author: CIRILLO, Judge:

text:
    636 A.2d 1126
    KEY AUTOMOTIVE EQUIPMENT SPECIALISTS, INC., Appellant, v. Robert M. ABERNETHY and Marie M. Abernethy and Abernethy Auto Body, Inc.
    Superior Court of Pennsylvania.
    Submitted Nov. 15, 1993.
    Filed Jan. 24, 1994.

      Edward R. Dougherty, Havertown, for appellant.
    John T. Nicholson, Kenneth Square, for appellees.
    Before CAVANAUGH, CIRILLO and MONTGOMERY, JJ.
   CIRILLO, Judge:

Key Automotive Equipment Specialists, Inc. (Key) appeals from an order entered in the Court of Common Pleas of Chester County, reconsidering and then granting Appellees’, Robert Abernethy and Marie Abernethy (the Abernethys), preliminary objections. We affirm.

On December 4,. 1990, Key entered into a contract (the Agreement) with Abernethy Autobody, Inc. (Autobody) to design and install a spray paint booth on Autobody’s premises (Subject Building). The Subject Building is owned by the Abernethys and leased to Autobody. On November 3, 1991, Key completed the contracted work and was paid $6S,000.00. This payment allegedly left an outstanding balance of $12,-925.00. On March 2, 1992, Key filed a mechanics’ lien for the unpaid balance against the Abernethys and Autobody. On July 15, 1992, Key filed a complaint on the lien, which was voluntarily amended on August 13, 1992.

On September 16, 1992, the Abernethys filed preliminary objections to Key’s mechanics’ lien claim, alleging that the lien was defective as to them individually, because Key failed to comply with the notice requirements of the Mechanics’ Lien Act (the Act). 49 Pa.S.A. § 1101 et seq. Section 1303(d) of the Act states:

Leasehold Premises: No lien shall be allowed against the estate of an owner in fee by reason of any consent given by such owner to a tenant to improve the leased premises unless it shall appear in writing signed by such owner that the erection, construction, alteration or repair was in fact for the immediate use and benefit of the owner.

49 Pa.S.A. § 1303(d) (emphasis added).

On December 17, 1992, the trial court overruled the Abernethys’ preliminary objections. The trial court held that the Abernethys were estopped from seeking the protection of the notice requirement, because the court found that the Abernethys made the $63,000.00 payment with a personal check, rather than with a corporate check. The trial court reasoned that in paying Key with their personal funds, the Abernethys ratified the Agreement and rendered the section 1303(d) written notice requirement inapplicable.

Subsequently, Key filed a discovery request seeking, inter alia, copies of Autobody’s and the Abernethys’ tax returns. In response, the Abernethys filed a motion for a protective order, which was granted following oral argument. During the oral argument, the question of the contested payment was revisited and Key, consequently, presented copies of the can-celled checks to the trial court. Upon an examination of the checks, the trial court determined that the checks came from Autobody’s corporate account and not from the Abernethys’ personal funds.

Following this revelation, on June 25, 1993, the trial court sua sponte reversed its original determination and granted the Abernethys’ preliminary objections. In so ruling, the trial court found that the Abernethys had not ratified the Agreement and that, therefore, Key failed to obtain written notice of waiver as required by section 1303(d). This appeal followed.

Key presents the following issues for our review:

1) Whether the trial court committed reversible error in sua sponte reconsidering the preliminary objections which were no longer pending before the court?
2) Whether the Abernethys were estopped from seeking the protection of the “written notice” requirement of section 1303(d) of the Mechanics’ Lien Act?

Key’s first argument is that the trial court erred in reconsidering its order to deny the Abernethys’ preliminary objections. Specifically, Key alleges that the trial court was without power to sua sponte reverse its previous order, outside the statutory 30 day time period. See 42 Pa.C.S.A. § 5505.3 *

It is well settled that a trial court has the inherent power to reconsider its own rulings. Hutchison by Hutchison v. Luddy, 417 Pa.Super. 93, 107, 611 A.2d 1280, 1288 (1992). The statute which limits the time for reconsideration of orders to 30 days is applicable only to final orders. Id. (citing Daywalt v. Montgomery Hospital, 393 Pa.Super. 118, 573 A.2d 1116 (1990)); 42 Pa.C.S.A. § 5505. When considering an interlocutory order, however, the trial court is not bound by the 30 day limitation. Id. An order is interlocutory and not final'if it does not effectively place the litigant out of court or otherwise end the lawsuit. Commonwealth v. VanBuskirk, 303 Pa.Super. 148, 149, 449 A.2d 621, 622 (1982).

Presently, we find that the trial court’s original order, denying the Abernethys’ preliminary objections, was interlocutory. It did not place a litigant out of court or end the lawsuit; it simply denied the Abernethys the protection of the Mechanics’ Lien Act. Accordingly, the trial court properly exercised its discretion in sua sponte reconsidering the order beyond the 30 day period.

Key’s second argument is that the trial court erred in granting the Abernethys’ preliminary objections. Key alleges, that despite the absence of “written notice” as required by section 1303(d), the Abernethys were nonetheless estopped from seeking the protection of the Mechanics’ Lien Act. In making this argument, Key relies primarily on Murray v. Zemon, 402 Pa. 354, 167 A.2d 253 (1960) and Chambers v. Todd Steel Pickling, Inc., 323 Pa.Super. 119, 470 A.2d 159 (1983).

In Murray, a contractor made renovations to a building pursuant to a written contract with the building’s tenant. The contractor knew who owned the building. The owners were not parties to the contract and its terms clearly disclosed that the contractor relied solely on the credit of the tenant. The contract, however, was entered into with the knowledge of the owners, who had previously agreed to help obtain the money necessary for the repairs. Significantly, the contractor never obtained a section 1303(d) written waiver from the building’s owners.

Subsequently, a dispute arose between the contractor and the tenant concerning payment for the work completed. The dispute culminated in the contractor filing a mechanics’ lien against both the tenant and the owners. The owners protested, asserting that as the contractor failed to obtain a written waiver, the Mechanics’ Lien Act insulated them from liability. The contractor, in turn, claimed that the owners were es-topped from seeking the protection of the Act. The Pennsylvania Supreme Court disagreed. The Court stated:

Nor are we prompted to sustain the validity of the claim because of appellant’s argument that the owners are now estopped to raise the question. The contractor knew who the record owners of the property were. With this knowledge, he contracted in writing with the tenant for payment. No facts were withheld nor any attempt made to mislead. No promise was ever made by the owners to pay for the cost of the improvement. Under such circumstances, estoppel does not lie.... [I]f the contractor desired to subject the estate of the owner to such a lien, it was his duty to inquire into the nature of the consent given, if any. His failure to do so is his fault alone. When consent, requisite to such a lien, is lacking, no such lien may be successfully asserted.

Murray, 402 Pa. at 360-61, 167 A.2d at 256-57. Thus, the Court determined that unless “facts were withheld” or there was “an attempt to mislead,” an owner is not estopped from seeking the protection of the Mechanics’ Lien Act.

Subsequently, in Chambers, we had the opportunity to further explore the issues set forth in Murray. In Chambers, Robert Berger, the president and sole stockholder of Todd Steel Pickling, Inc. (Todd Steel), entered into a construction contract with George Chambers to build a residential home on property leased to Berger by Todd Steel. In negotiating this agreement, Berger led Chambers to believe that he was the actual owner of the property and, therefore, did not disclose that the property was leased to him by the owner, Todd Steel. Chambers did not obtain a written waiver from Todd Steel as required under section 1303(d).

After Berger failed to make certain payments, Chambers filed a mechanics’ lien against both Berger and Todd Steel. Todd Steel filed preliminary objections, seeking the protection of the Mechanics’ Lien Act. The trial court agreed, holding that as Chambers failed to obtain a section 1303(d) written waiver from Todd Steel, Chambers could not seek to recover from Todd Steel. Chambers appealed to the Superior Court.

