County does not impose upon that court jurisdiction to hear the dispute. In support of their position, Appellants cite Cohn v. Weiss, 356 Pa. 78, 51 A.2d 740 (1947), which states:

When a court acts in personam, ... it is not restricted by geographical boundary lines. 30 C.J.S., Equity, sec. 81, page 439, makes this statement: “The general rule is that, where a court of equity has jurisdiction of the person of defendant, it may render any appropriate decree acting directly on the person, even though the subject matter affected is outside the jurisdiction; a decree does not operate directly on a res which is beyond the territorial jurisdiction of the court, but the court may, acting in personam, coerce action respecting it.” 30 C.J.S., Equity, sec. 82, p. 441, lays down this principle: “A court of equity * * * may compel action with respect to land which lies beyond its jurisdiction, as by conveyance thereof, provided it can enforce its decree by the exercise of its powers over the persons before it.”

Cohn, 356 Pa. 78, 51 A.2d at 744. However, the Court added:

‘Where the necessary parties are before a court of equity, it is immaterial that the res of the controversy, whether it be real or personal property, is beyond the territorial jurisdiction of the tribunal. It has the power to compel the defendant to do all things necessary, according to the lex loci rei sitae, which he could do voluntarily, to give effect to the decree against him. Without regard to the situation of the subject-matter, such courts consider the equities between the parties, and decree in personam according to those equities, and enforce obedience to their decrees by process in personam.’[]

Id. at 745 (quoting Schmaltz v. York Manufacturing Company, 204 Pa. 1, 53 A. 522 (1902)).

Given the rationale of Cohn, we find that the trial court sitting in equity could not compel Appellees to act in relation to the bonds located in Greece. The trial court could not enter an order which would compel Appellees to act “voluntarily” in relation to the bonds. The record reveals that the land on the island of Rhodes that was sold by Appellees may be the subject of future litigation in Greece. Thus, if the title to the land is not found to be clear, Appellees will have to return the money to the buyer. See Exhibit D. Moreover, in a memorandum from the American Embassy in Athens, Greece, there is a detailed explanation of how foreigners may remove funds from Greece that are received through the sale of property. See Exhibit F. Thus, the trial court cannot compel Appellees to act in relation to the bonds when it is the law of Greece that controls the distribution of the bonds.

Order affirmed.

TAMILIA, J., files a dissenting opinion.

TAMILIA, Judge,

dissenting:

I respectfully dissent in order to address what I believe to be the majority’s fundamental misapplication of Pennsylvania jurisdictional law. Not only does the majority draw a completely unwarranted and improper negative inference from 42 Pa.C.S. § 5304, but it also mistakenly holds that in rem jurisdiction over the Greek bonds is necessary to an adjudication of appellants’ claims. To the contrary, the following review of Pennsylvania and national authority clearly demonstrates that in personam jurisdiction, which the trial court undeniably possessed over the parties, was sufficient to empower an adjudication of this action, despite the fact that a foreign res might ultimately be affected.

Initially, the Order of the trial eourt granting appellees’ preliminary objections and dismissing appellants’ action for want of subject matter jurisdiction is premised solely on section 5304, which provides:

§ 5304. Documents
The tribunals of this Commonwealth shall have jurisdiction over document which are within this Commonwealth whether or not the persons owning or claiming interests therein are subject to the jurisdiction of the tribunals of this Commonwealth.

The trial court and the majority draw a negative inference from this section and conclude that it mandates the dismissal of appellants’ complaint because the bonds in question are not located within the Commonwealth, despite the fact that the lower court clearly had jurisdiction over both parties. This construction is not only unwarranted and unsupportable but it is explicitly belied by the legislative history of section 5304 and Pennsylvania case law.

The object of statutory construction is to “ascertain and effectuate the intention of the General Assembly.” 1 Pa.C.S. § 1921. Section 5304 was taken verbatim from Mich.S.A. 27A.761. See Source Note to SB 935, PA House of Representatives, Legislative Journal, June 29, 1976, p. 5857. In turn, section 27A.761 was taken verbatim from Restatement, Conflict of Laws, § 103, which became section 61 of the Second Restatement. See Practice Comment to § 761, 32 Michigan Compiled Laws Annotated, 600.761. Section 61 appears in Chapter 3, the jurisdictional chapter of the Restatement, under the heading “Judicial Jurisdiction Over Things.” The other relevant heading under Chapter 3 is “Judicial Jurisdiction Over Persons.” The Introductory Note to Chapter 3 describes these headings as “the various bases for the existence of judicial jurisdiction in a state.” (Emphasis added.)

Thus, section 61, the prototype to section 5304, was conceived as a basis of “jurisdiction over things,” a basis alternative to the bases provided for obtaining “jurisdiction over persons.... ” The section cannot therefore be read as preeluding the proper exercise of “jurisdiction over persons” merely because that exercise will ultimately effect a foreign document. In short, the power of the court in this case is premised on its “jurisdiction over persons,” and section 5304 is simply inapplicable because it was originally intended only as a basis of “jurisdiction over things.” That section 5304 was never intended to apply where jurisdiction is had over both parties in a suit concerning foreign documents is further emphasized by the fact that such an instance is specifically provided for in Chapter 3 under “jurisdiction over persons.” Section 53 of the Restatement provides:

§ 53. Decree to Be Carried Out in Another State
A state has power to exercise judicial jurisdiction to order a person, who is subject to its judicial jurisdiction to do an act, or to refrain from doing an act, in another state.

