author: POPOVICH, Judge: FORD ELLIOTT, Judge,

text:
    665 A.2d 487
    COMMONWEALTH of Pennsylvania, Appellee, v. Steven M. STADTFELD, Appellant.
    Superior Court of Pennsylvania.
    Argued April 6, 1995.
    Filed Sept. 11, 1995.

      Joel B. Johnston, Pittsburgh, for appellant.
    Kevin F. McCarthy, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before POPOVICH, FORD ELLIOTT and BROSKY, JJ.
   POPOVICH, Judge:

This case involves an appeal from the order of the Court of Common Pleas of Allegheny County denying a Petition for Allowance of Appeal Nunc Pro Tunc by the defendant/appellant, Steven M. Stadtfeld. We reverse and remand.

On June 2, 1989, the appellant was cited for various violations of the Motor Vehicle Code, one of which was for driving while under suspension (75 Pa.C.S.A § 1543(a)). As a result of the appellant’s failure to respond to the citations, inaction which he alleges was “inadvertent,” the Pennsylvania Department of Transportation (PennDOT) suspended his driving privileges indefinitely. It was not until September of 1992 that the appellant learned of his suspension and contacted PennDOT to determine what needed to be done to restore his driving privileges. He was informed by .PennDOT that the suspension originated with the 1989 Driving While Under Suspension citation and the charge issued out of the District Justice’s Office in Pittsburgh, PA.

The appellant contacted the District Justice’s Office and “was informed that the only way to dispose of such outstanding charges was to pay the existing fine and associated court costs which was done on approximately January 15, 1993.” See Paragraph 6. Notwithstanding the entry of a plea of guilty and payment of fines, the appellant’s license was suspended for a period of one year by PennDOT for his January 15, 1993, conviction for Driving While Under Suspension. To-date, according to the appellant, his license has yet to be reinstated. See N.T. 10/14/93 at 3.

A Petition for Allowance of Appeal Nunc Pro Tunc was filed on November 9, 1993, averring, in pertinent part, that: 1) the passage of more than two years between the citation and advisement by the District Justice’s Office to pay the same was violative of 42 Pa.C.S.A. § 5553(e), which prohibits taking “any action” on Motor Vehicle violations more than “two years after the commission of the offense”; and 2) the appellant was “affirmatively misadvised” that the payment of a $210 fine would result in driving privileges being restored “and that there would be no further results or punishment[.]” See Paragraph 9(c).

The Petition was argued in open court and denied on the ground that there was no evidence of fraud or “breakdown” in the judicial system warranting the allowance of appeal nunc pro tunc. Court Opinion, 10/6/94 at 2. This timely appeal followed and raises the sole claim that the lower court abused its discretion in summarily denying the Petition for Allowance of Appeal Nunc Pro Tunc without an evidentiary hearing to establish whether “misinformation” was received from the District Justice causing the appellant to refrain from appealing timely his summary conviction.

In this jurisdiction, an appeal nunc pro time will be granted where evidence of fraud or a wrongful or negligent act of a court official has caused a defendant to forego his/her right to a timely appeal of a conviction. Conrad v. Kemmerer, 301 Pa.Super. 410, 447 A.2d 1032, 1034 (1982). Further, the individual seeking leave to appeal nunc pro tunc must establish that he/she acted promptly to assert such a right once learning of the existence of the grounds relied upon for such requested relief. Commonwealth v. Bassion, 390 Pa.Super. 564, 568 A.2d 1316 (1990).

Sub judice, even assuming, arguendo, that the District Justice or his staff misinformed the appellant of the collateral consequences of payment of his citation for Driving While Under Suspension, we are confronted with the fact that the appellant has failed to act timely, once learning of the impending suspension, to file his Petition for Allowance of Appeal Nunc Pro Tunc.

To explicate, PennDOT advised the appellant by letter dated March 12,1993, that his conviction on January 15, 1993, of Driving While Under Suspension would result in a suspension of his license for one year effective April 16, 1993. Moreover, PennDOT apprised the appellant:

You have the right to appeal to the Court of Common Pleas of the county of your residence within 30 days of the mail date (March 12, 1993) of this notice. Sending a copy to this department of a timely, filed appeal will stay the department’s action pending a final decision by the court.

The next step that the appellant took was the filing of a pro se appeal to the Court of Common Pleas of Allegheny County on April 6,1993, obtaining a hearing on his license suspension for September 22, 1993. In mid-September, the appellant secured counsel and shifted gears from a challenge of the license suspension to an attack of the criminal conviction arising out of his pleading guilty and payment of a fine on January 15, 1993, before the District Justice for the 1989 Driving While Under Suspension citation. This took the form of a Petition for Allowance of Appeal Nunc Pro Tunc claiming that the District Justice “lacked jurisdiction” to accept his plea and payment of his fine.

It is undisputed that the appellant’s Petition was filed on November 9, 1993, a lapse of almost nine (9) months between the notice of suspension, appeal rights and the taking of action to guarantee the timeliness of any appeal to hold in abeyance the suspension of his driving privileges. See note 2, supra.

When the appellant became aware that he was going to lose his driving privilege as a consequence of pleading guilty and payment of a fine on a summary offense, “his only remedy [wa]s to seek allowance of appeal nunc pro tunc from the summary conviction” and not an appeal challenging his license suspension. Commonwealth v. Duffey, 536 Pa. 436, 443, 639 A.2d 1174, 1177 (1994) see also Com., Dept. of Transp. v. Moore, 120 Pa.Cmwlth. 617, 554 A.2d 130 (1988).

Here, we find that the appellant failed to act with the requisite promptness upon learning of his license suspension from PennDOT by letter dated March 12, 1993, for his conviction on January 15, 1993, of Driving While Under Suspension. This manifested itself as an appeal of the appellant’s license suspension on April 6, 1993. See note 2, supra. However, with the securement of counsel, the appellant was advised to alter his approach from an attack upon his license suspension to one assaulting the underlying criminal conviction (“Driving While Under Suspension”) via a Petition for Allowance of Appeal Nunc Pro Tunc. See Appellant’s Brief at 5.

The time-lapse between the notice of suspension (March 12, 1993) and the Petition (November 9, 1993) is not reflective of the “promptitude” expressed by our Court when affirming the grant of an appeal nunc pro tunc. See Commonwealth v. Liptak, 392 Pa.Super. 468, 573 A.2d 559, 561-62 (1990), overruled on other grounds sub nom. Com., Dept. of Transp. v. Tarnopolski, 533 Pa. 549, 626 A.2d 138, 141 (1993). This is so even assuming a “breakdown” in the judicial system can be proven. See Commonwealth v. Jarema, 404 Pa.Super. 121, 590 A.2d 310, 312 n. 2 (1991); Bassion, supra, 390 Pa.Super. at 568-70, 568 A.2d at 1319.

Our inquiry is not at an end, however, inasmuch as the appellant’s Petition focused on the jurisdiction of the District Justice to accept his plea with the passage of over two (2) years between the date of his citation for driving under suspension (June 2, 1989) and payment of a fine (considered the taking of “action” under 42 Pa.C.S.A. § 5553(e)). See Moore, supra, (Describing distinction between appeal of license suspension and appeal nunc pro tunc of underlying criminal conviction for suspension); see also Commonwealth v. Marr, 426 Pa.Super. 442, 627 A.2d 757 (1993) (Judgment entered for purposes of statute of limitation under 42 Pa. C.S.A. § 5553(e) with order directing the payment of fine).

42 Pa.C.S.A. § 5553(e) proscribes the conducting of any proceeding or the taking of any action regarding a summary offense more than two years after its commission. Yet, the law is quite clear that license suspension cases do not fall within the prohibition of Section 5553(e). See Commonwealth v. Quinn, 405 Pa.Super. 487, 592 A.2d 1316 (1991) (en banc), allocatur denied; Com., Dept, of Tramp., Bur. of Driver Licensing v. Danks, 114 Pa.Cmwlth. 37, 538 A.2d 120 (1988); Shughart v. Com., Dept, of Tramp., Bureau of Traffic Safety, 65 Pa.Cmwlth. 480, 442 A.2d 1206 (1982).

At bar, the appellant pleaded guilty and paid a fine for a summary offense of Driving While Under Suspension over three-and-one-half (3%) years after his citation for the same. Under a clear reading of Section 5553(e), the District Justice was without jurisdiction to enter judgment (“action” manifested in the form of accepting the appellant’s plea of guilty/payment of a fine) following the passage of two (2) years after the issuance of the citation. The only caveat to such a prohibition: the statute of limitations is tolled for motor vehicle violations where any period of delay is attributable to the accused. See Marr, supra, Quinn, supra.

Whether the appellant was free from fault for the failure to file in a timely fashion is arguable, and we are not bound by the court’s determination that he was since no testimony was proffered for credibility assessment by the court. Accordingly, we are not bound by the court’s conclusion on this point. Cf. Com., Dept. of Transp., Bureau of Traffic Safety v. Rick, 75 Pa.Cmwlth. 514, 462 A.2d 902, 904 (1983) (“... whether the Appellee was free from fault for the failure to file in a timely fashion is arguable, but the determination that he was, results from the trial court’s assessment of his testimony and credibility and we are bound by its conclusion.”). More specifically, no testimony was elicited only argument from counsel was heard by the court; to-wit:

[COUNSEL FOR THE APPELLANT]: [The appellant] was suspended [by PennDOT] in ’89 for failure to respond [to a Driving While Under Suspension citation]. He never gets [sic] notice of it. In ’93 he wants to get his license ... reinstated—
The license was suspended in ’89 for failure to respond. He never got notice of it. [In ’93, the appellant] finds out about it and goes in.
THE COURT: Suspended for failure to respond. [COUNSEL FOR THE APPELLANT]: To Citations.
THE COURT: But defendant gets no notice.
[COUNSEL FOR THE APPELLANT]: No notice.
THE COURT: Says he.
[COUNSEL FOR THE APPELLANT]: Well, we’d like the opportunity to raise those issues on appeal, Your Honor. We’re just seeking the opportunity to appeal that.
$ ‡ * * * *
[COUNSEL FOR THE COMMONWEALTH]: Your Hon- or, our argument is that the Citation that [the appellant] was contesting is a 1543(a), which would mean driving without a license. Our indication would be that he would have received that Citation while the violation was occurring, so that he would have had notice of the Citation issued.
There was an indication there was another moving violation as well. Therefore, he should have been aware that there was a concern about his license back in 1989.
Now, I don’t have any knowledge of this. I don’t know what the second Citation was for, and why it wasn’t taken care of back in ’89. I do know that the courts do not have jurisdiction to hear cases after two years. * * *.