On appeal, Chambers asserted that because Berger had misled him and induced his reliance as to the ownership of the property, “there was no necessity for the writing called for in 49 Pa.C.S.A. § 1303(d).” Id., 323 Pa.Super. at 124-25, 470 A2d at 162. We agreed. In finding that Todd Steel was estopped from seeking the protection of the Act, we were ever mindful of a contractor’s duty to inquire into the nature of the consent given by the actual owner of the property. Murray, supra. We held, however, that such duty cannot be imposed, “where the president and sole stockholder of the corporate owner of the property leads a contractor to believe that he is the actual property owner.... ” Id., 323 Pa.Super. at 128, 470 A.2d at 163-64. Thus, we found that estoppel may lie against the trae owner of property, despite the absence of the written notice requirement of section 1303(d), where facts have been withheld and where the property owner did not act in good faith throughout the transaction. Id., 323 Pa.Super. at 129, 470 A.2d at 164.

In the case at hand, therefore, our task is to determine whether the trial court properly sustained the Abernethys’ preliminary objections; that is, whether in the course of negotiating the agreement, the Abernethys withheld facts as to the ownership of the Subject Building or otherwise did not act in good faith throughout the transaction. Our standard of review in such cases is well settled. When sustaining preliminary objections results in the denial of a claim or the dismissal of a suit in a mechanics’ lien action, the objections should only be sustained when the case is clear and doubtless. Guistra Development Co, Inc. v. Lee, 428 Pa.Super. 394, 631 A.2d 199 (1993); Castle Pre-Cast v. Strauss-Hammer, 416 Pa.Super. 53, 610 A.2d 503 (1992); Chambers, supra.

Upon a thorough review of the record, we find Key’s claim to be without merit, as it is “clear” and “doubtless” that the Abernethys acted in good faith in their dealings with Key. Throughout contract negotiations Key was fully aware that the Abernethys, and not Autobody, owned the Subject Building. Further, the Agreement expressly stated that it was between Key and Autobody and in no way included the Abernethys personally. Although the Abernethys, as sole stockholders and officers of Autobody, would indirectly benefit from the Agreement, Key presented no evidence which indicates that the Abernethys were using the Agreement solely to further their personal interests. Finally, all payments under the Agreement were made by Autobody from its corporate account, and not from the Abernethys’ personal account. Because we find that Key failed to obtain “written notice” from the Abernethys as required by section 1303(d) of the Mechanic’s Lien Act and that Key failed to make the required showing justifying estoppel, we affirm trial court’s order sustaining the Abernethys’ preliminary objections.

Order affirmed.

      . The $63,000.00 was received in three payments of $7,500.00, $10,-000.00, and $45,500.00. These payments were made on December 4, 1990, December 17, 1990, and May 9, 1991, respectively.

      . The Abernethys are the sole shareholders of Autobody and serve as its President and Secretary.

      . The trial court based its understanding that the Abernethys paid Key with a personal check, solely on representations made by Key in its complaint and in its brief in opposition to the Abernethys' preliminary objections.

      . Although in its brief to this court Key presents this issue in two parts, for the sake of brevity and uniformity of resolution, we have condensed it into one more generalized issue.

      . Section 5505 states:
      Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.

      . Evidence presented before the trial court indicated that: 1) Berger never mentioned Todd Steel during contract negotiations; 2) Berger made payments by either personal checks or by checks from other companies owned by him; 3) Berger told Chambers that the house was to be built for his use as a "gentleman’s fairm;” and 4) Berger's children slept in the house on the weekends, while construction proceeded.


source: Caselaw Access Project

author: ROWLEY, President Judge: CIRILLO, Judge,

license: Public Domain

text:
    636 A.2d 1130
    Juleann DUCJAI, Appellant, v. Dawn DENNIS and Peter Tarvin.
    Superior Court of Pennsylvania.
    Argued Sept. 8, 1993.
    Filed Jan. 27, 1994.

      Peter O’Donnell, Wilkes-Barre, for appellant.
    Michael J. Donohue, Scranton, for Dennis, appellee.
    Before ROWLEY, President Judge, and MCEWEN, CIRILLO, OLSZEWSKI, DEL SOLE, BECK, TAMILIA, KELLY and JOHNSON, JJ.
   ROWLEY, President Judge:

In this appeal, we address the question which Juleann Ducjai (hereinafter “appellant”) has presented for our review, to wit, whether the exclusivity provision contained in § 72 of the Worker’s Compensation Act (hereinafter “WCA”), 77 P.S. § 1, et seq., is without force and effect in law since enactment of § 1719(a) of the Motor Vehicle Financial Responsibility Law (hereinafter “MVFRL”), 75 Pa.C.S.A § 1701 et seq. In other words, did the legislature intend to repeal § 72 sub silencio in all motor vehicle cases? Following an exhaustive review of the record, and the law relevant to this question, we decide that the legislature did not so intend. We conclude that worker’s compensation benefits are the sole and exclusive remedy available to employees injured in a motor vehicle accident in the course and scope of their employment. Therefore, we affirm the trial court’s order granting summary judgment in favor of Dawn Dennis (hereinafter “appellee”), defendant in the trial court.

The procedural and factual background of this case were accurately and succinctly summarized by the trial court, as follows:

“The present matter was initiated by Praecipe of Summons filed by [appellant] on June 30, 1989, the resulting Writ in Summons being served on [appellee] on July 6,1989 and on [a] co-defendant [Peter Tarvin] on July 7, 1989.
‡ ;¡c ‡ ^ ‡
[Appellant] filed her complaint on January 17, 1991. In her complaint, [appellant] alleges that on July 27, 1987, she was a passenger in an automobile operated by [appellee]; that the vehicle operated by [appellee] collided with a pickup truck operated by co-defendant; that both [appellee] and co-defendant operated their respective vehicles negligently, as a result of which she sustained enumerated injuries.”

(Trial Court Opinion, 3/31/92, p. 1-2).

Further, the trial court stated in its well-reasoned opinion that:

“[t]he record before us establishes unequivocally that [appellant] was an employee of the Y.M.C.A. at Camp Kresge at the time of the accident; that [appellee] was [appellant’s] co-employee [when the accident occurred]; that, pursuant to the directions of the Director at Camp Kresge, [appellant] and [appellee] were driving to the Y.M.C.A. in Wilkes-Barre [when the accident happened]; and that [appellant] has received worker’s compensation benefits provided by the Y.M.C.A. as a result of the accident.”

Id. at p. 6-7.

After the pleadings were closed, appellee filed a motion for summary judgment with the trial court contending that she was entitled to judgment as a matter of law pursuant to 77 P.S. §§ 72 and 481(a). Neither appellant nor the co-defendant filed a brief in opposition to the motion. On March 30, 1992, the trial court granted appellee’s motion. Appellant filed a motion for reconsideration, which the trial court granted. The March 30th order was vacated and appellant was given five (5) days in which to file a brief in opposition to appellee’s summary judgment motion. On May 8,1992, after considering the briefs of both appellant and appellee, the trial court once again granted summary judgment in favor of appellee. This timely appeal followed.