The official Reporter’s Note to section 53 specifically applies this section to cases which order the production of documents located in foreign countries. For instance, in United States v. First National City Bank, 396 F.2d 897 (2d Cir.1968), a New York bank was held in contempt of court for failing to produce documents possessed or controlled by the bank, but located in Germany. In summarily rejecting the notion that it lacked jurisdiction over the action, the court held:

It is no longer open to doubt that a federal court has the power to require the production of documents located in foreign countries if the court has in personam jurisdiction of the person in possession or control of the material.

Id. at 900-901 (emphasis in original). See also Societe Internationale, etc. v. McGranery, 111 F.Supp. 435 (D.D.C.1953) (plaintiffs suit dismissed for failure to comply with Order directing production of documents located in Switzerland) (dismissal ultimately reversed, but not on jurisdictional grounds, when Supreme Court found plaintiff to be in substantial compliance with Order, Societe Internationale v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958). The United States Supreme Court has also denied certiorari to review a case with precisely the same holding. First National City Bank of New York v. Internal Revenue Service etc., 271 F.2d 616 (2d Cir.1959), cert denied, 361 U.S. 948, 80 S.Ct. 402, 4 L.Ed.2d 381 (1960).

It is clear from a review of these cases that the courts therein assumed jurisdiction over suits involving foreign documents solely on the basis that in personam jurisdiction existed over the parties. Moreover, they did so without even considering section 61 of the Restatement, a section which, as noted, is identical to the section relied on by the majority herein as mandating dismissal of appellants’ complaint. Further, it is not relevant that the aforementioned cases were federal court decisions because jurisdiction was explicitly premised on the fact that the courts had in personam jurisdiction over the parties. Jurisdiction was not based on any federal enabling statute. Also, as noted, these cases are specifically cited in the Reporter’s Note to section 53 of the Restatement, which discusses “state” jurisdiction.

In addition to the Restatement and federal courts, other authorities suggest that the exercise of jurisdiction over appellants’ complaint would have been proper. For example, 30A C.J.S., Equity, § 85 states:

§ 85. Personal Jurisdiction and Foreign Subject Matter A court of equity having jurisdiction of defendant’s person may render any appropriate decree acting directly on the person, even though the subject matter affected is outside the jurisdiction, and even in a foreign country;
Such a decree does not operate directly on a res which is beyond the territorial jurisdiction of the court, but the court may, acting in personam, coerce action respecting it.

(Emphasis added.)

Thus, the majority’s conclusion that “a court cannot exercise in rem jurisdiction over property outside its own state,” while a correct statement of law, is absolutely irrelevant to the present case. The exercise of jurisdiction sought presently is not “in rem,” but is “in personam” because the court has jurisdiction “of defendant’s person.” Therefore, contrary to the holding of the majority, a court may “coerce action respecting” the bonds without transforming the action to one in rem.

While the views of the Restatement, federal courts and commentators discussed above are persuasive on the issue under consideration, the majority is, of course, free to reject them. However, I believe that the binding precedent of this Commonwealth also indicates that jurisdiction lies in the instant action.

Schmaltz v. York Mfg. Co., 204 Pa. 1, 53 A. 522 (1902), is a seminal case discussing the jurisdictional aspects of actions between residents of this state concerning a foreign res. In Schmaltz, the defendant, a corporate resident of Pennsylvania, sold and delivered a refrigeration machine to a New York brewery, but retained title to the machine until payments were completed. The brewery then installed the machine as an integral part of its plant and subsequently mortgaged the plant, along with the machine. The mortgage was then assigned to plaintiff, a Pennsylvania resident. Upon the brewery’s default of payments to defendant and bankruptcy, defendant sought to retrieve the machine and plaintiff petitioned equity for an injunction. Finding jurisdiction “[t]he important and controlling question in the case,” our Supreme Court proceeded to an exhaustive review of state and national law on the power of courts to adjudicate, in personam, issues affecting foreign land and property. The Court began by citing the United States Supreme Court, as well as courts from Maryland, New York and Louisiana for the proposition that:

While the situs of the property in dispute is in another state and a decree of a court of this state cannot operate upon or directly affect it, yet we think that a court of equity in this state, having jurisdiction of all the parties, can determine their rights to the property, and by proper process enforce them in personam....

Id. at 13, 53 A. 522 (citations omitted).

Our Supreme Court then engages in a discussion which repudiates the negative inference drawn from section 5304 by the trial court and the majority, namely, that since section 5304 grants jurisdiction over all documents within the Commonwealth, it necessarily precludes jurisdiction over all documents not within the Commonwealth, regardless of the residency of the parties. The Court notes:

Where property in controversy is within the limits of the state, and the claimant resides abroad, the chancery court has an undeniable jurisdiction over the case. So where the party defendant is within the state, and the land or other property in contest is beyond its limits, ... we apprehend there is no want of jurisdiction in the chancellor. To enforce a decree in a case of this kind the proceedings may be in personam, as well as by injunction, to recover the possession of the thing disputed.