Statutory Appeal Hearing, 10/14/93 at 2-3, 4-5 (Emphasis added).

In its opinion, the court wrote on the “notice” issue that: The trial transcript reveals that the 6 June 1989 Citation itself gave notice to Defendant at the very time the violation was observed. Ergo, absent any evidence to the contrary, we conclude that Defendant had knowledge that his operator’s privileges were in jeopardy.

Court Opinion, 10/6/94 at 1-2.

Contrary to the court’s holding that the “citation” itself gave the appellant “notice” that “his operator’s privileges were in jeopardy,” our review of the record indicates no “citation” was introduced into evidence by the Commonwealth to substantiate the court’s finding of fact as to the existence and content of the “citation.” Since the record does not buttress the court’s factual finding (“citation” made the appellant aware of potential license suspension), we are not bound by its conclusion of law drawn therefrom (i.e. “notice of license suspension) absent evidence in support of the same.” See Commonwealth v. Iannaccio, 304 Pa.Super. 307, 450 A.2d 694, 698 (1982), aff'd, 505 Pa. 414, 480 A.2d 966 (1984), cert. denied sub nom. Iannaccio v. Pennsylvania, 474 U.S. 830, 106 S.Ct. 96, 88 L.Ed.2d 78 (1985).

A factual dispute being extant, we deem it prudent to remand to allow the court to receive evidence consistent with Commonwealth v. Crockford, 443 Pa.Super. 23, 660 A.2d 1326 (1995), to determine when and if the appellant had actual notice of his license suspension.

In Crockford, the appellant was challenging the judgment of sentence following his conviction for driving while his operating privileges were suspended. The prosecution introduced the testimony of the trooper and a certified driving record evidencing a suspension prior to the date of citation.

The defense’s only witness was the appellant, who admitted having two prior convictions for driving under the influence, being advised that his license would be suspended, and that notification of the same would be forthcoming from the Commonwealth. Also, the appellant was unable to produce his license at trial, which resulted in his conviction. On appeal, the appellant asserted that the evidence was insufficient to sustain his conviction because the Commonwealth failed to show that he had “actual notice” of his suspension. This Court, in an en banc opinion authorized by Judge Kate Ford Elliott, disagreed and found that evidence of notice left unrebutted at trial was sufficient to prove notice beyond a reasonable doubt. More specifically, the Court observed that notice of suspension was a question of fact, the proof of which “may take the forms of a collection of facts and circumstances that allow the fact finder to infer that a defendant has knowledge of suspension.” Id. at 32, 660 A.2d at 1331.

Examples of factors which could be considered in determining whether a defendant had “actual notice” of license suspension were recited as follows; to-wit:

Factors that a finder of fact may consider in determining circumstantially or directly whether a defendant had actual notice of his or her suspension include, but are not limited to, evidence that the defendant was verbally or in writing apprised of the license suspension during the trial or a plea, statements by the accused indicating knowledge that he or she was driving during the period in which his or her license had been suspended, evidence that PennDOT sent by mail the notice of the suspension to appellant’s current address, evidence that PennDOT’s notice of suspension was not returned as undeliverable, attempts by the accused to avoid detection or a citation, and any other conduct demonstrating circumstantially or directly appellant’s knowledge of the suspension or awareness of guilt.

Id. at 32-33, 660 A.2d at 1331, quoting Commonwealth v. Zimmick, 539 Pa. 548, 653 A.2d 1217, 1221 (1995) (Citations omitted).

The Crockford Court found that a rebuttal presumption of notice had been established with the Commonwealth’s presents ment that: 1) the appellant’s license had been suspended for a DUI offense; 2) notice of the appellant’s suspension had been mailed by PennDOT (without argument of issuance to an incorrect address); and 3) the appellant failed to produce a current driver’s license when stopped by police.

However, even absent the timely production of a valid driver’s license, an accused is still entitled to present any evidence of lack of actual notice in an effort to rebut the Commonwealth’s prima facie case of guilt. It is only after the trial court has “heard all of the evidence and the appellant’s testimony” can it make a ruling on the “actual notice” of license suspension question.

The Crockford Court held that the trial court had heard such evidence, with the appellant’s inability to rebut the Commonwealth’s prima facie case, and affirmed the finding that evidence sufficient to sustain the conviction was presented beyond a reasonable doubt. Here, however, no such testimony and/or evidence was proffered by the Commonwealth to prove, prima facie, that the appellant had “actual notice” of his license suspension so as to toll Section 5553(e)’s statute of limitations and render the District Justice’s acceptance of a plea and fine jurisdictionally sound.

To rectify the shortfall, a remand is necessary to allow a hearing for the presentment of evidence regarding the notice of suspension question. Once this issue is resolved, it can be decided whether the appellant contributed to the delay in resolving the citation for Driving While Under Suspension so as to toll or not toll the running of Section 5553(e)’s two-year statute of limitations to attacking criminal convictions of summary offenses under the Motor Vehicle Code. See Marr, supra; Quinn, supra; Commonwealth v. Markley, 375 Pa.Super. 231, 544 A.2d 72 (1988).

Order reversed; case remanded for a precedendo; jurisdiction is relinquished.

FORD ELLIOTT, J., files a dissenting opinion.

FORD ELLIOTT, Judge,

dissenting:

I respectfully dissent. I disagree with the result reached by the majority, as I believe that we must narrowly focus on the issue before this court; that is, whether the trial court abused its discretion in denying appellant’s nunc pro tunc appeal. As the majority states, appellant was required to produce evidence of fraud or a wrongful or negligent act by a court official which caused him to forego his right to a timely statutory appeal of his January 1993 conviction. Conrad v. Kemmerer, 301 Pa.Super. 410, 412-13, 447 A.2d 1032, 1034 (1982). In addition, appellant must establish that he acted promptly in seeking an appeal once learning of the existence of the grounds relied upon for such requested relief. Commonwealth v. Bassion, 390 Pa.Super. 564, 568 A.2d 1316 (1990). Even assuming arguendo that appellant was mislead by the information given to him by the District Justice, there is no evidence in the record that appellant acted promptly in filing his petition for allowance of appeal nunc pro tunc. As such, I would affirm the decision of the trial court.

To show that he acted promptly in seeking his appeal, appellant, in his brief to this court, describes the following events. In a letter dated March 12, 1993, the Department of Transportation (Department) advised him that because of his conviction of January 15, 1933, of driving while under suspension, his operating privileges would be suspended for one year effective April 16, 1993. In response to the Department’s letter, appellant asserts that he filed a pro se appeal in the Court of Common Pleas of Allegheny County on April 6, 1993, and was given a license suspension appeal hearing date of September 22, 1993. In anticipation of the hearing, appellant retained counsel in mid-September. Because the impending hearing regarding appellant’s one-year license suspension would not address the underlying conviction, counsel filed a petition for allowance of appeal nunc pro tunc on November 9, 1993. In this manner, appellant could attack the January 15, 1993 conviction for his June 2,1989 citation to which he claims the district justice had no jurisdiction, as 75 Pa.C.S.A. § 5553(e) mandates that proceedings in the court of common pleas for summary motor vehicle offenses must be completed within two years of the date of the offense. (Appellant’s brief at 5.)

Although appellant explains to this court the delay in filing his appeal, none of this evidence was presented to Judge Doyle. Namely, Judge Doyle was not apprised of the notice of suspension sent by the Department on March 12, 1993, nor is this notice contained in the original record. In addition, evidence that appellant filed a pro se appeal on April 6, 1993, challenging his license suspension is also not of record. Neither in his petition to the trial court nor at the hearing did appellant offer any explanation as to why he waited until November 9, 1993, to appeal his January 15, 1993 conviction. As appellant failed to present any evidence that he acted promptly in filing his petition for allowance of appeal nunc pro tunc, I am constrained to affirm the decision of the trial court.

      . It is to be noted that the Statutoiy Appeals section of the Court of Common Pleas of Allegheny County, Civil Division, is the appropriate forum for the presentment and argument of an appeal of a summary conviction of a Motor Vehicle Code violation and the Petition for Allowance of Appeal Nunc Pro Tunc in regard thereto. Commonwealth v. Smirga, 432 Pa.Super. 286, 638 A.2d 229, 232 (1994).

      . It is to be noted that the official record transmitted to this Court contains no evidence of a statutory appeal being either filed by the appellant or docketed on April 6, 1993, and listed by the prothonotary for a hearing on September 22, 1993. The only proof of such a document being filed appears in the appellant’s appellate brief as part of the reproduced record attached thereto. See Appellant’s Brief at 5 and Reproduced Record at R 2a-3a.
      As has been oft-stated in this jurisdiction, information contained in an appellate brief is not a substitute for a deficiency in the official record and may not be looked at by an appellate court to fill the void. See Commonwealth v. Rini, 285 Pa.Super. 475, 427 A.2d 1385 (1985); see also McCormick v. Allegheny General Hospital, 364 Pa.Super. 210, 527 A.2d 1028 (1987); Commonwealth v. Santana, 321 Pa.Super. 299, 468 A.2d 488 (1983). We are limited to the content of the appellant’s Petition since no testimony (only oral argument by counsel) was proffered before the court below. See Commonwealth v. Nicholas, 405 Pa.Super. 242, 592 A.2d 98, 100 * n. 6 (1991).
      We make mention of the appellant’s filing of a pro se appeal on April 6, 1993, to his license suspension (without condoning the referral in appellate briefs to evidence not in the official record) since it does not impact on our finding that the criminal conviction sought to be reviewed via the Petition was not filed "promptly.” See discussion infra.