The standard by which the grant of summary judgment must be reviewed is well-settled, and has been stated by this Court, as follows:

“A motion for summary judgment may properly be 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). See also Rybas v. Wapner, 311 Pa.Super. 50, 52, 457 A.2d 108, 109 (1983); Williams v. Pilgrim Life Insurance Co., 306 Pa.Super. 170, 172, 452 A.2d 269, 270 (1982). In passing upon a motion for summary judgment the [trial],court must examine the record in the light most favorable to the nonmoving party. Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 82, 468 A.2d 468, 470 (1983); Zimmerman v. Zimmerman, 322 Pa.Super. 121, 123, 469 A.2d 212, 213 (1983); Wilk v. Haus, 313 Pa.Super. 479, 480-482, 460 A.2d 288, 289-290 (1983). It is not part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. Wilk v. Haus, supra at 482, 460 A.2d at 290; Tom Morello Construction Co. v. Bridgeport Federal Savings & Loan Association, 280 Pa.Super. 329, 334, 421 A.2d 747, 750 (1980). Any doubt must be resolved against the moving party. Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 38 (1982); First Pennsylvania Bank, N.A. v. Triester, 251 Pa.Super. 372, 378, 380 A.2d 826, 829 (1977). Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140-141, 476 A.2d 928, 930-931 (1984). Accord Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 203-204, 412 A.2d 466, 468-469 (1979); Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 231, 464 A.2d 1313, 1316 (1983); Rybas v. Wapner, 311 Pa.Super. 50, 51, 457 A.2d 108, 109-110 (1983). However, parties seeking to avoid entry of summary judgment against them may not rest upon the averments contained in their pleadings. On the contrary, they are required to show, by depositions, answers to interrogatories, admissions or affidavits, that there is a genuine issue for trial. Pa.R.C.P. 1035(d). The court, in ruling upon a motion for summary judgment, must ignore controverted facts contained in the pleadings. Phaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1973); Younginger v. Heckler, 269 Pa.Super. 445, 410 A.2d 340 (1979). The court must restrict its review to the material authorized by Rule 1035 to be filed in support of and in opposition to the motion for summary judgment and only those allegations in the pleadings that are uncontroverted. Phaff v. Gerner, supra.”

Washington Federal Savings Loan Assoc. v. Stein, 357 Pa.Super. 286, 288-289, 515 A.2d 980, 981 (1986) (emphasis in original).

Further, it has been stated by this Court that:

“[o]nce a motion for summary judgment is made and is properly supported ... the nonmoving party may not simply rest upon the mere allegations or denials in his or her pleadings. Pa.R.C.P. 1035(d). In such a case, Rule 1035(d) requires that ‘by affidavits or as otherwise provided in the rule, [the nonmovant] must set forth specific facts showing that there is a genuine issue for trial.’ The purpose of Rule 1035(d) ‘is to assure that the motion for summary judgment may ‘pierce the pleading’ and to require the opposing party to disclose the facts of his claim or defense.’ Roland v. Kravco, Inc., 355 Pa.Super. 493, 501, 513 A.2d 1029, 1034 (1986) (quoting Goodrich Amran [sic] 2nd § 1035(d):5 at 460 (1976) (emphasis added by Roland court), [alloc.] denied, 517 Pa. 599, 535 A.2d 1058 (1987). Thus, once the motion for summary judgment has been properly supported, the burden is upon the nonmovant to disclose evidence that is the basis for his or her argument resisting summary judgment. Id. at 501, 513 A.2d at 1034.

Fiffick v. G.A.F. Corp., 412 Pa.Super. 261, 264-265, 603 A.2d 208, 210 (1992), quoting, Samarin v. G.A.F. Corp., 391 Pa.Super. 340, 346-347, 571 A.2d 398, 402 (1989).

In the instant case, appellee contends that the trial court’s order granting her summary judgment should be affirmed because she was entitled to judgment as a matter of law pursuant to § 72 and § 481(a) of the WCA. 77 P.S. § 72 provides that:

“If disability or death is compensable under this act, a person shall not be liable to anyone at common law or otherwise on account of such disability or death for any act or omission occurring while such person was in the same employ as the person disabled or lolled, except for intentional wrong.”

Further, 77 P.S. § 481(a) states that “[t]he liability of an employer under this act shall be exclusive and in place of any and all other liability to such employees____” (emphasis added).

Appellant, on the other hand, strenuously argues that § 1719(a) of the MVFRL is a special provision which, pursuant to the rules of statutory construction delineated in 1 Pa.C.S.A. § 1901, et seq., acts as an exception to the more general provision contained in § 481(a) of the WCA. Further, appellant claims that 77 P.S. § 481(a) and 75 Pa.C.S.A. § 1719(a) are “irreconcilable,” such that, pursuant to the principles of statutory construction, the most recent provision, contained in the MVFRL, must prevail. Section 1719 of the MVFRL provides, in pertinent part, as follows:

(a) General Rule. — Except for worker’s compensation, a policy of insurance issued or delivered pursuant to this subchapter shall be primary. Any program, group contract or other arrangement for payment of benefits such as described in section 1711 (relating to required benefits) 1712 (1) and (2) (relating to availability of benefits) or 1715 (relating to availability of adequate limits) shall be construed to contain a provision that all benefits provided therein shall be in excess of and not in duplication of any valid and collectible first party benefits provided in section 1711, 1712, or 1715 or worker’s compensation.”

75 Pa.C.S.A. § 1719(a). (emphasis added).

Our research has revealed no cases which address the precise issue of whether or not, since passage of the MVFRL, a person may recover both worker’s compensation benefits from her employer, and damages at common law from her co-employee, as a result of a motor vehicle accident which occurred while the co-employee was driving her own vehicle in the scope and course of their employer’s business. We do note, however, that prior to passage of the MVFRL, both this Court and the Pennsylvania Supreme Court addressed analogous factual scenarios and held that one co-worker is immune from common law tort liability for injuries sustained by another co-worker in a motor vehicle accident which occurred while both individuals were acting within the course and scope of employment. Simply put, both courts decided that the worker’s compensation benefits received by an employee were intended by the legislature to be the sole and exclusive avenue of recovery for a work-related injury.

In Apple v. Reichert, 443 Pa. 289, 278 A.2d 482 (1971), the Pennsylvania Supreme Court upheld this Court’s decision refusing to strike a non-suit entered in favor of plaintiffs coworker. As noted by appellee, the facts of Apple are strikingly similar to those in the instant case. In Apple, as in this case, two co-workers were driving in an automobile privately owned by one of them while en route from one place of employment to another, with the express authorization of their supervisor, when they were involved in a collision with another car. In the instant case, as in Apple, the plaintiff-appellant sued both her co-employee and the driver of the other vehicle for personal injuries which she sustained in the accident. And, finally, in both cases, plaintiff-appellant made a claim for, and subsequently received, benefits under the Worker’s Compensation Act as a result of her injuries sustained in the work-related accident.

In Apple, the trial court concluded that both appellant and appellee were acting within the scope and course of their employment, that the WCA was applicable and that 77 P.S. § 72 provided immunity from liability for appellee such that a compulsory non-suit was entered in favor of appellee. Id. at 292, 28 A.2d at 483. In the present action, the trial court also concluded that appellant and appellee were “in the same employ” such that 77 P.S. § 72 immunized appellee from liability for appellant’s injuries resulting from the work-related accident.

In Apple, as in the instant case, appellant argued on appeal that her co-worker should not be immunized from' liability both because the parties were not acting within the scope of their employment at the time of the accident and because the purpose of the WCA was to prevent recovery against the employer’s liability carrier, not to protect employees from liability to their fellow employees. This Court and the Supreme Court affirmed the trial court’s conclusions in Apple, and, for the same reasons, we do likewise in the present appeal.

In Apple, our high Court stated unequivocally that “[t]he language of the amendment ... clearly provides that a co-employe is immune from liability for his negligent act resulting in injury to his fellow employe.” Id., 443 Pa. at 292, 278 A.2d at 483. The Court further opined:

“Nor do we see merit in appellant’s argument that the grant of immunity should be denied because this would provide a windfall for appellee’s liability insurer. While we can speculate that the legislature was more interested in fellow employee immunity for on-premises accidents due to negligence where the negligent employe is not likely to have liability insurance coverage, and we are aware that the employe’s automobile carrier here benefits rather than the employer’s compensation carrier, nevertheless we are not free to rephrase dear language of a statute in aid of a plaintiff even in circumstances like those in this case----
We read the amending Act as clearly phrased to protect all co-employes in all situations where negligent conduct of one employe may cause injury to a fellow employe, provided only that the injury in question is one that is compensable under the Act.”