Id. at 15, 53 A. 522, citing Carroll v. Lee, 3 G & J 504 (Md.1832) (emphasis added).

Since the trial court in the instant case premised its dismissal of appellants’ complaint solely on the improper negative inference drawn from section 5304, the rationale of Schmaltz, standing alone, warrants reversal. Additionally, however, the Schmaltz Court also discussed the following Pennsylvania Supreme Court decisions which all assumed jurisdiction over actions concerning a foreign res because the litigants were residents of this state: Kendall v. McClure Coke Co., 182 Pa. 1, 37 A. 823 (1897) (Court enjoins Pennsylvania creditor from instituting suit in another state to secure a preference over other creditors to lands in the other state); Vaughan v. Barclay, 6 Whart. 392 (Court compels conveyance by Pennsylvania trustee of an estate in lands located in another state); Clark v. Clark, 180 Pa. 186, 36 A. 747 (1897) (Pennsylvania trustee required to account for real and personal property over which Court had no jurisdiction); Jennings Bros., and Co. v. Beale, 158 Pa. 283, 27 A. 948 (1893) (Court enjoins Pennsylvania resident from trespassing on lands located in another state).

The Schmaltz Court, deciding that “reason and the weight of authority sustain the jurisdiction” over plaintiffs suit, Schmaltz, supra at 13, 53 A. 522, concluded as follows:

All the parties were within the jurisdiction of the court. Aquitas against in personam. This maxim is the basic principle of equity jurisdiction.
For a chancellor in this jurisdiction to deny aid under the circumstances would be to refuse to enforce the law in a contest between citizens of this commonwealth and, therefore, for the state to abdicate its sovereignty. So long as an individual is a citizen of a state he is subject to the process and decrees of its courts of equity, regardless of the locus of the subject-matter indirectly affected by the litigation.

Id. at 17, 58 A. 522. Subsequent to Schmaltz, a variety of cases assumed jurisdiction over actions brought by Pennsylvania residents concerning out-of-state personalty and land.

For instance, in Newman v. Shreve, 229 Pa. 200, 78 A. 79 (1910), the Court ordered an accounting of proceeds from the sale of land located in New Jersey because all parties were properly before the Court.

Further, Cohn v. Weiss, 356 Pa. 78, 51 A.2d 740 (1947), a case cited by both parties and the majority, decreed the specific performance of a contract involving New Jersey real estate on the basis that in personam jurisdiction was had over the parties. In support of its holding, the Cohn Court quotes Chief Justice Marshall of the United States Supreme Court as follows:

[T]he principles of equity give a court jurisdiction wherever the person may be found, and the circumstance, that a question of title may be involved in the inquiry, and may even constitute the essential point on which the case depends, does not seem sufficient to arrest that jurisdiction.

Id. at 86, 51 A.2d at 744, citing Massie v. Watts, 6 Cranch 148, 3 L.Ed. 181 (1810). The Cohn Court also quotes extensively from Schmaltz.

In Drummond v. Drummond, 402 Pa. 534, 167 A.2d 287 (1961), our Supreme Court rejected out of hand defendant’s preliminary objection contending that the court lacked jurisdiction to order defendant, a Pennsylvania resident, to act or refrain from acting in relation to New Jersey real estate.

Likewise, in Selig v. Selig, 217 Pa.Super. 7, 268 A.2d 215 (1970), the court assumed jurisdiction over a foreign attachment proceeding where it had in personam jurisdiction of the garnishee-executor, despite the fact that the res involved was a New Jersey bank account.

Moreover, our Court in Whitmer v. Whitmer, 243 Pa.Super. 462, 365 A.2d 1316 (1976), demonstrates with particularity the flaw in the majority’s assumption that an adjudication of appellants’ complaint requires in rem jurisdiction. In Whitmer, wife, a resident of Florida, sued husband, a Pennsylvania resident, in a Florida court for divorce. Husband entered a general appearance in Florida to contest the divorce action. Husband then ignored several Orders of the Florida court relating to child support and the production of documents from his Pennsylvania business. The Florida court thereafter entered a judgment, ex parte, dissolving the parties’ marriage and resolving numerous other issues. The judgment also stated that it “shall act as a conveyance” to wife of a one-half interest in husband’s Pennsylvania business. Husband then contested wife’s partition action in Pennsylvania on the basis that the Florida court lacked jurisdiction over the Pennsylvania business. Our Court, agreeing with husband, held:

[T]he jurisdiction of the Florida court over the person of appellee did not give it jurisdiction in rem over his property located outside the state of Florida. The basis of jurisdiction over property is the presence of the subject property within the territorial jurisdiction of the forum state____ Plainly it was beyond the jurisdiction of the Florida court to make a conveyance to appellant of a one-half interest in appellee’s Pennsylvania property.

Id. at 469, 365 A.2d at 1319 (citations omitted; emphasis added). The court then added:

Having personal jurisdiction over appellee, the Florida court might have ordered appellee to convey a one-half interest in his Pennsylvania property to appellant and, if necessary, enforce its order by contempt proceedings____ The court might also have followed through on the stipulation at one time in effect whereby appellee was to convey the Pennsylvania assets to a trustee who would hold them subject to the order of the court. For some unexplained reason, this stipulation was never acted upon.
But instead of acting through the appellee over whom it had jurisdiction, the Florida court elected to proceed in rem against the Pennsylvania property by purporting to make a conveyance of a one-half interest in it to appellant. This was beyond its power____

Id. (emphasis added).