      . Subject matter jurisdiction is not created merely by the agreement of a litigant to pay a fine and/or plea guilty "where it otherwise should not be.” Turner v. May Corp., 285 Pa.Super. 241, 427 A.2d 203, 204 (1981). Further, inquiry into the area of subject matter jurisdiction may be raised at any time by the parties or sua sponte by the court. Id. at 245 n. 2, 427 A.2d at 204 n. 2.
      We note that the appellant raised the issue of subject matter jurisdiction below without success and again on appeal rendering it reviewable by this Court.

      . Section 5553(e) reads: "No proceedings shall be held or action taken pursuant to a summary offense under Title 75 subsequent to two years after the commission of the offense.” 42 Pa.C.S.A. § 5553(e).

      . Resolution of this factual-void is crucial to the case: 1) If the appellant did not receive "notice” of suspension until September of 1992, the time between the date of the citation and notice of suspension would not be tolled and the statute of limitations under Section 5553(e) would have been violated warranting a dismissal of the Motor Vehicle citation reduced to judgment (with the plea of guilty and payment of a fine), cf. Marr, supra; 2) If the appellant was cognizant that his operating privileges were in jeopardy when the citation was issued in June of 1989, his inaction until September of 1992 (by contacting PennDOT and the District Justice to seek avoidance of a suspension of his license) would toll the statute of limitations per Section 5553(e). Such conduct, being attributable to the appellant, forestalls the running of the statute of limitations and renders the District Justice’s acceptance of the appellant’s plea of guilty and payment of fine timely. See Man, supra; Quinn, supra; Commonwealth v. Markley, 375 Pa.Super. 231, 544 A.2d 72 (1988).
      A record is necessary on remand to resolve the factual scenarios outlined above by the court initially presented with the Petition. Baker v. City of Philo., 145 Pa.Cmwlth. 421, 603 A.2d 686 (1992).

      . Although appellant's Petition for Allowance of Appeal Nunc Pro Tunc was not filed until November 9, 1993, according to the record appellant presented the petition to the court on October 14, 1993, at which time the petition was argued. The order denying appellant’s Petition for Allowance of Appeal was signed October 26, 1993. For purposes of uniformity, I will use the filing date of November 9, 1993.

      . I believe that subject matter jurisdiction is not at issue, as 42 Pa. C.S.A. § 5553(e) is a statute of limitations which defense can be waived. See Commonwealth v. Stover, 372 Pa.Super. 35, 538 A.2d 1336 (1988), appeal denied, 520 Pa. 604, 553 A.2d 967 (1988).

      . Both the notice from the Department and appellant’s statutory appeal are appended to his brief. However, as the majority states, information contained in an appellate brief is not a substitute for a deficiency in the official record and may not be looked at by this appellate court to fill the void. Commonwealth v. Rini, 285 Pa.Super. 475, 427 A.2d 1385 (1985).


source: Caselaw Access Project

author: TAMILIA, Judge: FORD ELLIOTT, Judge,

license: Public Domain

text:
    665 A.2d 495
    COMMONWEALTH of Pennsylvania v. Robert Paul KEENE, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 2, 1995.
    Filed Sept. 15, 1995.

      David Crowley, Public Defender, Bellefonte, for appellant.
    J. Karen Arnold, Assistant District Attorney, Bellefonte, for Commonwealth, appellee.
    Before TAMILIA, HUDOCK and FORD ELLIOTT, JJ.
   TAMILIA, Judge:

Robert Keene appeals the mandatory minimum sentence of ninety (90) days’ imprisonment and a $1,000 fine imposed following his conviction of driving while operating privilege is suspended or revoked, driving under the influence related, 75 Pa.C.S. § 1543(b). We affirm.

Appellant’s abysmal driving record preceding the incident at issue is as follows. On November 18, 1983, appellant was arrested for DUI and received a one-year suspension effective January 1,1984 for refusing to submit to chemical testing. In addition to a 30-day license suspension imposed following conviction of the offense (effective April 10, 1985), Keene was accepted into the Accelerated Rehabilitative Disposition (ARD) program. He next was arrested for DUI on May 3, 1987 and again he refused chemical testing thereby incurring a one-year suspension for the refusal, effective May 20, 1987, and an additional year for the conviction, effective May 20, 1988. His third arrest for DUI was effectuated on March 18, 1988 and again he was convicted of the offense. Because it was his third major violation within a five-year period, Keene was subject by PennDOT to a five-year license revocation under the habitual offenders provision of the Vehicle Code. Said suspension would run from May 20, 1989 through May 20, 1994. It was this suspension under which Keene was operating his mini-bike on May 18,1991, when he was charged and subsequently convicted of driving under suspension/DUI related.

Now on appeal from the judgment of sentence which followed, Keene raises one issue for our consideration:

Whether there was sufficient evidence to convict for the offense of driving under suspension — D.U.I. related where the driving under the influence suspension period has expired and at the time of the arrest the driver is under suspension as an habitual offender?

(Appellant’s brief, p. 5.) He argues he was sentenced improperly under section 1543, which provides in relevant part:

§ 1543. Driving while operating privilege is suspended or revoked
(a) Offense defined. — Except as provided in subsection (b), any person who drives a motor vehicle on any highway or trafficway of this Commonwealth after the commencement of a suspension, revocation or cancellation of the operating privilege and before the operating privilege has been restored is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of $200.
(b) Certain offenses. — Any person who drives a motor vehicle on any highway or trafficway of this Commonwealth at a time when their operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitation Disposition for a violation of section 3731 (relating to driving under the influence of alcohol or controlled substance) or because of a violation of section 1547(b)(1) (relating to suspension for refusal) or 3731 shall, upon conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period of not less than 90 days.

Keene contends a license suspension under the habitual offenders provisions of the Vehicle Code is not a DUI-related suspension and therefore claims that since his five-year suspension was under section 1542 as a habitual offender, he could not be sentenced under section 1543(b) because that section is applicable only to DUI-related suspensions and revocations.

Appellant relies upon Commonwealth v. Taylor, 390 Pa.Super. 571, 568 A.2d 1320 (1990). In Taylor, only appellant’s third Vehicle Code violation was DUI-related while his first two were non-DUI offenses. After his DUI-related offense, he entered an ARD-DUI program which required his license to be suspended for three months. Additionally, consecutive to this three-month suspension term, appellant’s license was set to be revoked for five years under the habitual offenders provisions. Although appellant completed the three-month ARD suspension term without incident, he was arrested for driving while the five-year revocation period was in effect. The trial court sentenced him under section 1543(b) upon the premise that he had violated the conditions of the ARD-DUI program; Taylor appealed.

This Court reversed and remanded upon finding that Taylor could not be sentenced under section 1543(b) since his ARD-DUI suspension period had already expired at the time of the arrested.

[Appellant’s] suspension relevant to subsection [1543](b) [for ARD-DUI] was for three months only and that the five year suspension [for habitual offenders] handed appellant was not a condition of acceptance of the ARD but merely a result of such acceptance, (plus the presence of two prior traffic convictions).
Thus, it is really rather elementary that appellant was not caught driving while under suspension as a condition of acceptance of ARD and therefore falls outside of [§ 1543(b)]....

Id. at 574-75, 568 A.2d at 1322 (emphasis in original). We therefore found section 1543(b) was not applicable to appellant Taylor.

We find the case sub judice distinguishable. Unlike Taylor, Keene’s Vehicle Code violations within the last eleven years have all been DUI-related offenses; further, Keene was not involved in a three-month suspension under an ARD-DUI program for his most recent DUI conviction. Instead, Keene’s accumulated convictions for three DUI offenses resulted in a five-year suspension as a habitual offender under section 1542. Thus, we find without merit the argument that the five-year suspension being served by Keene, although caused by DUI violations, was not related thereto as defined in section 1543(b) in that that section requires a defendant to “receive notice he is under a Driving Under the Influence related suspension at the time he is caught driving.” (Appellant’s brief at 9.) We find appellant’s three consecutive violations of section 3731 for driving under the influence of alcohol, and his driving while the resulting five-year revocation was in effect, required the court to sentence him under section 1543(b). The relevant text of section 1543(b) states:

(b) Any person who drives a motor vehicle on any highway ... at a time when their operating privilege is suspended or revoked ... because of a violation of section 3731 ... shall, upon conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period of not less than 90 days.

(Emphasis added.) Further, as we can assume appellant believes he should have been sentenced under section 1543(a), resulting only in a $200 fine, we find this theory would produce an anomalous result that the legislature certainly did not intend. As we stated in Taylor, “[t]he purpose of the distinctions between subsections (a) and (b) in 75 Pa.C.S.A. § 1543 is to treat people caught driving while under suspension for a DUI or DUI related offense more severely than those caught driving under a more general suspension.” Id. at 570, 568 A.2d at 1323. A sentence for appellant under section 1543(a) would unjustly ignore the fact that his license was revoked as a direct result of acquiring three consecutive DUI convictions within a period of less than two years.

Our analysis of section 1543(b) is furthered by Commonwealth v. Nuno, 385 Pa.Super. 6, 559 A.2d 949 (1989). Appellant Nuno was convicted of his first DUI offense before the commencement of an already scheduled five-year revocation period for non-DUI related habitual offenses. The suspension for this first DUI conviction was set to begin after the expiration of the five-year revocation period. In the midst of the five-year suspension, Nuno was convicted of a second DUI-related offense and the court sentenced him under section 1543(b).