Id. at 294, 278 A.2d at 485. (emphasis added).

Ten years after the Supreme Court’s decision in Apple, this Court considered the case of Sylvester v. Peruso, 286 Pa.Super. 225, 428 A.2d 653 (1981). In Sylvester, the plaintiff and defendant were co-employees who were involved in a car accident while driving to work in a company automobile. Although there was no contract requiring that their employer provide transportation for its employees, defendant had been directed to drive plaintiff to work in a company car by his employer, Stylecraft Fashions, Inc. At the time of the accident, defendant “had been driving the plaintiff to work for a period of eight (8) to ten (10) years.” Id. at 227, 428 A.2d at 654.

As a result of the incident, plaintiff sustained physical injuries and received workmen’s compensation benefits. She then brought a civil action against the driver of the car and her employer. Both defendants filed motions for summary judgment, which the trial court granted after concluding that the plaintiff was precluded from maintaining a civil action against either defendant because the sole remedy for her injuries was under the WCA.

In affirming the trial court’s order granting summary judgment, this Court concluded that:

“[b]ecause plaintiff received Workmen’s Compensation benefits from her employer [to compensate her for the injuries she sustained in the accident] we hold that the Workmen’s Compensation Act constitutes her sole remedy and that she cannot maintain civil actions against either her employer or her co-employee for injuries she received as a result of the May 20, 1977 accident.”

Id. at 228, 428 A.2d at 655. (emphasis added). This Court reasoned further that:

“... plaintiff filed for and received Workmen’s Compensation benefits thereby asserting her status as an employee engaged in the course of her employment at the time of the accident. To permit her now to disclaim such status so that she is able to pursue other benefits would be grossly unfair and would defeat the legislative purposes of the Workmen’s Compensation Act ...”

Id. at 228, 428 A.2d at 655.

Given the holdings of both Apple and Sylvester, the question now becomes whether, by passing the MVFRL, the legislature implicitly altered the state of the law regarding a co-employee’s tort liability for injuries sustained in a car accident occurring in the course and scope of employment. We conclude that it did not.

Although appellant relies upon § 1719(a) of the MVFRL and a recent Supreme Court decision, Kohler v. McCrory Stores, 532 Pa. 130, 615 A.2d 27 (1992), neither authority states, or even suggests, that the MVFRL overruled the exclusivity provision of the WCA, by permitting a plaintiff to maintain a common law tort claim against her co-employee merely because the injury occurred in a car rather than on the employer’s premises. In fact, two recent cases, decided by our Supreme Court, have taken the position opposite to that advanced by appellant, albeit in different contexts than that involved in the present appeal.

Most importantly, in Hackenberg v. SEPTA, 526 Pa. 358, 586 A.2d 879 (1991), the Supreme Court specifically held that the MVFRL did not generally supersede the exclusivity provision of the WCA. There, an employee sued his employer, the Southeastern Pennsylvania Transportation Authority (hereinafter “SEPTA”), to recover damages he sustained in a car accident with an uninsured motorist while he was acting within the course and scope of employment. The trial court granted summary judgment in favor of the employer based on the exclusivity provision of the WCA and this Court affirmed.

In upholding this Court’s decision, the Supreme Court concluded that employees injured within the scope of their employment could not receive uninsured and underinsured motorist benefits against self-insured employers, because to do so would violate the exclusivity provision of the WCA. In arriving at this conclusion, our high Court opined as follows:

“We disagree that section 1936 of the Statutory Construction Act requires the more recently enacted MVFRL to supersede the terms of the Workmen’s Compensation Act. It is improper to resort to a comparison of dates of enactment unless the statutes in question cannot be construed so as to give effect to both. Section 1933 of the Statutory Construction Act provides:
Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions is irreconcilable, the special provisions shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail.
1 Pa.C.S. § 1933. Applying the analysis of section 1933 of the Statutory Construction Act, the requirement of section 1787 of the MVFRL that self-insured entities provide uninsured motorist coverage is, on the facts of this case, in irreconcilable conflict with the requirement of section 303(a) of the Workmen’s Compensation Act that worker’s compensation benefits are the sole and exclusive liability of an employer for an employee’s work-related injury. Section 303(a) of the Workmen’s Compensation Act, however, is clearly a special provision since it concerns a narrow class of accidents (those involving employees who are making claims against their employers), and it prevails over the more general terms of the MVFRL unless it is the manifest intention of the General Assembly that the general provision prevail. The legislature has not manifested such an intention. We conclude, therefore, that section 303(a) of the Workmen’s Compensation Law is an exception to the general rule of Section 1787 of the MVFRL, and that under the terms of the MVFRL a self-insured employer may not be required to pay both uninsured motorist benefits and worker’s compensation benefits to an employee who has received a work-related injury.”

Id., 526 Pa. at 369-370, 586 A.2d at 884-885. (emphasis added).

Secondly, in Alston v. St. Paul Insurance Companies, 531 Pa. 261, 612 A.2d 421 (1992), the Supreme Court considered the issue of whether “an employee who sustains an injury covered by the Pennsylvania Workmen’s Compensation Act ... may assert a separate tort action for injuries allegedly arising out of malicious and fraudulent conduct and abuse of the legal process to terminate workmen’s compensation benefits by agents of the employer’s insurance carrier.” Id. at 262, 612 A.2d at 421. There, it was held that the workmen’s compensation system, pursuant to the exclusivity provision of the WCA, encompasses all disputes over coverage and payments of benefits, including actions taken by the employer’s insurance carrier or its agents.

Finally, we observe that just recently, in amending the WCA, the legislature explicitly repealed and modified a number of provisions contained in the MVFRL. Sections 1735 and 1737 of the MVFRL were repealed absolutely while §§ 1720 and 1722 were repealed insofar as they related to worker’s compensation benefits. As a result of the new laws, a worker’s compensation carrier may now seek subrogation for any benefits paid in connection with actions arising out of the maintenance or use of a motor vehicle. Correlatively, an employee injured in the course and scope of employment may not pursue recovery of uninsured or underinsured motorist benefits in addition to the benefits he receives from worker’s compensation.

We believe that these changes in the law were intended by the legislature to proclaim the supremacy of the WCA’s exclusivity provision and to reaffirm the principle that an employee may not seek double recovery for a work-related injury. The legislature has tried time and again to make it clear that worker’s compensation benefits are to be the exclusive remedy for employment-related injuries, save for those intentionally inflicted. Given the legislative treatment of the entire concept of worker’s compensation, we cannot find any reasonable basis for concluding that the legislature intended to repeal § 72 of the WCA by inference. Had the legislature intended to expand the remedies available to an employee injured in a motor vehicle accident, we believe that it would have expressed that intent clearly (by including it in its recent amendments) rather than sub silencio.

Because the legislature did not express such an intent, and because the Supreme Court has strictly construed the exclusivity provision of the WCA generally, we must conclude that the holdings of both Apple and Sylvester still control cases such as the instant one. Section 72 of the WCA operates to immunize appellee from common law tort liability in this case such that appellant simply is not entitled to bring suit against her co-employee for injuries sustained in a car accident where both she and her co-employee were acting within the scope and course of their employment. As our Supreme Court observed in Kline, “[t]he Workmen’s Compensation Act explicitly states that it is the exclusive avenue of compensation----” Kline, 503 Pa. at 256-257, 469 A.2d at 161. (emphasis added).