Therefore, even though the ultimate effect on husband’s Pennsylvania business would have been identical to that of the forbidden exercise of in rem jurisdiction, the Florida court could have compelled husband to make a conveyance, or deliver the property to a trustee, becadse Florida possessed in personam jurisdiction of husband. This is precisely the point missed by the majority when it concludes that appellants’ action is in rem because “in essence, the primary issue ... is what is to become of the bonds.” (Majority Opinion by Hudock, J., p. 93.)

All of the foregoing cases clearly demonstrate that the lower court had the power to adjudicate appellants’ claims. That power is premised on the court’s undeniable possession of in personam jurisdiction over the parties. In rem jurisdiction is neither possessed nor required. The appellants’ complaint prays for the following relief:

WHEREFORE, showing as above, your Honorable Court is requested to:
(a) Order both Defendants to immediately either return the bonds to the United States or deposit with the Court the sum of seventy-two thousand ($72,000.00) dollars in American monies with interest so that the same may be distributed in accordance with law to the rightful heirs or
(b) To hold that the Defendant’s are Trustees and impose a constructive trust not only upon the sales proceeds but on any other assets which the Defendant’s own so as to adequately recompense the Plaintiffs [sic] for their losses (c) such other relief including an accounting as the Court may direct.

Appellant’s Complaint (emphasis added).

This prayer explicitly requests that the court exercise power over the appellees and not over the bonds. The fact that the ultimate result may be the same is, as has been demonstrated, of no consequence.

Nor am I persuaded otherwise by the fact that Greek law determines whether appellees may ultimately bring the bonds to this country. As the majority recognizes, equity has the power to order a defendant to do all things, according to the lex loci rei sitae, which he may voluntarily do. This principle is established beyond the need for citation. There is no doubt that the lex loci rei sitae provides that appellee can voluntarily petition for the release of the bonds. See Exhibit F. The resolution of such a petition is not for me, nor the majority, to predict. At any rate, granting the relief requested by appellants, especially as to an accounting, is not dependent upon appellees’ bringing the bonds to America. More importantly, while the likelihood of appellees’ importing the bonds may be a relevant consideration in tailoring appellants’ remedy, it is completely irrelevant to a threshold determination of jurisdiction. Lastly, I note that courts of this country have exercised in personam jurisdiction to compel the production of documents even where such production may result in the liability of a defendant under the laws of a foreign country. United States v. First National City Bank, 396 F.2d 897 (1968); see also Restatement (Second), Foreign Relations Law of the United States, § 39(1) (1965): “A state having jurisdiction to prescribe or enforce a rule of law is not precluded from exercising its jurisdiction solely because such exercise requires a person to engage in conduct subjecting him to liability under the law of another state having jurisdiction with respect to that conduct.”

Finally, the majority claims that because the land, which was sold for the money which was converted into the bonds in question, may be the subject of future litigation, the appellees may at some point have to return the money to the buyer. Again, this issue may be relevant to the scope of appellants’ remedy (it is clearly irrelevant as to an accounting) but it is not relevant to a determination of jurisdiction.

In conclusion, I believe that the negative inference drawn from section 5304 by the trial court and the majority is contradicted by the legislative history of section 5304 as well as decisions of our Supreme Court. Additionally, an uninterrupted line of Pennsylvania precedent spanning in excess of a century mandates the exercise of jurisdiction over appellants’ complaint. This overwhelming weight of authority is emphasized by the majority’s failure to cite a single case where a court refuses the exercise of jurisdiction over an action concerning a foreign res when jurisdiction exists over the parties. Hence, I dissent.

      . Ms. Stamatakis is not a party to this action.

      . Appellees both reside in Washington County.

      . Lex loci rei sitae is defined as "[t]he law of the place where a thing or subject-matter is situated.” Black’s Law Dictionary 821 (5th ed.1968).


author: POPOVICH, Judge:

text:
    660 A.2d 1367
    Dolores Jean GRIEVE, Appellee, v. David Michael MANKEY, Appellant.
    Supérior Court of Pennsylvania.
    Argued April 6, 1995.
    Filed June 30, 1995.

      Robert L. Garber, Pittsburgh, for appellant.
    Henry E. Rea, Jr., Pittsburgh, for appellee.
    Before POPOVICH, FORD ELLIOTT and BROSKY, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Allegheny County which dismissed appellant’s exceptions to the educational support order of November 29, 1993. Appellant was ordered to pay $585.00 per month in educational support for his daughter, Molly Mankey, who was a senior at Duquesne University, and $401.00 per month for his son, Andrew Mankey, who was a sophomore at John Carroll University. Herein, appellant alleges the following errors: 1) The lower court erred when computing his children’s “educational costs” as defined by 23 Pa.C.S.A. § 4327(j), by including such items as personal expenses, clothing and travel expenses; 2) The lower court erred by excusing Molly Mankey from attendance at the support hearing, since appellant could not then explore various issues, including inter alia the defense of Molly’s willful estrangement as set forth in Milne v. Milne, 383 Pa.Super. 177, 556 A.2d 854 (1989) (En Banc). Upon review, we find that the lower court incorrectly computed Molly’s and Andrew’s “educational costs”. Further, we find that it was error to conduct the hearing without Molly’s presence. Accordingly, we remand this case for a hearing and recomputation of appellant’s support obligations.