On appeal, Nuno argued his second DUI offense could not be the basis for a section 1543(b) violation, driving while a license was revoked for DUI-related offense, because his license revocation at that time was only for the non-DUI offenses. He further argued that he could not violate section 1543(b) until the expiration of the five-year revocation term and the commencement of the consecutive one-year suspension for his first DUI offense. We rejected this argument by stating:

We hold that when a person receives notice that their operating privilege is or will be suspended or revoked for a D.U.I. related offense, that person is subject to the penalties of § 1543(b). That person will be subject to the penalties of § 15j3(b) throughout any current suspension or revocation and any subsequent suspensions or revocations until the end of their D.U.I. related suspension or revocation.

Id. at 9, 559 A.2d at 951 (emphasis added). In the case sub judice, we similarly find that appellant was properly sentenced under section 1543(b) since he unlawfully operated a vehicle with a license that had been revoked for habitual DUI-related offenses.

Moreover, our legislature has taken the steps necessary to avoid situations such as this one from occurring in the future. Effective September 12,1995, section 1543(b) has been amended to provide as follows:

(b) Certain offenses.—
(1) Any person who drives a motor vehicle on any highway or trafficway of this Commonwealth at a time when their operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative disposition for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) or because of a violation of section 1547(b)(1) (relating to suspension for refusal) or 3731 shall, upon conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period of not less than 90 days.
(2) this subsection shall apply to any person against whom one of these suspensions has been imposed whether the person is currently serving this suspension or whether the effective date of suspension has been deferred under any of the provisions of section 1544 (relating to additional period of revocation or suspension). This provision shall also apply to any revocation imposed pursuant to section 1542 (relating to revocation of habitual offender’s license) if any of the enumerated offenses was for a violation of section 3731.

In keeping with the above analysis of the statutory and case law as it applies to the facts of this case, we affirm the judgment of sentence imposed by the trial court.

Judgment of sentence affirmed.

FORD ELLIOTT, J., files a dissenting opinion.

FORD ELLIOTT, Judge,

dissenting:

Under the facts and circumstances of this case, I, like the majority, believe Keene’s driving record warrants the penalties imposed by 75 Pa.C.S.A. 1543(b). However, I am precluded from joining the majority opinion as I believe it conflicts with Commonwealth v. Taylor, 390 Pa.Super. 571, 568 A.2d 1320 (1990). Further, because my reading of Taylor and its predecessor Commonwealth v. Nuno, 385 Pa.Super. 6, 559 A.2d 949 (1989), leads me to conclude that they, too, are in conflict, I am constrained to disagree with the majority and therefore respectfully dissent.

I reiterate the relevant facts in this case. On November 18, 1983, Keene received a one-year suspension, effective January 31, 1984, for refusing to submit to chemical testing, a violation of 75 Pa.C.S.A. § 1547. Thereafter, Keene was found guilty of violating 75 Pa.C.S.A. § 3731, DUI, for the November 18,1983 incident. He accepted Accelerated Rehabilitative Disposition (ARD) and received a thirty-day suspension, effective April 10, 1985. On May 3, 1987, Keene again refused chemical testing, incurring a one-year suspension, effective May 20, 1987. His DUI conviction for the incident resulted in a one-year suspension, effective May 20, 1988. Keene was arrested a third time for DUI on March 18, 1988, and was subsequently convicted. Because this represented his third major violation within a five-year period, Keene received a five-year license revocation pursuant to 75 Pa.C.S.A. § 1542, effective May 20, 1989. On May 18, 1991, the police charged Keene with operating a vehicle while under a DUI-related revocation, a violation of 75 Pa.C.S.A. § 1543(b). The trial court entered a finding of guilty, sentencing Keene to 90 days in prison and fining him $1,000.

On appeal, Keene raised one issue.

Whether there was sufficient evidence to convict for the offense of driving under suspension — D.U.I. related where the driving under the influence suspension period has expired and at the time of arrest the driver is under suspension as an habitual offender?

Initially, I will set forth the provisions of 75 Pa.C.S.A. § 1543 and then address the two leading cases which have dealt with the application of this statute. 75 Pa.C.S.A. § 1543 provides in pertinent part:

(a) Offense defined. — Except as provided in subsection (b), any person who drives a motor vehicle on any highway or trafficway of this Commonwealth after the commencement of a suspension, revocation or cancellation of the operating privilege and before the operating privilege has been restored is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of $200.
(b) Certain offenses. — Any person who drives a motor vehicle on any highway or trafficway of this Commonwealth at a time when their operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative Disposition for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) or because of a violation of section 1547(b)(1) (relating to suspension for refusal) or 3731 shall, upon conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period of not less than 90 days.

75 Pa.C.S.A. § 1543 (emphasis added).

In Commonwealth v. Nuno, 385 Pa.Super. 6, 559 A.2d 949 (1989), a panel of this court addressed the issue of whether a licensee was subject to the harsher penalties contained in § 1543(b), where the license suspension for the DUI-related offense had yet to take effect. In that case, upon receiving notice of Nuno’s third major conviction, none of which was DUI related, the Department of Transportation (Department) informed him that as a result of his habitual offender status, his privileges would be revoked for five years pursuant to 75 Pa.C.S.A. § 1542, effective December 12,1984. On August 25, 1984, Nuno was charged with DUI and refused to submit to chemical testing. As such, the Department sent him a notice informing him that effective January 12, 1990, his operating privileges would be suspended for one year. Nuno was found guilty of the August 25, 1984, DUI offense and received notice that his privileges would be revoked for two years effective January 12, 1991. On August 8, 1987, Nuno was stopped and charged with numerous offenses including driving while under suspension, DUI related, and sentenced to ninety days in jail pursuant to § 1543(b).

Nuno conceded that on August 8, 1987, his operating privileges were revoked. However, he argued that because the five-year revocation was due to his habitual offender status, which was non-DUI related, he was not subject to § 1543(b). He argued that he could not violate § 1543(b) until January 12, 1990, when his DUI-related suspension and revocation commenced. This court refused to accept Nuno’s argument because to do so “would allow him to escape punishment for driving while suspended, D.U.I. related, simply because he has incurred prior suspensions and revocations that must run before his D.U.I. suspension and revocation even begin.” Id. at 9, 559 A.2d at 950-951. This court went on to state:

We hold that when a person receives notice that their operating privilege is or will be suspended or revoked for a D.U.I. related offense, that person is subject to the penalties of § 1543(b). That person will be subject to the penalties of § 1543(b) throughout any current suspension or revocation and any subsequent suspensions or revocations until the end of their D.U.I. related suspension or revocation.

Id. at 9, 559 A.2d at 951.

Subsequent to Nuno, a panel of this court decided Commonwealth v. Taylor, 390 Pa.Super. 571, 568 A.2d 1320 (1990). In Taylor, as a condition of acceptance into an ARD program, the trial court, pursuant to 75 Pa.C.S.A. § 3731(e)(6)(h), imposed a three-month suspension upon the licensee. The effective date of the suspension was June 4, 1987. Because this represented Taylor’s third major violation, the Department, in accordance with 75 Pa.C.S.A. § 1542, revoked Taylor’s privileges for five years effective September 4, 1987. Thereafter, Taylor was arrested on March 12, 1988, and charged with violating 75 Pa.C.S.A. § 1543(b).

A panel of this court determined that at the time of his arrest, Taylor was not under a DUI-related suspension or revocation. The court reasoned that § 1543(b) prohibited driving while under suspension “as a condition of’ ARD. Thus, “the suspension relevant to subsection (b) was for three months only and ... the five year suspension handed appellant was not a condition of the ARD but merely a result of such acceptance,----” Id. at 574, 568 A.2d at 1322 (emphasis deleted). The court went on to explain that the five-year revocation was imposed because Taylor had three major convictions. Under § 1542, a person who accumulates three major convictions, within a five year period is considered a habitual offender. Convictions subject to § 1542 include:

(b) Offenses enumerated. — ....
(1) Any offense set forth in section 1532 (relating to revocation or suspension of operating privilege).
(2) Operation following suspension of registration as defined in 1371 (relating to operation following suspension of registration).
(3) Making use of or operating any vehicle without the knowledge or consent of the owner or custodian thereof.
(4) Utilizing a vehicle in the unlawful transportation or unlawful sale of alcohol or any controlled substance.
(5) Any felony in the commission of which a court determines that a vehicle was essentially involved.
(c) Accelerative Rehabilitative Disposition as an offense. — Acceptance of Accelerative Rehabilitative Disposition for any offense enumerated in subsection (b) shall be considered an offense for the purposes of this section.

75 Pa.C.S.A. § 1542(b) and (c) (footnote omitted).

Thus, the court decided that Taylor’s revocation was imposed for being a habitual offender, the penalty for which is the same regardless of whether any of the underlying offenses are DUI related:

The suspension under 75 Pa.C.S.A. § 1542 results because the offender is considered habitual, as evidenced by the commission of three offenses, not because he or she has been convicted of a DUI offense. It is immaterial to that specific section whether or not one or more of the offenses happens to be a DUI offense.... In determining who is a habitual offender, the DUI offense is treated no differently than the other enumerated offenses and if it happens that one or more of the offenses underlying a habitual offender suspension is a DUI offense, the suspension given does not vary. This is so simply because the focus in such a scenario, is not upon the DUI conviction, but upon a habitual offending of the vehicle code.

Id. at 577, 568 A.2d at 1323 (emphasis added).

In other words, although in Taylor the third major violation which triggered the habitual offender five-year revocation was DUI related, it did not render the five-year revocation DUI related. The court reasoned that disparate treatment would result depending on whether a DUI offense was the first, second, or third violation leading to habitual offender status. For example, if the first and second violations are non-DUI related but the third violation, which triggers habitual offender status, is DUI related, the offender is arguably subject to (b) for the entire five years. However, if the first and second violations are DUI related but the third violation which triggers habitual offender status is non-DUI related, then arguably no part of the ensuing five-year revocation is subject to (b).