Order granting summary judgment is affirmed.

CIRILLO, J., files a concurring statement.

CIRILLO, Judge,

concurring.

Section 72 of the Worker’s Compensation Act (the Act), 77 P.S. § 72, abrogates common law liability of one employee to another for negligence, provided that the injury is one compensable under the Act. See Apple v. Reichert, 443 Pa. 289, 278 A.2d 482 (1971); Jadosh v. Goeringer, 442 Pa. 451, 275 A.2d 58 (1971); Babich v. Pavich, 270 Pa.Super. 140, 411 A.2d 218 (1980). There have been few cases in which the courts of this Commonwealth have carved out an exception to the exclusivity provision of the Act, 77 P.S. 481(a), or co-employee immunity. Cf. Apple, supra; Sylvester v. Peruso, 286 Pa.Super. 225, 428 A.2d 653 (1981).

There are two recent cases from this court, however, which I believe warrant mention relative to the issue presented today: Ferry v. Liberty Mutual Insurance Co., 392 Pa.Super. 571, 573 A.2d 610 (1990) and Chatham v. Aetna Life & Casualty Co., 391 Pa.Super. 53, 570 A.2d 509 (1990). Additionally, I believe that the effect,, if any, of our Supreme Court’s decision in Selected Risks Ins. Co. v. Thompson, 520 Pa. 130, 552 A.2d 1382 (1989) on the Apple decision merits consideration.

Although Ferry and Chatham pertained to uninsured motorist benefits, and the instant case involves first party benefits, in both Ferry and Chatham this court construed the MVFRL as a source of recovery separate from worker’s compensation benefits. The Chatham court, guided by the Supreme Court’s decision in Thompson, stated:

[W]e take our direction from Thompson, the most recent pronouncement from the high court revealing that the MVFRL can be interpreted to sanction, in graphic terms, the Legislature’s condonation of a claimant/employee’s right to secure both work[er]’s compensation and uninsured motorist benefits resulting from work related injuries.

Chatham, 391 Pa.Super. at 59-60, 570 A.2d at 512. In Ferry, our court, relying upon Thompson and Chatham, reversed entry of summary judgment and agreed with the appellant’s argument that the MVFRL provides a separate source of recovery for employees injured by uninsured motorists that is independent of the exclusive remedy for work-related accidents under the Worker’s Compensation Act. Ferry, 392 Pa.Super. at 572-574, 573 A2d at 611.

Prior to the legislative amendment to the MVFRL, Sub-chapter C, entitled “Uninsured and Underinsured Motorist Coverage,” provided an exception to the exclusivity clause of the Worker’s Compensation Act:

§ 1735. Coverages unaffected by workers’ compensation benefits
The coverages required by this subchapter shall not be made subject to an exclusion or reduction in amount because of any workers’ compensation benefits payable as a result of the same injury.

75 Pa.C.S. § 1735.

Subchapter B, entitled “Motor Vehicle Liability Insurance First Party Benefits,” does not include a similar exception; it does, however, include provisions which make reference to workers’ compensation benefits as a separate recovery or set-off against other benefits. Section 1719 provides:

§ 1719. Coordination of benefits
(a) General rule. — Except for workers’ compensation, a policy of insurance issued or delivered pursuant to this subchapter shall be primary. Any program, group contract, or other arrangement for payment of benefits ... shall be construed to contain a provision that all benefits provided therein shall be in excess of and not in duplication of any valid and collectible first party benefits provided in section 1711, 1712, or 1715 or workers’ compensation.

75 Pa.C.S. § 1719(a). Section 1720 provides:

§ 1720. Subrogation
In actions arising out of the maintenance or use of a motor vehicle, there shall be no right of subrogation or reimbursement from a claimant’s tort recovery with respect to workers’ compensation benefits, benefits available under section 1711 (relating to required benefits), 1712 (relating to availability of benefits) or 1715 (relating to availability of adequate limits) or benefits paid or payable by a program, group contract or other arrangement whether primary or excess under section 1719 (relating to coordination of benefits).

75 Pa.C.S. § 1720.

The Legislature repealed absolutely section 1735 of the MVFRL, and it repealed section 1720 of MVFRL insofar as it relates to worker’s compensation benefits. Though both repeals were effective after this appeal was taken, the legislature’s actions do lend hindsight in this case and credence to the result. I submit, however, that prior to this recent legislative amendment, the law did not say with certainty that appellee Dennis was entitled to judgment as a matter of law. Pa.R.C.P. 1035(b); Rybas v. Wapner, 311 Pa.Super. 50, 52, 457 A.2d 108, 109 (1983).

      . We observe that initially, this case was heard by a three-judge panel of this Court. There, appellant’s only argument was that summary judgment was inappropriate in this case due to unresolved factual issues. However, following the original panel decision, appellee filed a petition for reargument, and a brief in support thereof. Appellant opposed the petition. The petition was granted and the matter was certified to be heard before this Court en banc. Appellant and appellee both filed supplemental briefs on reargument. It was at this juncture that appellant first raised the instant statutory construction issue. Although appellant technically waived this argument, in the interest of judicial economy, we will address it because appellant’s summary judgment argument would have no validity if the premise upon which it was founded, to wit, that the legislature had changed the law sub silencio, was unsound. In her initial appearance before this Court appellant attempted to reach step two of the analysis without reaching step one. Because we conclude, in the first step of the analysis, that the legislature did not intend to repeal § 72 of the WCA insofar as it relates to motor vehicle cases, appellant’s original argument (that there are unresolved issues of material fact) is irrelevant such that we need not address it.

      . It should be noted that in our review, we examined the Legislative History of the MVFRL, in an effort to determine the intent behind enactment of § 1719(a) as it relates to worker’s compensation benefits. However, our efforts in this regard were to no avail.

      . The MVFRL, specifically § 1719(a), took effect on October 1, 1984. The WCA was originally enacted on June 2, 1915 and was thereafter amended several times. Recently, the WCA was again amended by the legislature, to be made effective as follows: the repeal of §§ 1735 and 1737 was immediate and the modification of §§ 1720 and 1722 took effect on August 31, 1993.
      Parenthetically, we observe that the MVFRL's predecessor, the Pennsylvania No-Fault Motor Vehicle Insurance Act, was approved on July 19, 1974, and was made effective as of July 19, 1975.

      . It should be noted that in Kline v. Arden H. Verner Co., 503 Pa. 251, 469 A.2d 158 (1983), the Pennsylvania Supreme Court considered a challenge to the constitutionality of the exclusivity provision of the WCA here at issue and found it to be constitutional. In so concluding, the Cotut flatly stated that “[c]onsistent with a plain reading of the [Worker’s Compensation] Act, its intent and purpose, we have held that workmen's compensation is the exclusive remedy for job related injuries.” Id. at 254, 469 A.2d at 159. (emphasis added). Further, the Court reasoned:
      “[t]o change, alter or abolish a remedy lies within the wisdom and power of the legislature and in some instances, the courts. Access to a tribunal is not denied when the tribunal has no jurisdiction to entertain the claim or the remedy. Time and circumstances require new remedies to adjust to new and unforeseen losses and conditions. To do so, facets of the society often require new immunities or larger responsibility, as the legislature may determine. The workmen’s compensation law has deprived some [employees] of rights in exchange for surer benefits, [and has] immunized some, to make possible resources to benefit many, who w[]ere heretofore without possible or practical remedies.”

        Id. at 255, 469 A.2d at 160.

      . In Kohler, supra:

      “the question before th[e] [Supreme] Court [wa]s whether an employee can set forth a valid cause of action against his employer under the personal animus exception to the Pennsylvania Workmen’s Compensation Act (‘Act’) for non-work-related injuries inflicted by a coworker solely for personal reasons, where the injured employee has previously accepted benefits pursuant to the Act. [The Court] h[e]ld that only a final adjudication of work-relatedness can estop an employee from asserting that his injuries are not work-related for purposes of maintaining an action against his employer under the personal animus exception to the Act.”