In McGettigan v. McGettigan, 433 Pa.Super. 102, 639 A.2d 1231 (1994), we stated:

In response to the Blue [v. Blue, 532 Pa. 521, 616 A.2d 628 (1992) ] and its invitation, the Pennsylvania legislature enacted 23 Pa.C.S. § 4327 as a part of Act No. 62 of 1993, P.L. 431, effective July 2,1993 (“the statute”). Section 4327 provides as follows:
Where applicable under this section, a court may order either or both parents who are separated, divorced, unmarried or otherwise subject to an existing support obligation to provide equitably for educational costs of their child whether an application for this support is made before or after the child has reached 18 years of age. The responsibility to provide for postsecondary educational expenses is a shared responsibility between both parents. The duty of a parent to provide a postsecondary education for a child is not as exacting a requirement as the duty to provide food, clothing and shelter for a child of tender years unable to support himself. The authority shall extend to postsecondary education, including periods of undergraduate or vocational education after the child graduates from high school. A award for postsecondary educational costs may be entered only after the child or student has made reasonable efforts to apply for scholarships, grants and work-study assistance.
In its preamble to Act No. 62, the legislature indicated that it intended, in enacting 23 Pa.C.S. 4327, “to codify the decision of the Superior Court in the case of Ulmer v. Sommerville, 200 Pa.Super. 640, 190 A.2d 182 (1963) and the subsequent line of cases interpreting Ulmer prior to the decision of the Pennsylvania Supreme Court in Blue v. Blue, 532 Pa. 521, 616 A.2d 628 (1992), decided on November 13, 1992.”
* * * * * *
The statute provides that in making an award for the costs of postsecondary education, the court shall first calculate educational costs, which are defined to be “tuition, fees, books, room, board and other educational materials.” 23 Pa.C.S. § 4327(j). The court shall next deduct from the educational costs all grants and scholarships awarded to the student. 23 Pa.C.S. § 4327(d). However, an award for post secondary educational costs may be entered only after the child or student has made reasonable effort to apply for scholarships, grants and work-study assistance. 23 Pa.C.S. § 4327(a).
After calculating educational costs, and deducting grants and scholarships, the court may then order either or both parents to pay all or part of the remaining educational costs of their child. In making such an award, the court is directed by the statute to consider all relevant factors which appear “reasonable, equitable and necessary,” including the following:
1. The financial resources of both parents.
2. The financial resources of the student.
3. The receipt of educational loans and other financial assistance by the student.
4. The ability, willingness and desire of the student to pursue and complete the course of study.
5. Any willful estrangement between parent and student caused by the student after attaining majority.
6. The ability of the student to contribute to the student’s expenses through gainful employment. The student’s history of employment is material under this paragraph.
7. Any other relevant factor.

23 Pa.C.S. § 4327(e).

The statute further provides that support for educational costs shall not be ordered if: (1) undue financial hardship would result to the parent; (2) the educational costs would be a contribution to postcollege graduate educational costs; (3) the order would extend support for the student beyond the student’s twenty-third birthday, absent exceptional circumstances. 23 Pa.C.S. § 4327(f).
Turning now to the issues raised by Father in this appeal, we adopt as our standard of review of orders entered pursuant to the statute, on of an abuse of discretion, taking our lead from the Supreme Court in its Blue decision. Although the Blue case found no common law duty to provide postsecondary educational support, it indicated that the “scope of review in a typical support matter is whether the trial court has abused its discretion” and indicated that
[e]ven though this appeal does not present a typical support matter, we see no reason for adopting a different scope of review. In essence, we are reviewing an order requiring a parent to provide support, albeit not monthly support but rather educational support. Therefore, an abuse of discretion is the appropriate standard of review. Blue v. Blue, 532 Pa. at 525-526, 616 A.2d at 631 (citations omitted).

McGettigan, 433 Pa.Super. 103-104, 639 A.2d at 1232-1233 (footnotes omitted).

We now address appellant’s contention that the lower court committed reversible error when it included personal expenses, clothing and travel cost in its computation of Andrew and Molly Mankey’s “educational costs”. In computing the educational costs of appellant’s children, the lower court expressly included the students’ personal expenses and clothing and travel costs as a part of their “educational costs”. See, Trial Court Opinion, October 20, 1994. Such action by the lower court is in direct conflict with our decisions in Bolton v. Bolton, 441 Pa.Super. 482, 657 A.2d 1270 (1995) and McGettigan v. McGettigan, 433 Pa.Super. 102, 639 A.2d 1231 (1994). In Bolton, supra, at 486, 657 A.2d at 1272, we stated:

Because of its recent passage, we have had little opportunity to interpret Act 62. One aspect of this law should be obvious from its face, though: it only covers educational costs. 23 Pa.C.S.A. § 4327(a) and (b). Educational costs are tuition, fees, books, room, board and other educational materials. Id. at (j). Father has no obligation under any statute of at common law to pay for such sundries as his 21-year-old son’s car insurance or cable television.