Nuno and Taylor illustrate the problem associated with applying § 1543(b) to licensee’s who have attained habitual offender status via DUI-related offenses. I recognize that both cases produced conflicting results. However, because § 1543(b) is penal in nature, it must be strictly construed and, as such, I am constrained to follow the reasoning set forth in Taylor.

I recognize that in this case all three of appellant’s offenses leading to his habitual offender status are DUI related. Upon receiving notification of Keene’s latest § 3731 conviction, the Vehicle Code imposed a duty upon the Department to implement a suspension. Namely, 75 Pa.C.S.A. § 1532(b)(3) provides:

(3) The department shall suspend the operating privilege of any driver for 12 months upon receiving a certified record of the driver’s conviction of section 3731 (relating to driving under influence of alcohol or controlled substance) ...

(Emphasis added.) However, once a licensee accumulates three major convictions within five years, the period of suspension or revocation is enhanced in accordance with the provisions set forth in the habitual offender statute, 75 Pa. C.S.A. § 1542, which provides in pertinent part:

(a) General rule. — The department shall revoke the operating privilege of any person found to be a habitual offender pursuant to the provisions of this section. A ‘habitual offender’ shall be any person whose driving record, as maintained in the department, shows that such person has accumulated the requisite number of convictions ...
(d) Period of revocation. — The operating privilege of any person found to be a habitual offender under the provisions of this section shall be revoked by the department for a period of five years.

(Emphasis added.)

Accordingly, Keene’s third DUI on March 18, 1988, triggered the enhanced five-year revocation, under § 1542, rather than the one-year suspension provided for in § 1532(b)(3). As such, when Keene was arrested on May 18, 1991, he was driving while under a five-year revocation which resulted from his habitual offender status. The underlying offenses leading to habitual offender status are irrelevant. Under the reasoning of Taylor, Keene was operating his vehicle while under a five-year habitual offender revocation. He was not operating a vehicle while under a DUI-related suspension or revocation, which is the prohibited conduct of 75 Pa.C.S.A. § 1543(b).

As this court stated in Taylor, supra, “[t]he purpose of the distinctions between subsections (a) and (b) in 75 Pa.C.S.A. § 1543 is to treat people caught driving while under suspension for a DUI or DUI-related offense more severely than those caught driving under a more general suspension.” Id. at 577, 568 A.2d at 1323. Unfortunately, as set forth in Taylor, because § 1542 does not differentiate between habitual offenders who have reached that status because of one or more underlying DUI convictions, and those habitual offenders who have no underlying DUI-related convictions, I disagree with the majority that Keene is subject to the harsher penalties of § 1543(b).

I readily admit to the fact that this reading of § 1542 and § 1543 produces an absurd result in this case. That is, at no time during Keene’s five-year revocation would he be subject to § 1543(b), even though all three violations leading to his § 1542 revocation were DUI offenses. Recently, the legislature has taken appropriate action to remedy this very situation. Namely, 75 Pa.C.S.A. § 1543(b) amended December 12, 1994, effective in nine months, provides:

(b) Certain offenses.—
(1) Any person who drives a motor vehicle on any highway or trafficway of this Commonwealth at a time when their operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative Disposition for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) or because of a violation of section 1547(b)(1) (relating to suspension for refusal) or 3731 shall, upon conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period of not less than 90 days.
(2) This subsection shall apply to any person against whom one of these suspensions has been imposed whether the person is currently serving this suspension or whether the effective date of suspension has been deferred under any of the provisions of section 1544 (relating to additional period of revocation or suspension). This provision shall also apply until the person has had the operating privilege restored. This subsection shall also apply to any revocation imposed pursuant to section 1542 (relating to revocation of habitual offender’s license) if any of the enumerated offenses was for a violation of section 3731.

(Emphasis added.)

However, our decision today must be governed by the current version of 75 Pa.C.S.A. § 1543(b) and this court’s decision in Taylor. Constrained by these precedents, I would vacate the order of the trial court and dismiss the charges against appellant.

      . This case was originally appealed to this Court in 1993. At that time, we found appellant had not been advised of his right to file post-verdict motions and accordingly were constrained to remand. Commonwealth v. Keene, 433 Pa.Super. 610, 636 A.2d 1212 (1993) (unpublished memorandum). This appeal followed the filing and denial of the motions.

      . Recently, this court decided Commonwealth v. Rosenberger, 426 Pa.Super. 37, 626 A.2d 181 (1993), which relied on Taylor, supra. In that case, a driver's right to apply for a license was suspended for one year because of a section 3731 conviction. After the expiration of that suspension, the driver, while under a five-year revocation as a habitual offender, was charged with violating section 1543(b). A panel of this court following Taylor, held that after completion of a DUI-related suspension (licensee's first offense leading to habitual offender status), a driver, although now operating under a non-DUI-related revocation (five-year revocation as a habitual offender), cannot be convicted under section 1543(b). In Rosenberger, the first underlying offense leading to habitual offender status was DUI related for which the suspension had expired before the five-year revocation commenced. Thus, the Rosenberger court distinguished Nuno, because in that case the DUI-related offense was the last obtained by the licensee and had not yet commenced.


author: ROWLEY, President Judge:

text:
    665 A.2d 502
    GENERAL ACCIDENT INSURANCE COMPANY OF AMERICA v. Christine PARKER, Appellant.
    Superior Court of Pennsylvania.
    Argued June 28, 1995.
    Filed Sept. 26, 1995.

      Frances M. Minnis, Philadelphia, for appellant.
    Dale S. Ardizzone, Philadelphia, for appellee.
    Before ROWLEY, President Judge, and HUDOCK and CERCONE, JJ.
   ROWLEY, President Judge:

Appellant, Christine Parker (“Parker”), appeals from the order entered in the Court of Common Pleas of Philadelphia County. We affirm.

Parker was injured when the automobile she was driving was struck by an uninsured vehicle. Parker was driving a car owned by Kathy Moore (“policy holder”) and insured by appellee, General Accident Insurance Company of America (“General Accident”). The policy of insurance issued to Kathy and Marcellus Moore contained an executed “Rejection of Uninsured Motorist Protection.” Parker presented a claim for uninsured motorist benefits to General Accident under the policy covering the automobile owned by the policy holder. General Accident denied the claim on the basis that the policy holders had waived uninsured motorist coverage. The underlying action was commenced by General Accident’s complaint in equity seeking a declaratory judgment concerning coverage under the Moore policy. General Accident then filed a motion for summary judgment which was granted. This appeal followed.

Parker presents the following issue for our consideration: Did the trial court commit an error of law granting appellee’s motion for summary judgment based on its determination that appellant is not entitled to uninsured motorist benefits from General Accident since the Moore’s policy did not provide any uninsured motorist coverage?

The standard of review of an order granting summary judgment is well established. Summary judgment is properly granted only “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 judgment as a matter of law” Pa.R.C.P. 1035(b). In resolving a motion for summary judgment, the court must examine the record in the light most favorable to the non-moving party and resolve any doubt against the moving party. Washington Federal Sav. and Loan Ass’n v. Stein, 357 Pa.Super. 286, 289, 515 A.2d 980, 981 (1986). The court is not to decide issues of fact, but merely to determine whether any such issues exist. Id. See also Ducjai v. Dennis, 540 Pa. 103, 656 A.2d 102 (1995). “We will overturn a trial court’s entry of summary judgment only if we find an error of law or clear abuse of discretion.” DeWeese v. Anchor Hocking, 427 Pa.Super. 47, 50, 628 A.2d 421, 423 (1993).

Considered in light of the foregoing principles, the record discloses the following facts. Moore’s policy with General Accident contained a “Rejection of Uninsured Motorist Protection,” form as provided by the Motor Vehicle Financial Responsibility Law (“MVFRL”), 75 Pa.C.S. § 1701 et seq. Moore’s policy contained the following waiver of uninsured motorist coverage:

By signing this waiver I am rejecting uninsured motorist coverage under this policy, for myself and all relatives residing in my household. Uninsured coverage protects me and relatives living in my household for losses and damages suffered if injury is caused by the negligence of a driver who does not have any insurance to pay for losses and damages. I knowingly and voluntarily reject this coverage.

75 Pa.C.S. § 1731(b).

Pursuant to the MVFRL, uninsured motorist coverage is optional, not mandatory.

§ 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.

75 Pa.C.S. § 1731(a).

Parker contends that because she is not a resident relative of the policy holder, neither General Accident nor their named insured can reject uninsured motorist benefits on her behalf. Consequently, General Accident cannot claim that the policy holder’s waiver of the uninsured benefits applies to Parker. This argument is without merit.

It is well established that:

An injured person who makes a claim for uninsured motorist benefits under a policy to which he is not a signatory is in the category of a third party beneficiary. Historically, this Court has held that third party beneficiaries are bound by the same limitations in the contract as the signatories of that contract. The third party beneficiary cannot recover except under the terms and conditions of the contract from which he makes a claim. Grim v. Thomas Iron Co., 115 Pa. 611, 8 A. 595 (1887). “[T]he rights of an alleged third party beneficiary may arise [sic] no higher than the rights of the parties to the contract and ... they are vulnerable to the same limitations which may be asserted between the promisor and the promisee.” Jewelcor Jewelers & Distributors, Inc. v. Corr, 373 Pa.Super. 536, 553, 542 A.2d 72, 80 (1988), appeal denied, sub nom., Granjewel Jewelers & Distributors, Inc. v. Corr, 524 Pa. 608, 569 A.2d 1367 (1989), citing Williams v. Paxson Coal Co., 346 Pa. 468, 31 A.2d 69 (1943). “Where there is a contract, the right of a beneficiary is subject to any limitation imposed by the terms of the contract.” Restatement (Second) of Contracts, § 309, Comment b (1981).