        Id., 532 Pa. at 134, 615 A.2d at 29. We do not find any guidance in Kohler regarding the question now before us.

      . The Hackenberg Court refers to § 303(a) of the WCA in its opinion. § 303(a) has been codified at 77 Pa.S. § 481(a).

      . Act No. 1993-44, S.B. No. 1, § 25(a) and (b), Approved July 2, 1993.

      . Effective July 2, 1993.

      . Effective August 31, 1993.


author: BROSKY, Judge.

text:
    636 A.2d 1138
    Burton ROSENFIELD, Appellant v. PENNSYLVANIA AUTOMOBILE INSURANCE PLAN.
    Superior Court of Pennsylvania.
    Argued Nov. 16, 1993.
    Filed Jan. 27, 1994.

      Malcolm H. Waldron, Jr., Philadelphia, for appellant.
    Mary Ellen Krober, Philadelphia, for appellee.
    Before CIRILLO, FORD ELLIOTT and BROSKY, JJ.
   BROSKY, Judge.

Burton Rosenfíeld appeals from the June 15,1993 trial court order granting defendant-appellee Pennsylvania Automobile Insurance Plan’s (“The Plan”) motion for summary judgment, “finding that the litigation that is the subject of this action for malicious use of process did not end with a termination favorable to ... plaintiff [-appellant].” That same day, the trial court entered judgment in favor of The Plan.

In March, 1985 appellant was President of the Temple Insurance Agency, a Pennsylvania corporation, and Temple Premium Finance Agency, a New Jersey Corporation. Temple Insurance Agency acted as a broker, for high-risk insureds, subject to the rules of appellee Pennsylvania Automobile Insurance Plan. The Plan was created, pursuant to 75 Pa.C.S. § 1741 et seq. and § 1751 et seq., to provide an “Assigned Risk Plan for the equitable apportionment among those insurers of applicants for motor vehicle liability insurance who are entitled to, but are unable to, procure insurance through ordinary means.” 75 Pa.C.S. § 1741. Pursuant to The Plan, “all motor vehicle liability insurers shall subscribe thereto and shall participate in the plan.” Id. On March 7, 1985 The Plan filed an equity action against appellant, Temple Insurance Agency and Temple Premium Finance Company, alleging that appellant and his two corporations were violating rules of The Plan. The Plan asked for injunctive relief, asking that “a judgment be entered in favor of the Plan, granting a preliminary and permanent injunction restraining, enjoining, staying and prohibiting” appellant and his corporations from violating enumerated rules of The Plan. The Plan’s Complaint In Equity, 3/7/85, at par. 24. In September, 1985 appellant and his corporations filed an answer and averred that they were not violating any rules of The Plan. The case never proceeded to trial. By March, 1986 Temple Insurance and Temple Premium Finance had ceased accepting any new insurance applications or financing applications (i.e., they were no longer in the automobile insurance business or premium financing business), and, hence, no longer subject to the rules of The Plan. The Plan believed that its lawsuit had become moot, and, therefore, on November 5, 1987 it filed a praecipe for voluntary discontinuance, requesting that the trial court “Please mark this action voluntarily discontinued, without prejudice, upon payment of your costs only.” The trial court granted the relief requested.

In October, 1988 appellant filed a complaint against The Plan, alleging that it engaged in a wrongful use of civil proceedings (42 Pa.C.S. § 8351) when it filed the presently discontinued lawsuit against appellant. The Plan filed preliminary objections to appellant’s complaint, alleging that the voluntary discontinuance of its lawsuit against appellant did “not constitute a termination in favor of’ appellant; hence, appellant’s claim should “be dismissed for failure to state a cause of action for malicious prosecution.” The Plan’s Preliminary Objections to Appellant’s Complaint, 12/28/88, at par. 5. On July 20, 1989 the trial court denied the Plan’s preliminary objections; the trial court did not issue an opinion.

The Plan then deposed appellant and conducted other discovery; on March 8, 1993 it filed a motion for summary judgment, alleging that its lawsuit against appellant did not terminate in appellant’s favor, and, hence, there were no genuine issues of material fact regarding appellant’s lawsuit. On June 15,1993 the trial court granted The Plan’s motion for summary judgment, finding that The Plan’s lawsuit against appellant did not terminate in appellant’s favor. The instant appeal followed.

Appellant’s statement of questions involved is as follows:

1. In plaintiff [-appellant’s] suit for wrongful use of civil proceedings, did the court err in ruling that it is not a disputed issue of fact as to whether or not the underlying civil action terminated in favor of plaintiff herein?
2. In plaintiffs suit for wrongful use of civil proceedings, did the court err in finding that it was not a disputed issue of fact as to whether or not the underlying civil action terminated in favor or plaintiff herein, when a judge of coordinate jurisdiction, sitting in the same court and in the same case, ruled that it was an issue of fact?

Appellant’s Brief at 4. We affirm the order of the trial court.

Our Court stated in Burman v. Golay and Co., Inc., 420 Pa.Super. 209, 616 A.2d 657 (1992),

A grant of summary judgment is proper where the pleadings, depositions, answers to interrogatories, admissions of record and affidavits on file support the court’s conclusion that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035. (entire record before lower court must be examined and all doubts as to the existence of an issue of material fact are to be resolved against a grant of summary judgment). The trial court must accept as true all well-pleaded facts relevant to the issues in the non-moving party’s pleadings, and give to him the benefit of all reasonable inferences to be drawn therefrom. 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. [Citations omitted.]

Id. at 212, 616 A.2d at 658-59.

Our Court stated in Rosen v. American Bank of Rolla, 426 Pa.Super. 376, 627 A.2d 190 (1993),

Wrongful use of civil proceedings is a tort which arises when a party institutes a lawsuit with a malicious motive and lacking probable cause. In this Commonwealth, the tort has been codified at 42 Pa.C.S. § 8351 as follows:
§ 8351. Wrongful Use of Civil Proceedings.
(a) Elements of action. — A person who takes part in the procurement, initiation or continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings:
(1) He acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and,
(2) The proceedings have terminated in favor of the person ■ against whom they are brought.
(b) Arrest or seizure of person or property not required.— The arrest or seizure of the person or property of the plaintiff shall not be a necessary element for an action brought pursuant to this subchapter.

Id. at 378, 627 A.2d at 191-92. Hence, in order to recover under the statute a plaintiff must prove (1) that the underlying proceedings terminated favorably to the plaintiff; (2) that the defendant caused those proceedings to be instituted -without probable cause; and, (3) malice. Id.

Appellant first claims that the trial court erred in granting The Plan’s motion for summary judgment since there existed a factual issue as to whether The Plan’s voluntary discontinuance constituted termination in favor of appellant. However, we note that appellant did not contest The Plan’s averment that it voluntarily terminated the lawsuit since subsequent to the filing of the lawsuit appellant effectively ceased participation in the automobile insurance business and was no longer subject to the rules of The Plan, and, therefore, the lawsuit was moot (The Plan’s lawsuit asked for injunctive relief in the form of restraining appellant from violating the rules of The Plan); once appellant was no longer subject to the rules of The Plan, there was no need for the injunctive relief. Accordingly, there was no issue for the trial court to address at that point, and, an appellate court will not decide moot or abstract questions. Commonwealth v. Dorler, 403 Pa.Super. 150, 588 A.2d 525 (1991).