Here, the lower court has committed an error of law in computing the educational cost of appellant’s children. Appellant has absolutely “no obligation under any statute or at common law to pay” for any of his children’s expenses other than his equitable share of the cost of his children’s “[t]uition, fees, books, room, board and other educational materials.” 23 Pa.C.S.A. § 4327; Bolton, supra. Thus, upon remand, we remind the lower court to compute the childrens’ educational cost in accordance with Bolton, supra.

We next turn to appellant’s allegation that the lower court erred holding the educational support hearing in the absence of Molly Mankey. It is undisputed that appellant served Molly Mankey with a subpoena which directed her to attend the educational support hearing and produce certain documents. See, Pa.R.C.P. 234.6, Form of Subpoena. It is also undisputed that Molly did produce the requested documents via her mother, although she did not attend the hearing. Appellant objected to holding the hearing in Molly’s absence and requested the court to direct Molly to attend the hearing. Nevertheless, the lower court agreed with the hearing officer’s statement that:

H[earing] 0[fficer] has heard Molly testify before. [¶] does not see anything special about this case which mandates Molly be here tó testify, particularly since all requested documents were brought by Mother. Any expense requested but not listed by [¶] are not considered by [¶] to be reasonable under the circumstances. Recommendation, September 3, 1993.

We agree with appellant that it was error for the court to proceed in the absence of Molly Mankey. At the time of the hearing, Molly was residing only an short distance from the court house in Pittsburgh, and she did not have classes on the hearing date. Thus, -it would not have been impermissibly inconvenient for her to attend. She did not file a petition to quash the subpoena; nor did appellant excuse her attendance. See, Pa.R.C.P. 234.4. Thus, the court should have at least continued the hearing and compelled Molly’s attendance at the educational support hearing. See, Pa.R.C.P. 234.5.

Appellant contends that without being able to examine Molly in person, he was unable to delve into the issues of Molly’s willful estrangement from him, Molly’s seriousness with respect to her studies and Molly’s ability to contribute to her expenses via employment, due to her lightened course load. These issues upon which appellant desires to question Molly are all relevant to the determination of amount of Molly’s educational cost which appellant must pay. See, 23 Pa.C.S.A. § 4827(e)(4)(5)(6).

We are not convinced that Molly should be excused from testifying at the hearing simply because she produced the requested documents via her mother. Molly’s absence prevented appellant from fully exploring issues which were relevant to setting his educational support obligation and which could not be developed from the documents alone. Accordingly, we remand for an evidentiary hearing at which appellant may examine Molly Mankey. As we stated in Bolton, supra, at 486, 657 A.2d at 1272; “We are not dealing with children, but with adults. There is no reason why adults who seek parental contribution to their college expenses should not be expected to back up their requests____”

Order of educational support vacated. Case remanded for further proceedings in accordance with this order.

      . We note that appellant was ordered to pay $986.00 per month in educational support for his two children. We remind the lower court that: “The duty of a parent to provide a postsecondary education for a child is not as exacting a requirement as the duty to provide food, clothing and shelter for a child of tender years unable to support himself." 23 Pa.C.S.A. § 4327(a) (emphasis added); Ulmer, supra, 200 Pa.Super. 640, 190 A.2d 182. If we were to assume that appellant owed a "regular” support obligation for his two children given his net income of approximately $3,259.00 and appellee’s net income of approximately $2043.00, it would be approximately $743.00 per month for their support if they were still minors. See, Pa.R.C.P. 1910.16-2, Support Guidelines. Considering the express language of the statute concerning the relationship of educational support to child support in general, we are convinced that a party’s educational support obligation should not exceed that which he would otherwise be obligated to pay for the support of his “minor” children.

      . We note that, given the current state of the record, we find it doubtful that appellant can establish a case of “willful estrangement” on the part of either of his children. See, Milne, supra; Rudick v. Rudick, 441


author: HOFFMAN, Judge:

text:
    660 A.2d 1370
    Terry B. SHERMAN, Appellant, v. FRANKLIN REGIONAL MEDICAL CENTER, Franklin Surgical Group, P.C., Louis J. Wagner, M.D., Leonard L. Peters, M.D., Frank A. Klinger, M.D., John O’Donnell, M.D., J.B. Keats, M.D., and Venango Diagnostic Imaging, Inc.
    Superior Court of Pennsylvania.
    Argued March 22, 1995.
    Filed June 30, 1995.

      Curtis D. Hovis, Emlenton, for appellant.
    Joanna K. Budde, Erie, for Franklin Surgical Group, appellee.
    Before ROWLEY, President Judge, and KELLY and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the trial court’s August 24, 1994 order granting summary judgment to appellees, Franklin Surgical Group, P.C., Louis J. Wagner, M.D., Leonard L. Peters, M.D., and Frank A. Klinger, M.D. Appellant, Terry Sherman, now presents two issues for our review:

I. [Can there] be no double recovery when a person has suffered two distinct injuries?
II. [Does] a lawsuit and verdict against medical practitioners not constitute a double recovery when Sherman received the liability policy limits from the tortfeasor, but was not fully compensated for his injuries and specifically excluded the medical practitioners from coverage in the signed release?

Appellant’s Brief at 6.