Johnson v. Pa. Nat. Ins. Cos., 527 Pa. 504, 508, 594 A.2d 296, 299 (1991) (emphasis added). Parker’s rights, as a third party beneficiary, are therefore subject to the same limitations in the policy as are Moore’s, the policy holder. Since Moore waived uninsured motorist benefits, Parker cannot make a claim for uninsured motorist benefits pursuant to the terms of the General Accident policy.

Therefore, since the policy holder in the instant case waived uninsured motorist coverage, General Accident has no obligation to provide uninsured motorist coverage to Parker. There is no genuine issue of material fact raised in this case. Consequently, summary judgment was properly granted in favor of General Accident. Stein, supra.

Order affirmed.

      . It should be noted that:
      Before the passage of Act 6 [MVFRL], it was indeed the case that all insured vehicle operators were required to have uninsured and underinsured motorist coverage. After the passage of Act 6, uninsured and underinsured motorist coverage became, in the words of the Statute, ‘‘optional”. It is a principle of statutory construction that words and phrases are to be construed according to their common usage. In plain English, then, "optional” means "not required”.

        Pa. Financial Responsibility Assigned Claims Plan v. English, 427 Pa.Super. 105, 111-12, 628 A.2d 847, 850 (1993), rev’d on other grounds, 541 Pa. 424, 664 A.2d 84 (1995) (citations omitted).
      In English, the Pennsylvania Supreme Court addressed the issue of whether “the 1990 Amendments (Act 6) to the Motor Vehicle Financial Responsibility Law (MVFRL), which in part renders uninsured and underinsured coverage optional, effectively eliminates the obligation of the assigned Claims Plan, 75 Pa.C.S. § 1751-1757 to pay benefits to persons otherwise eligible who are injured while driving or occupying an uninsured vehicle.” 541 Pa. at 424, 664 A.2d at 84 (emphasis added) (footnotes omitted). In addressing the intent behind Section 1752(a)(5) of the MVFRL, the Supreme Court held that "the enactment of those provisions rendering uninsured and underinsured motorist coverage optional simply cannot be deemed to have also perforce eliminated coverage under the Assigned Claims Plan for all but essentially pedestrians without any corresponding amendment to § 1752(a)(5).” 541 Pa. at 432, 664 A.2d at 88. Thus, the decision of the Supreme Court in English is not contrary to the conclusion we reach here.


author:
TAMILIA, Judge:
      McEWEN, Judge,

text:
    665 A.2d 504
    Russell L. BROWN, Sr., and Roselyn Brown, His Wife, Appellants v. Jay B. HERMAN, M.D.
    Superior Court of Pennsylvania.
    Submitted July 24, 1995.
    Filed Sept. 25, 1995.

      Steven Savor, Jr., Pittsburgh, for appellants.
    James A. Wood, Pittsburgh, for appellee.
    Before McEWEN, TAMILIA and OLSZEWSKI, JJ.
   TAMILIA, Judge:

Russell L. Brown and Roselyn Brown, his wife, appeal from the May 19, 1994 Order granting appellee’s motion for summary judgment. Summary judgment was entered on the basis that a release signed by appellants in a prior products liability action precluded their subsequent medical malpractice suit against appellee.

On January 5, 1987, appellant Russell Brown was injured when the stool on which he was sitting collapsed. Appellants brought suit against the manufacturer and retailer of the stool alleging various injuries (“products liability action”). On May 14, 1989, appellee, Dr. Jay B. Herman, surgically implanted a penile prosthesis in appellant Russell Brown. On July 27, 1990, appellants filed suit against appellee alleging negligent implantation of the prosthesis (“medical malpractice action”). Thereafter, on December 6, 1991, appellants filed a supplemental pretrial statement in the products liability action in which they alleged, inter alia, that the penile prosthesis surgery was necessitated by impotence caused by the 1987 accident. On January 29, 1992, appellants settled their products liability action for $250,000 and executed a release which reads, in relevant part:

FULL AND FINAL RELEASE
FOR AND IN CONSIDERATION of the sum of Two Hundred Fifty Thousand Dollars ($250,000.00) to us in hand paid by Admiral Industries, Montgomery Ward & Company and Scottsdale Insurance Company, the receipt of which is hereby acknowledged, we, Russell Brown and Roselyn Brown, being of lawful age, hereby fully and forever release, acquit and discharge the said Admiral Industries, Montgomery Ward & Company and Scottsdale Insurance Company (Releasees) AND ANY AND ALL OTHER PERSONS, INSURERS, FIRMS, PARTNERSHIPS AND CORPORATIONS which are or might be claimed to be liable to us, our heirs, administrators, executors, successors and assigns from any and all actions, causes of action, claims and demands of whatsoever kind or nature on account of any and all known and unknown injuries, losses and damages by us or our property sustained or received on or about the 5th day of January, 1987, when an incident occurred at our residence where I, Russell Brown, fell from a chair/stool, and about which specific allegations were made by us in pleadings filed at the below docket number for which injuries, losses and damages we claimed the said Admiral Industries, Montgomery Ward & Company and Scottsdale Insurance Company to be legally liable and on account of which suit was brought at No. G.D. 88-04918 in the Court of Common Pleas of Allegheny County, it being understood and agreed that the acceptance of said sum is in full accord and satisfaction of a disputed claim and that the payment of said sum is not an admission of liability by the above named Releasees.
It is expressly understood and agreed that this release and settlement is intended to cover and does cover all now known injuries, losses and damages to us and also any future injuries, losses and damages not now known or anticipated, but which may later develop or be discovered, including all the effects and consequences thereof.]

(R.R., p. 54.)

On May 19, 1994, the day scheduled for the trial of appellants’ medical malpractice action, appellee’s counsel obtained this release and presented it to the trial court. Citing the pretrial statement filed on December 6,1991, appellee claimed that since the impotence, and hence the need for a penile prosthesis, arose as a result of the 1987 accident, the above-quoted release barred appellants’ suit against appellee. The trial court agreed and granted appellee’s motion for summary judgment. The court subsequently denied appellants’ motion for reconsideration and this appeal followed.

The award of summary judgment to appellee was based on the trial court’s reading of Buttermore v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (1989). In Buttermore, the plaintiff was injured in an automobile accident caused by another driver, Frances Moser, and transported to the defendant-hospital by ambulance. Plaintiff subsequently settled her claim against Moser for $25,000 and executed a release which provided:

I/We being of lawful age, for myself/ourselves, my/our heirs, administrators, executors, successors and assigns hereby remise, release, acquit and forever discharge Frances Moser, et al. His/her successors and assigns, and/or his, her, their, and each of their associates, heirs, executors and administrators and any and all other persons, associations and/or corporations, whether known or unknown, suspected or unsuspected, past, present and future claims, demands, damages, actions, third party actions, causes of action, or suits at law or in equity, indemnity of whatever nature, for or because of any matter or thing done, omitted or suffered to be done, on account of or arising from damage to property, bodily injury or death resulting or to result from an accident which occurred on or about the 3rd day of December, 1981 at or near Aliquippa, Pennsylvania for which ITWe have claimed the said Frances Moser, et al. to be legally liable, but this release shall not be construed as an admission of such liability.

Thereafter, plaintiff instituted suit against the defendant-hospital alleging negligent treatment of her accident-related injuries. The hospital raised the Moser release in defense and the trial court granted summary judgment on that basis. We reversed and the Supreme Court granted allocatur. The Supreme Court began its analysis by characterizing the issue before it as “the effect to be accorded a release which by its terms discharges all claims and parties thereto even though it results in the discharge of others who have not contributed consideration toward the release.” Buttermore, supra at 325, 561 A.2d at 735. The plaintiff argued that it was never his intent, in signing the release, to discharge the hospital from liability. The Court, construing the “ordinary meaning” of the release, id., found that a release given to a particular individual and “any and all other persons” barred subsequent suits against all tortfeasors whether or not they are specifically identified in the release. Id. In holding that the Moser release barred plaintiffs subsequent medical malpractice action, the Court noted as follows:

Parties with possible claims may settle their differences upon such terms as are suitable to them, they may include or exclude terms, conditions and parties as they can agree. In doing so, they may yield, insist or reserve such right as they choose. If one insists that to settle, the matter must end then and forever, as between them, they are at liberty to do so. They may agree for reasons of their own that they will not sue each other or any one for the event in question. However improvident their agreement may be or subsequently prove for either party, their agreement, absent fraud, accident or mutual mistake, is the law of their case.
In the instant case there is no allegation of fraud, accident or mutual mistake, therefore, as between them their agreement is their law.

Id.

Instantly, we agree with the trial court that the release executed by appellant is quite similar to the release executed in Buttermore. When read without extraneous language, the release presently before us reads as follows:

For ... $250,000 ... [the plaintiffs] ... hereby fully and forever release ... the said [defendants] ... AND ANY AND ALL OTHER PERSONS ... AND CORPORATIONS which are or may be claimed to be liable to us ... from any and all actions ... on account of any and all known and unknown injuries ... sustained or received on or about the 5th of January, 1987, when an incident occurred at our residence where [plaintiff] fell from a chair/stool, and about which specific allegations were made by us in pleadings filed at the below docket number----
It is expressly understood ... that this release ... is intended to cover ... all now known injuries ... and also any future injuries ... not known or anticipated, but which may later develop ... including all the effects and consequences thereof.

Thus, the “ordinary meaning” of this release is that appellants relinquished all right to pursue actions against all persons for all injuries, known or unknown, arising out of appellant-Russell Brown’s fall from the stool. Appellants’ attempt to distinguish the Buttermore release is therefore in vain and the trial court is correct in its conclusion that appellants released appellees from all claims for injuries arising out of the January 5,1987 accident.