Pennsylvania law regarding the wrongful use of civil proceedings is in conformity with the Restatement of Torts, Second, § 674. Shaffer v. Stewart, 326 Pa.Super. 135, 473 A.2d 1017 (1984). Comment h. to § 674 states that functions of the court and jury are similar to those found in § 673 (relating to malicious prosecution in a criminal case), which states “in an action for malicious prosecution the court determines whether ... the proceedings were terminated in favor of the plaintiff.” Restatement of Torts, Second, § 673(l)(b). Hence, in the instant case the trial court properly determined whether The Plan’s voluntary discontinuance resulted in a termination favorable to appellant. Comment j. of § 674 also states, “Whether withdrawal or an abandonment constitutes a final termination of the case in favor of the person against whom the proceedings are brought ... depends on the circumstances under which the proceedings are withdrawn.” Id. Comment j. refers to §§ 660 and 661, which state that withdrawals of proceedings as a result of compromise or agreement, or, the impossibility of bringing an accused to trial, do not constitute a termination favorable to the party against whom proceedings have been brought. Id. If this is the case then surely a voluntary discontinuance obtained by a plaintiff, occasioned by the mootness of the issues raised by that plaintiff, does not constitute a termination favorable to the party who subsequently initiates an action for wrongful use of civil proceedings. Shaffer v. Stewart, supra; Restatement of Torts, Second, §§ 660, 661, 673(l)(b), 674 (Comments h. and j.). Accordingly, the instant issue of whether the voluntary discontinuance constituted a termination favorable to appellant was to be decided by the trial court. Since issues raised in the Plan’s lawsuit had become moot the trial court properly granted the voluntary discontinuance of the lawsuit. Since appellant admitted that The Plan’s lawsuit had become moot, and mootness, like the impossibility of bringing an accused to trial, which occasions a voluntary withdrawal, can not constitute a termination in favor of the party against whom a lawsuit is brought, the trial court properly determined that there were no factual issues to be determined regarding appellant’s action for wrongful use of civil proceedings (appellant could not meet the first prong of the requirements by showing that the voluntary discontinuance resulted in a termination favorable to him). Therefore, the trial court properly granted The Plan’s motion for summary judgment and appellant’s first issue is without merit.

Appellant’s second issue is that the instant trial court order (granting The Plan’s motion for summary judgment) determining that the voluntary discontinuance did not result in a termination favorable to appellant is contrary to the trial court’s order of July 20, 1989 (denying The Plan’s preliminary objections to appellant’s lawsuit for wrongful use of civil proceedings; said preliminary objections were based upon the fact that the voluntary withdrawal did not result in a termination favorable to appellant; in the July 20, 1989 order the trial court did not state the reasons that it failed to grant the preliminary objections).

We first note that the motion for summary judgment was filed four years after the denial of the preliminary objections. In the intervening time period appellant had been deposed and further discovery had been conducted.

Ordinarily, a trial judge should not place himself or herself in a position to overrule a decision by another judge of the same court in the same case. Solcar Equip. v. Pa. Manufacturers’ Assn., 414 Pa.Super. 110, 606 A.2d 522 (1992); Salerno v. Philadelphia Newspapers, 377 Pa.Super. 83, 546 A.2d 1168 (1988). However, this rule is not intended to preclude granting summary judgment following the denial of preliminary objections. Id. This is especially true if the preliminary objections were denied without an opinion. Id. When reviewing preliminary objections the trial court looks to the pleadings, but, in considering a motion for summary judgment the trial court weighs the pleadings, depositions, answers to interrogatories, admissions and affidavits. Id. There is no reason to fail to grant a motion for summary judgment if the record warrants such action. Id. In the instant case the trial judge who considered the motion for summary judgment was provided with a more current and wider array of documents upon which to base her decision that was the trial judge who considered The Plan’s preliminary objections. Furthermore, the instant record supported the granting of the motion for summary judgment (See our analysis of appellant’s issue number one, supra). Under these circumstances, the trial court properly granted The Plan’s motion for summary judgment. Accordingly, appellant’s second issue is without merit.

Order affirmed.

        . Appellant mistakenly asserts that his appeal is from the judgment entered. The appeal is from the trial court order granting The Plan’s motion for summary judgment and we will treat it as such. Pa.R.A.P. 905(a).

      . One Common Pleas Court judge denied the preliminary objections and another granted the motion for summary judgment.


author: ROWLEY, President Judge:

text:
    636 A.2d 1143
    COMMONWEALTH of Pennsylvania, v. Joseph A. PIOLE, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 30, 1993.
    Filed Jan. 24, 1994.

      Thomas R. Ceraso, Greensburg, for appellant.
    Kevin F. McCarthy, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before ROWLEY, President Judge, and JOHNSON and HUDOCK, JJ.
   ROWLEY, President Judge:

Joseph A. Piole, (hereinafter “appellant”) has appealed from the judgment of sentence imposed following his bench trial conviction of one count of Aggravated Assault and one count of Simple Assault. On appeal, he claims that he was prejudiced by the Commonwealth’s failure to provide him with the statement of an eye-witness during pre-trial discovery such that he is now entitled to a new trial. Having reviewed this claim in light of the relevant law, we conclude that it is without merit. We affirm.

As a result of a bar fight, appellant was arrested and charged with a single count of Aggravated Assault, and two counts of Simple Assault. We approve and adopt the trial court’s accurate summation of the factual background of this case as adduced from the trial testimony:

“On the evening of June 14, 1992, the victim, Lyle Lawver, along with his friends, Rege O’Rourke and Paul Christiana, went to Bellisario’s Lounge, located on Duncan Avenue, [in] McCandless Township, [Allegheny County]. They arrived [at the bar] about 11 o’clock in the evening. Subsequently, Lawver observed his friend, O’Rourke, having a discussion with [appellant]. Lawver observed O’Rourke’s mannerisms, which caused him to laugh. [Appellant,] apparently taking objection to Lawver’s [amusement,] came around the horseshoe-shaped bar and confronted Lawver, asking if he was some sort of tough guy. Lawver responded [by] telling [appellant] [that] he obviously had a problem with somebody but it had nothing to do with [Lawver]. Lawver then turned his back on [appellant,] feeling threatened. He next remembered a beer bottle being smashed in his face.
Anthony Bellisario, the bar manager, testified that [appellant] was one of four men who were involved in an altercation earlier that evening. Subsequently, the four men began began ‘banging other people around.’ Bellisario decided [not to serve the four men any more alcoholic beverages]. However, they asked if they could have one more drink, and Bellisario [acquiesced]. He testified: ‘And, after I gave them the other round of drinks, it looked like things [had] gotten worse [than they were] before.’ Bellisario [also testified] that 10 or 15 minutes later, he observed [appellant] walk behind [Bellisario] to the other side of the bar, where he took a position next to the victim. As Bellisario watched both sides of the bar, he heard a bottle shatter and then observed [appellant] holding the victim with one hand and punching him in the face with the other.
Bartender Cathy Huncheck stated [that] she heard noise on the other side of the bar and then heard glass breaking. When she turned around, she observed [appellant’s] arms moving as though he were punching, but [she] had no idea who was on the floor. When [onlookers] picked [the victim] up, she observed that his face was [very] bloody.
Kitchen chef, John Sciulli, testified that he heard broken glass and a lot of noise. He ran over to where the incident occurred and observed [appellant] on top of the victim swinging his arms up and down.
Sandra Lubbert, a real estate office manager, was at Bellisario’s [Lounge] that evening because she dated a man who worked there. She observed the victim, apparently leaning against the bar, with several men surrounding him. She then observed [appellant] hit [the victim] with [a] beer bottle, knocking him up against the wall ... behind him. [Appellant] continued his assault [upon the victim] by punching [him] several times in the face as he slid down the wall onto the floor. [Ms. Lubber] observed that the [beer] bottle broke upon impact with Lawver’s face and that [appellant] struck [Lawver] at least eight to ten times.
Subsequently, [appellant] admitted to McCandless Township Police Officer Gary W. Anderson that he [had] struck Lawver with a bottle, [but contended] that it was in retaliation [for] being ‘sucker-punched.’ At trial, however, [appellant] absolutely denied [ever] striking Lawver with a bottle. Th[e] [trial] court found [appellant] and his defense witnesses to be absolutely uncredible.”