On April 18, 1987, appellant, a passenger in a car which overturned, was severely injured. The car was owned by Karen Rankin (“Rankin”) and operated by James Shaw (“Shaw”). Appellant was treated for his injuries at Franklin Regional Medical Center (“Franklin”) and released two days later, but continued outpatient treatment with appellees until May 21, 1987, at which time appellant was released and advised that he could return to work. The doctors, however, failed to diagnose fractures of appellant’s sternum and T-6 vertebrae, along with his hammer toes. It was only after appellant consulted another physician that these injuries were discovered. Appellant, in fact, had suffered a 50% compression fracture of the T-6 vertebrae, and had a posterior spinal fusion on September 26, 1988.

Appellant subsequently commenced a lawsuit against both Rankin and Shaw for the injuries suffered in the accident. Thereafter, on April 14, 1989, appellant commenced the instant lawsuit against appellees. In July 1989, appellant settled his lawsuit against Rankin and Shaw for a total of $103,000.00. On receipt of these sums, appellant released Rankin, Shaw and their insurance carriers from any further liability. The releases specifically excluded appellees from their terms.

Notwithstanding, appellees moved for summary judgment, claiming that appellant had been fully compensated for all his injuries by the settlement, including injuries resulting from their actions, and should not be permitted to recover twice for the same injuries. The trial court eventually granted appellees’ motion on August 24, 1994. This timely appeal followed.

Preliminarily, we note that:

Summary judgment is properly granted where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” An entry of summary judgment may be granted only in cases where the right is clear and free from doubt. The moving party has the burden of proving the nonexistence of any genuine issue of material fact. The record must be viewed in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.

Marks v. Tasman, 527 Pa. 132, 134-35, 589 A.2d 205, 206 (1991) (citations omitted). We will overturn a trial court’s entry of summary judgment only if there has been an error of law or a clear abuse of discretion. O’Neill v. Checker Motors Corp., 389 Pa.Super. 430, 434-35, 567 A.2d 680, 682 (1989). Moreover, summary judgment may not be had where the moving party relies exclusively upon oral deposition testimony. Estate of Pew, 409 Pa.Super. 417, 428, 598 A.2d 65, 71 (1991), appeal denied, 530 Pa. 645, 607 A.2d 255 (1992). An exception to this rule exists, however, where the moving party supports the motion by using admissions of the opposing party or the opposing party’s own witnesses. Pew, 409 Pa.Super. at 428, 598 A.2d at 71. We have previously defined admissions as:

Confessions, concessions or voluntary acknowledgments made by a party of the existence of certain facts. More accurately regarded, they are statements by a party, or someone identified with him in legal interest, of the existence of a fact which is relevant to the cause of his adversary.

Durkin v. Equine Clinics, Inc., 376 Pa.Super. 557, 569, 546 A.2d 665, 670 (1988) (quoting Black’s Law Dictionary 47 (6th ed. 1990) (emphasis omitted), appeal denied, 524 Pa. 608, 569 A.2d 1367 (1989)).

Appellant now argues that the trial court erred in determining that appellant received full satisfaction for all his injuries from his settlement agreement with the original tortfeasors in the car accident. We agree.

In granting summary judgment, the trial court stated: In support of their argument that [appellant] was previously compensated for all his injuries in the settlement ... [appellees] point to the deposition testimony of the claims adjusters for the original tortfeasors____ [S]ummary judgment may not be granted solely on the basis of the oral deposition testimony presented on behalf of the moving party, even is such testimony is uncontradicted.... We are not faced with such a problem in the instant case. Other documents appended to [appellees’] motion support their contention that all damages and injuries were considered by the parties in the settlement. A list of medical bills, including the posterior spinal fusion expenses, that were considered by the insurers was provided for our consideration. Most significant, however, is [appellees’] Exhibit H, the letter dated May 15, 1989 sent by [appellant’s] counsel to the claims supervisor of one of the settling insurance carriers. The letter summarizes the injuries suffered by the [appellant] as a result of the automobile accident, including the surgery of September 1988 and the resultant pain and suffering. The letter clearly establishes the scope of damages and injuries [appellant] was seeking to recover in his settlement. By seeking these same damages and injuries in his suit against the [appellees], [appellant] is attempting to gain a double recovery.

Trial Court Opinion 8/24/94.

We note that the May 15, 1989 letter, from appellant’s counsel to the insurers, does mention the negligent medical treatment provided by appellees, and the attached medical bills contain the costs from all of appellant’s injuries. However, we find that these are not admissions because appellant never specifically asserts in any of these documents that he was seeking settlement or recovery for all of his injuries from the insurers of the original tortfeasors. Durkin, supra. See also Porterfield v. The Trustees of the Hospital of the University of Pennsylvania, 441 Pa.Super. 529, 657 A.2d 1293 (1995) (summary judgment correctly granted where appellant’s decedent at deposition specifically stated fact adverse to his interests); Estate of Pew, 409 Pa.Super. at 421, 429, 598 A.2d at 67, 71 (trial court properly granted summary judgment where letter was introduced from appellant’s physician which expressly acknowledged that appellant was of blood type which conclusively established non-paternity). Cf. Rochester Machine Corporation v. Mulach Steel Corp., 498 Pa. 545, 555-56, 449 A.2d 1366, 1371 (1982) (clear, unequivocal admission made in negotiations is admissible as long as it cannot be inferred that it is not inextricably connected to offer to compromise). In fact, the interpretation that appellant was seeking recovery from the insurers for all of his injuries contravenes the express language of the written releases, which specifically excluded appellees from the terms of the releases and which were sent to the same insurers in exchange for the settlement money. See Buttermore v. Aliquippa Hospital, 522 Pa. 325, 328-29, 561 A.2d 733, 735 (1989) (effect of release must be determined from ordinary meaning of its language).