However, this conclusion cannot end our inquiry. The true issue in this case is not whether the release forecloses future claims for injuries suffered when Mr. Brown fell from the stool, because it surely does, but whether the impotence suffered by Mr. Brown was caused by his fall from the stool. If the impotence was so caused, then Mr. Brown’s right to sue for the negligent implantation of the prosthesis, which was a treatment for the impotence, is precluded by the release.

Appellants claim “[t]he history, etiology and specific reasons which led the Appellant to treat with the Defendant/Appellee were unknown.... As no causative link could be established between the subsequent medical treatment issued by the Appellee and the Plaintiff/Appellant’s original injury in the first lawsuit, then obviously the release executed in the first lawsuit could not be construed to include the medical Practitioner/Appellee in the later suit.” (Appellants’ brief at 5.)

Appellants’ assertion that they are unaware of any “causative link” between Mr. Brown’s fall and his impotence is belied by a review of the pleadings filed by appellants in their products liability suit. Indeed, not only did appellants allege the existence of such a link, but they also sought to prove it via expert medical testimony. Appellants’ supplemental pretrial statement filed in the former action identifies R.C. Lin, M.D., as an expert medical witness and describes the nature of his proposed testimony as follows:

Dr. Lin will be called to testify that Mr. Brown’s penile prosthesis surgeries were necessitated by impotence resulting from his 1987 accident.

(Plaintiff’s Supplemental Pretrial Statement, p. 3, filed at Allegheny County G.D. 88-04918.)

Appellants’ apparent awareness of the causative link between the fall and impotence is further confirmed by Mr. Brown’s deposition testimony, as follows, in the instant action:

Q [BY APPELLEE’S ATTORNEY] All right. So it would be fair to say that the problem in maintaining an erection was one that you had had since 1987, after the fall?
A Yeah.
Q Or after the stool collapsed?
A That’s correct.

Deposition of Russell Brown, 3/27/91, p. 40.

Q My understanding of your testimony is that you associate your ability to maintain an erection with a pain in your back, as a result of 1987 fall. Has anyone, any physician ever offered you any reason or their opinion as to why you had the inability to maintain an erection?
A No, because before that I was maintaining an erection. I had no problem.

Id. at 49.

Q [Did] any doctor [confirm] the back pain was the reason [you] couldn’t maintain an erection?
A Yes.
Q When did you first have that confirmed?
A Dr. Hanley and Moossy did the surgery on my back. After I got out of Harmarville, because I come right out of the hospital, two weeks at home and then I went to Harmarville. I was out of Harmarville, and I mentioned it to them, because I was telling them I was having a hard time, so much pain in my back and then they said you go see a urologist.

Id. at 50.

Appellants’ offer of expert testimony in the products liability action and Mr. Brown’s deposition testimony in the instant action clearly establish that the 1987 fall caused Mr. Brown’s impotence. This is especially true in light of the fact that appellants, beyond their self-serving assertions, have offered no proof in the present case tending to rebut their prior assertion that the fall caused Mr. Brown’s impotence. Thus, impotence was an injury “sustained or received on or about the 5th day of January, 1987” and the release therefore precludes any suit alleging negligent treatment of impotence. Our conclusion is further compelled by the fact that appellants executed the release eighteen months after they filed the malpractice suit. Hence, they were clearly aware of the alleged malpractice when they relinquished their rights in exchange for $250,000.

In sum, because appellants identified impotence as an element of injury in their products liability action, the settlement in that action represents compensation for impotence. The release therefore includes impotence and appellants may not now claim otherwise in order to pursue a second satisfaction for the same injury.

Lastly, appellants claim that they had “implied contractual claims” against appellee which survived the release. (Appellant’s brief at 7.) Initially, we note that appellants first raised this claim in their statement of matters complained of on appeal and it is not therefore properly before us. Further, in the absence of a special contract whereby the physician expressly promises a certain result, it is clear that a physician does not guarantee a favorable result. Grubb v. Albert Einstein Medical Center, 255 Pa.Super. 381, 387 A.2d 480 (1978). Thus, appellants’ “implied contract” argument fails.

Based on the foregoing, we affirm the May 19, 1994 Order granting summary judgment to appellees.

Order affirmed.

McEWEN, J., filed a dissenting statement.

McEWEN, Judge,

dissenting.

While the author of the majority Opinion has, in his usual fashion, provided a perceptive analysis and persuasive expression of view, I am compelled to this dissent, because, simply put, I cannot agree that the “ordinary meaning” of the release precludes appellants from suing appellee for medical malpractice. Scrutiny of the factual and procedural chronology serves to illuminate the analysis and assembly of rationale for this dissent:

January 5,1987 Russell Brown suffers injury when the stool upon which he was sitting collapsed.
March 22, 1988 Appellants commence a products liability action against the manufacturer and retailer of the stool. April 14, 1989 Appellee, Jay B. Herman, M.D., surgically implants a penile prosthesis in Russell Brown.
July 27, 1990 Appellants commence a medical malpractice action against Jay B. Herman, M.D., the suit which is the subject of this appeal.
January 29,1992 Appellants settle, discontinue, and end the products liability action by execution of the release which is the focus of this appeal.

The release which is the focus of our study and which terminated the products liability claims and suit recites:

FOR AND IN CONSIDERATION of the sum of Two Hundred Fifty Thousand Dollars ($250,00.00) to us in hand paid by Admiral Industries, Montgomery Ward & Company and Scottsdale Insurance Company, ... we, Russell Brown and Roselyn Brown ... discharge the said Admiral Industries, Montgomery Ward & Company and Scottsdale Insurance Company (Releasees) AND ANY AND ALL OTHER PERSONS, INSURERS, FIRMS, PARTNERSHIPS, AND CORPORATIONS which are or might be claimed to be liable to us, '... from any and all actions, causes of actions, claims and demands of whatsoever kind or nature on account of any and all known or unknown injuries, losses and damages ... sustained or received on or about the 5th day of January, 1987, when ... I, Russell Brown, fell from a chair/stool, ... on account of which suit was brought at No. G.D. 8-04918 in the Court of Common Pleas of Allegheny County, it being understood and agreed that the acceptance of said sum is in full accord and satisfaction of a disputed claim and that the payment of said sum is not an admission of liability by the above named Releasees, (emphasis supplied)

The majority quite correctly states that Pennsylvania law requires that the release be interpreted according to its ordinary meaning. For my part, the ordinary meaning of the aforementioned release to any layperson, be he or she a butcher, baker, or candlestick maker, would not encompass a release for the injuries caused by a surgical misprocedure performed by Jay B. Herman, M.D., at Shadyside Hospital on April 14, 1989, some 27 months after the collapse of the faulty stool, especially where a separate and distinct lawsuit seeking damages for the asserted medical malpractice had been filed on July 27, 1990, 18 months prior to the execution of the instant release on January 29,1992.

It must be acknowledged that appellate case law concerning the meaning of the terms of releases is the subject of firm differences even among the wise and venerable jurists of the Commonwealth. Moreover, the majority certainly provides sound and valid authority for its conclusion. Nonetheless, I find the harmony of ordinary meaning in the rendition of this Court in Republic Insurance Company v. Paul Davis Systems, Inc., 431 Pa.Super. 30, 635 A.2d 1056 (1993), appeal granted, 540 Pa. 602, 655 A.2d 990 (1995), as our eminent colleague, Judge James R. Cavanaugh, in reliance on Sparler v. Fireman’s Insurance Co., 360 Pa.Super. 597, 521 A.2d 433 (1987), appeal denied, 518 Pa. 613, 540 A.2d 535 (1988) and Farrell v. Lechmanik, Inc., 417 Pa.Super. 172, 611 A.2d 1322 (1992), opined for a unanimous panel:

In Pennsylvania, the effect of a release is determined by its language which must be interpreted according to its ordinary meaning. Since the present release unambiguously releases “all persons” from “all actions”, it would initially appear that the trial court was obviously correct in concluding that the release was an effective bar to Republic’s action.... [D]espite the general terms of a release, it is not effective to bar a suit for a different cause of action (contract-tort) when it was given for a separate cause of action (tort-wrongful discharge)____ [Although the terms of a general release may be broadly interpreted even to include unnamed parties, it may only serve to release those persons who might reasonably be considered to be within the ambit of responsibility under the asserted and released cause of action. The release given here was for a discrete contract claim (homeowner’s insurance) whereas the court enforced it as to a tort claim.

Republic Insurance Company v. Paul Davis Systems, Inc., supra at 31-32, 635 A.2d at 1057-58.

Thus it is that I would vacate the order granting summary judgment and remand the case for the trial of the malpractice claims of appellants against Jay B. Herman, M.D.

      . We note our awareness of Harrity v. Medical College of PA Hospital, 439 Pa.Super. 10, 653 A.2d 5 (1994), a case addressing the same issue confronted by the Buttermore Court and presently before us. However, the release in Harrity applied only to certain claims for which causes of action were brought against a certain defendant in the underlying suit. The Harrity court explicitly distinguished Buttermore and other cases in which the releases applied to " ‘any and all’ injuries” arising from the underlying accident. Id. at 21, 653 A.2d at 11. As noted, the release before us applies to "any and all known and unknown injuries.” Thus, our facts are more akin to Buttermore and Harrity is distinguishable.

      . On this basis, we distinguish Vaughn v. Didizian, 436 Pa.Super. 436, 648 A.2d 38 (1994), a case offered in support of appellants’ position that their medical malpractice action survives the release. Indeed, in Vaughn, a case wherein the release was signed seven months prior to the plaintiff treating with the defendant/physician, our Court specifically distinguished cases in which, as here, the alleged malpractice predates the release. The Court held:
      In the case cited by our distinguished colleague in dissent ... and in each case by Didizian ... the cause of action accrued prior to the execution of the release. In this case, the cause of action accrued after the release was executed. Thus, reliance on these cases is misplaced.

        Id. at 440, 648 A.2d at 41.
      Similarly, because appellants’ "cause of action accrued prior to the execution of the release,” their reliance on Vaughn is misplaced.


author: CIRILLO, Judge:

text:
    665 A.2d 510
    Debra PATTON, Appellant v. J.C. PENNEY INSURANCE COMPANY and Hanover Insurance Company.
    Superior Court of Pennsylvania.
    Submitted Aug. 7, 1995.
    Filed Sept. 29, 1995.

      Sheldon A. Goodstadt, Philadelphia, for appellant.
    Michael E. Greenberg, Philadelphia, for J.C. Penney Insurance Co.
    Eugene Feeney, Plymouth Meeting, for Hanover Insurance Co.
    Before ROWLEY, President Judge, and CIRILLO and HOFFMAN, JJ.
   CIRILLO, Judge:

Debra Patton appeals the judgment entered in the Court of Common Pleas of Philadelphia County, confirming an arbitrator’s award in favor of J.C. Penney Insurance Company (“J.C. Penney”), and vacating an arbitrator’s award in favor of Hanover Insurance Company (“Hanover”). We affirm.

This appeal arises out of a motor vehicle accident which occurred on or about January 24, 1990. Debra Patton was crossing the intersection of Broad Street and Allegheny Avenue in the City of Philadelphia, on foot, when two uninsured motorists collided, and one of them struck her. That same car then hit a third uninsured vehicle. The second uninsured vehicle, in turn, struck a vehicle operated by a J.C. Penney insured driver, and a vehicle operated by a Hanover insured.

At the time of this accident, Patton did not own a car, nor was she a named insured on any motor vehicle policy. Moreover, Patton did not reside in a household with a relative who was a named insured and, therefore, had no insurance policy from which she could obtain uninsured motorist benefits.

Patton made a claim for uninsured motorist benefits with Hanover and J.C. Penney. The policies issued by Hanover and J.C. Penney provided for arbitration for an uninsured motorist claim which could not be amicably settled. The policies also provided that any arbitration “shall be conducted in accordance with the provisions of the Pennsylvania Uniform Arbitration Act.” The parties in the instant case could not amicably settle, yet Hanover and J.C. Penney refused to submit the matter to arbitration.

On February 25, 1991, Patton filed a petition to compel the appointment of an arbitrator against J.C. Penney and Hanover. By an order dated December 16, 1992, the petition was granted and Hanover and J.C. Penney were required to name arbitrators and to submit to arbitration.

The two arbitrations were consequently consolidated, with a single hearing before all of the arbitrators and one meeting for the purpose of deliberations. All parties named their arbitrators and selected a neutral arbitrator as well. Arnold Lovitz, Esquire, was named by J.C. Penney; Daniel Ryan, Esquire served on behalf of Hanover. Edwin J. Smith, Esquire, was the arbitrator named by Patton, and Thomas Rutter, Esquire, was the designated neutral arbitrator in this matter.

At the March 19, 1994 arbitration hearing, where all four arbitrators were present, J.C. Penney received an award in its favor. J.C. Penney’s arbitrator, Arnold Lovitz, was present at both the hearing and the conference stages of the proceeding. However, because of a mix-up in the mailing of notices, Daniel J. Ryan, not Daniel Ryan, Jr., appeared at the hearing as arbitrator for Hanover. Moreover, Daniel Ryan Jr., Hanover’s original arbitrator, was the person who later signed the arbitration award in favor of Hanover at the post-hearing conference on April 29,1994.

On June 30,1994, Patton filed a timely petition to vacate the arbitration awards, pursuant to 42 Pa.C.S.A. § 7313. By an order dated November 9, 1994, the award in favor of Hanover was vacated in response to the misconduct suggested by the Daniel Ryan discrepancy. Conversely, the award in favor of J.C. Penney was confirmed. Patton now timely appeals to this court. On appeal, Patton raises one issue for our review:

(1) Did the trial court err when it concluded that the arbitration award in favor of J.C. Penney Insurance Company should not be vacated on the basis of misconduct in its formulation?

In determining whether the trial court exceeded its scope of authority in this arbitration matter, this court will reverse the trial court’s decision only for an abuse of discretion or error of law. Hall v. Nationwide Mut. Ins. Co., 427 Pa.Super. 449, 453-54, 629 A.2d 954, 956 (1993). When an agreement to arbitrate is unclear as to whether common law or statutory arbitration rules shall govern, then common law rules regulate its enforcement and the award unless, subsequent to the agreement, the parties agree expressly or by implication that statutory arbitration rules shall govern. Brennan v. General Acc. Fire and Life Assur. Corp., 524 Pa. 542, 548, 574 A.2d 580, 583 (1990); see also Elkins & Co. v. Suplee, 371 Pa.Super. 570, 538 A.2d 883 (1988). Because the insurance policies in the instant case provided that the arbitrations shall be conducted in accordance with the Uniform Arbitration Act (“UAA”), the statutory rules govern the instant arbitrations, awards, and appeals arising therefrom.

The UAA permits broad judicial review of its arbitration awards. Wingate Constr. Co. v. Schweizer Dipple, Inc., 419 Pa. 74, 77, 213 A.2d 275, 277 (1965). Sections 7301 through 7320 of Chapter 73 of the Judicial Code regulate statutory arbitration. The trial court utilized the standard set forth in 42 Pa.C.S.A. § 7314 to determine whether the J.C. Penney award should have been vacated. The relevant passage states:

(1) On application of a party, the court shall vacate an [arbitration] award where:
(ii) there was evident partiality by an arbitrator appointed as a neutral or corruption or misconduct in any of the arbitrators prejudicing the rights of any party;
(iii) the arbitrators exceeded their powers;
(iv) the arbitrators refused to postpone the hearing upon good cause being shown ... as to prejudice substantially the rights of a party.

42 Pa.C.S.A. § 7314(a)(l)(ii), (iii) and (iv).

Under the broader review of a statutory arbitration award, a court may also vacate an arbitration award upon a showing that “fraud, misconduct, corruption or other irregularity caused the rendition of any unjust inequitable, or unconscionable award.” Hall v. Arnica Mutual Ins. Co., 538 Pa. 337, 342, 648 A.2d 755, 757 (1994). See also Runewicz v. Keystone Ins. Co., 476 Pa. 456, 383 A.2d 189 (1978) (referring to 42 Pa.C.S.A. § 7314).

Patton first contends that the trial court erred in confirming the arbitration award in favor of J.C. Penney based on the court’s conclusion that there was no corruption or misconduct which existed on the part of the J.C. Penney arbitrator. Patton grounds her argument in the fact that the arbitrator for J.C. Penney participated in the entire arbitration process with the Hanover arbitrator. Patton contends that the misconduct concerning the Hanover arbitrator tainted the J.C. Penney award and that this award should also have been vacated. We disagree.

In the instant case, the same J.C. Penney arbitrator was present both at the arbitration hearing and at the signing of the award in favor of J.C. Penney. While the award in favor of Hanover was properly vacated due to misconduct, it does not necessarily mean that the award in favor of J.C. Penney was tainted by the Hanover misconduct. In fact, in certain circumstances, “courts have affirmed one portion of an arbitration award while setting aside the rest.” Mellon v. Travelers Ins. Co., 267 Pa.Super. 191, 198, 406 A.2d 759, 762 (1979), citing Swift Industries, Inc. v. Botany Industries, Inc., 325 F.Supp. 577, (W.D.Pa.1971) aff'd, 466 F.2d 1125 (3d Cir.1972). The Pennsylvania Superior Court has adopted the Third Circuit Court of Appeals’ rule establishing that part of an arbitration award may be affirmed as long at it is separable from and is not dependent upon the rest of the award. Mellon, supra. Patton does not claim any fraudulent, or partial conduct on the part of the J.C. Penney arbitrator in rendering the award. J.C. Penney had its own arbitrator, and neither of the Messrs. Ryan who were involved in the misconduct in the Hanover claim had any standing or participation in the J.C. Penney claim. Because both the J.C. Penny and Hanover claims and awards were separate, Hanover’s misconduct does not affect the arbitration decision of the J.C. Penny claim. Patton’s failure to present any evidence to support a reversal of the award in favor of J.C. Penney mandates that the trial court’s decision be affirmed.

Patton next contends that the J.C. Penney award should be vacated because the arbitrators’ conduct severely prejudiced her rights when they failed to postpone the hearing after the Hanover misconduct was revealed. Section 7314, requires that the misconduct alleged on the part of the arbitrators prejudices a party’s rights. 42 Pa.C.S.A § 7314. In the instant case, the only misconduct that Patton can allege is that she was denied an opportunity to address the same panel which comprised the deliberative process which led to the awards. Although this may be the case with the Hanover claim, this opportunity was not denied to Patton with regard to the J.C. Penney claim. Patton had the opportunity to address the J.C. Penney arbitrator who decided the claim and who signed the award. Patton, therefore, cannot point to any facts which support this contention of prejudice in the J.C. Penney awards. Hall, supra.

In conclusion, we find that the trial court properly denied Patton’s petition to vacate the J.C. Penney arbitration award. Patton has failed to present any evidence which would suggest misconduct, fraudulent behavior, or partiality on the part of the J.C. Penney arbitrator. The mere fact that the Hanover claim and the J.C. Penney claim were conducted simultaneously is insufficient to reverse the trial court’s decision to confirm the J.C. Penney award. We find, therefore, that the trial court did not err in this respect.

Order affirmed.

      . Patton may recover under the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. § 1713(a)(4), which provides that "a person who suffers injury arising out of the maintenance or use of a motor vehicle shall recover first party benefits against applicable insurance coverage ... [f]or a person who is not the occupant of a motor vehicle, the policy on any motor vehicle involved in the accident." Id.