In addition, appellees assert that appellant’s acceptance of only $3,000 of an available $15,000.00 in underinsured motorist coverage clearly reveals that he was fully compensated for his injuries.

We have previously stated that:

The common law has traditionally attached great significance to the entry of a satisfaction of judgment. A plaintiff who is injured at the hands of more than one tortfeasor may sue and recover a judgment against any one or all of the tortfeasors and may attempt to collect the damages awarded by the judgment against any one or all of them. However, although a plaintiff may obtain a judgment against several tort-feasors for the same harm, he or she is entitled to only one satisfaction for that harm.

Brandt v. Eagle, 412 Pa.Super. 171, 176, 602 A.2d 1364, 1367 (1992) (en banc), appeal denied, 532 Pa. 653, 615 A.2d 1310 (1992).

In Hilbert v. Roth, 395 Pa. 270, 149 A.2d 648 (1959), our Supreme Court distinguished releases from satisfaction of judgments, stating:

It is not at all unreasonable that releases and satisfactions should be treated differently. A release, even after entry of a judgment, may well be the result of a compromise for less than the full value of the plaintiffs claim____ With respect to a satisfaction of judgment, however, particularly where, as here, it follows an adversary trial in which plaintiff proved his damages, it may more safely be assumed that the judgment does represent the true value of the claim and therefore, when the plaintiff has it marked satisfied of record, the common law assumption that he is satisfied may reasonably be permitted to operate.

Hilbert v. Roth, 395 Pa. at 274-75, 149 A.2d at 651-52.

Our own Court in Brandt v. Eagle determined that a plaintiff, who had marked the judgment satisfied against one tort-feasor, was barred from maintaining a second action against another tort-feasor for the same harm. Brandt, 412 Pa.Super. at 181, 602 A.2d at 1370. The Brandt court explained that one reason the judgment represented full satisfaction of the harm alleged was that the plaintiff had a full adversary proceeding against the first tort-feasor before settling with them. Brandt, 412 Pa.Super. at 177-78, 602 A.2d at 1368 (citing Frank v. Volkswagenwerk A.G., 522 F.2d 321, 326 (3rd Cir.1975)). See also Blanchard v. Wilt, 410 Pa. 356, 360, 188 A.2d 722, 725 (1963) (consent verdict was not legal equivalent of judgment entered in action after adversary proceeding and thus, entry and satisfaction of consent verdict did not preclude present action).

Here, the evidence suggests that the settlement amount of $103,000 may not be the true value of appellant’s claim. First, appellees are not joint tortfeasors with Rankin and Shaw. E.g., Voyles v. Corwin, 295 Pa.Super. 126, 131, 441 A.2d 381, 384 (1982) (tortfeasors originally causing an injury and physicians who subsequently aggravate or cause a new injury are not joint tortfeasors). Consequently, appellant’s attempt to apportion the damages caused by appellees from the injuries incurred in the accident, along with the fact that he had specifically excluded appellees from the terms of the releases with the original tortfeasors, suggest that the settlement figure did not fully compensate him. See (Letter from Dr. Michael Blank to Robert Meeker of 11/6/89, at 1); Buttermore, supra. Finally, and most importantly, appellant has not yet had the opportunity to prove his damages at an adversarial proceeding. Brandt, supra, 412 Pa.Super. 171, 602 A.2d 1364; Hilbert, supra, 395 Pa. 270, 149 A.2d 648. See also Frank, 522 F.2d at 326 (Third Circuit found that where there had been no prior adversary action on the merits, Pennsylvania courts would look closely at circumstances of prior settlement to see whether it represented true value of claim). Thus, we believe that the money appellant received in the settlement agreement with Rankin and Shaw may have been merely a compromise for less than full value of his entire claim, and not in full satisfaction for his injuries. See Hilbert, supra.

Accordingly, we find that the trial court erred in granting summary judgment, and we reverse and remand.

Reverse and remanded. Jurisdiction relinquished.

      . Appellant also had pain across his left chest; pain in his right foot and right dorsal region of his back; limitation of motion of the dorsal and lumbar regions of the back; tenderness over the paraspinal muscles in the dorsal spine; and severe injury to the right foot, ankle, right distal tibia and fibula.

      . In addition to appellees, the original defendants to this action included Franklin, John O’Donnell, M.D., J.B. Keats, M.D., and Venango Diagnostic Imaging, Inc. On July 7, 1993, the case was discontinued as to Keats and Venango. Subsequently, on December 2, 1993, summary judgment was granted in favor of O’Donnell and Franklin. That summary judgment order, however, is not before us on this appeal.

      . This money was composed of the $50,000 policy limit which Rankin had of insurance coverage on her vehicle; the $50,000 policy limit which Shaw had of liability insurance; and $3,000, one fifth (!é) of the $15,000 which appellant had of uninsured motorist benefits through his mother’s automobile policy.