(Trial Court Opinion, 3/5/93, pp. 2-4).

The trial court found appellant guilty of Aggravated Assault and one count of Simple Assault as a result of the altercation. However, appellant was found not guilty as to the second count of Simple Assault. Appellant filed timely post-verdict motions, which were then denied by the trial court. Appellant thereafter filed the instant appeal, contending that he is entitled to a new trial because of the Commonwealth’s failure to provide him with the statement of eyewitness Sandra Lubbert in accordance with the provisions of Rule 305(B)(2) of the Pennsylvania Rules of Criminal Procedure1 *. That rule provides, in pertinent part, as follows:

(2) Discretionary with the Court: In all court cases, ..., if the defendant files a motion for pretrial discovery, the court may order the Commonwealth to allow the defendant’s attorney to inspect and copy or photograph any of the following requested items, upon a showing that they are material to the preparation of the defense, and that the request is reasonable:
(a) the names and addresses of eyewitnesses;
(b) all written or recorded statements and substantially verbatim oral statements of eyewitnesses the Commonwealth intends to call at trial; ....

Pa.R.Crim.P. 305(B).

Appellant argues that the Commonwealth’s failure to provide him with the statement of Sandra Lubbert prior to trial prejudiced him in two distinct ways. First, appellant claims that because he was not aware of her statement prior to trial he could not adequately prepare for cross-examination of that witness. In his brief, appellant asserts that there is “no way of knowing whether or not her prior statement may have permitted defense counsel to impeach her credibility.”

We find appellant’s claim in this regard to be without merit. In so concluding, we approve and adopt the trial court’s analysis and disposition of this issue, as stated in its well-reasoned opinion:

“It has been held that the prosecution does not violate the discovery rules in instances where it fails to provide the defense with evidence that it does not possess or [of] which it is unaware [during pre-trial discovery, even if the evidence is in police custody]. Commonwealth v. Bonacurso, 500 Pa. 247, 455 A.2d 1175 (1983), [cert. denied, 462 U.S. 1120, 103 S.Ct. 3090, 77 L.Ed.2d 1350 (1983) ]. Such is the case here.”

(Trial Court Opinion, 3/5/93, p. 8).

Moreover, as the Commonwealth notes in its brief, the record is very unclear as to whether Ms. Lubbert’s statement was even written down by the police officer who questioned her, much less in a form which would be discoverable. The courts of this Commonwealth have consistently held that in order for a document sought by defense counsel to be included under Rule 305(B)(2) as a witness’ statement, it must be either a substantially verbatim account of the witness’ declarations or be approved by the witness; notes made by a police officer when questioning a witness have been held to be insufficient. See e.g. Commonwealth v. Bailey, 322 Pa.Super. 249, 469 A.2d 604 (1983) (where this Court held that the written report of police officer which was only a summary of the words of the victim and not a verbatim statement could not be used to impeach the victim on cross-examination).

In the instant case, Ms. Lubbert testified that at the time she was questioned by the police, she was not sure as to whether the police wrote down the information she had given them. She also testified that she was not asked to sign, or otherwise verify, the information which she gave to the officer, such that any notes which were written down by the officers were not discoverable. The trial court properly admitted the testimony of Sandra Lubbert and appellant suffered no prejudice as a result.

Further, as noted by the trial court:

“... the testimony of Sandra Lubbert was cumulative. Th[e] trial court [cjould have reached the same adjudication even if she had not testified. If error did occur, and th[is] Court does not believe [that] it did, such error was harmless.”

(Trial Court Opinion, 3/5/93, p. 8-9).

Appellant also contends that had he been aware that an eyewitness would testify against him, he would not have waived his right to a jury trial. We conclude, as did the trial court, that this claim is meritless. In the words of our Supreme Court:

“... there are no differences in a defendant’s rights or the legal principles involved between a jury case and a non-jury case. The same rules of evidence apply and the same burdens of proof remain.
H* sH ❖ # ❖
Here, appellant voluntarily, after a full and extensive colloquy, chose a non-jury method of trial, (citation omitted). The fairness of that method is not determined by the type of evidence offered or the number of witnesses introduced. Absent error of law, bias, or prejudice, there is no inherent unfairness in a bench trial as contrasted to a trial by jury. We cannot accept that, once chosen, one form of the right to an open and public trial is less productive of fairness than the other or that one is less capable of rendering a fair verdict upon the same evidence.”

Bonacurso, supra 500 Pa. at 255, 455 A.2d at 1179-1180. Appellant has not explained his implied claim that his bench trial was less fair than a jury trial would have been in light of Ms. Lubbert’s testimony nor can we find any such explanation. Thus, his claim in this regard must fail.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 2702.

      . 18 Pa.C.S.A. § 2701.

      . It should be noted that the Commonwealth did list the name of eyewitness Sandra Lubbert as one of the witnesses it intended to call at trial and further, Ms. Lubbert's name was noted on the police report, of which appellant was furnished a copy. Thus, if appellant had so desired, he could have conducted his own independent investigation as to the nature of Ms. Lubbert’s connection to the case. Clearly, the Commonwealth did not attempt to hide this witness from appellant.

      . In this regard, see also: Commonwealth v. Montgomery, 533 Pa. 491, 496-97, 626 A.2d 109, 112 (1993); Commonwealth v. Battiato, 422 Pa.Super. 285, 297, 619 A.2d 359, 365 (1993); Commonwealth v. Rakes, 398 Pa.Super. 440, 444, 581 A.2d 212, 214 (1990), alloc. denied, 527 Pa. 599, 589 A.2d 690 (1991).


author: ROWLEY, President Judge.

text:
    636 A.2d 1146
    David A. NOBERS, Robert R. Campbell, Jr., Gasper P. Porto, and Gary T. Weekley, individually and on Behalf of Themselves and all Others Similarly Situated, Appellants, v. CRUCIBLE, INC., a Corporation, and Colt Industries, Inc., a Corporation.
    Superior Court of Pennsylvania.
    Argued Sept. 21, 1993.
    Filed Jan. 19, 1994.

      Gregory Gleason, Pittsburgh, for appellants.
    William H. Powderly, III, Pittsburgh, for appellees.
    Before ROWLEY, President Judge, and TAMILIA and JOHNSON, JJ.
   ROWLEY, President Judge.

Are the claims stated by plaintiffs/appellants David A. Nobers et al., former employees of appellee Crucible, Inc. (“Crucible”), at its Midland, Pennsylvania, plant, in their action for breach of an employment contract against Crucible and its parent company, appellee Colt Industries, Inc. (“Colt”), so related to an employee benefit plan as to be pre-empted by the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq.? Concluding that they were so related, and that the courts of this Commonwealth therefore lacked subject matter jurisdiction over appellants’ action, the trial court, in an order entered February 16, 1993, granted judgment on the pleadings in favor of appellees. This timely appeal followed. For the reasons set forth below, we conclude that the trial court’s resolution of this, appellants’ sole issue, was correct. Accordingly, we affirm the order granting appellees’ motion for judgment on the pleadings.

At the heart of appellants’ action is the claim that when they were promoted from unionized positions to non-union managerial or supervisory positions at the Midland plant, they were promised, orally or impliedly, that if laid off they would have the right to return to their collective bargaining unit or to be treated as a member of the bargaining unit on layoff status. During the course of Crucible’s closing of the Midland plant, all of the named appellants were laid off or discharged, and none was permitted to return to the bargaining unit or to maintain laid-off status in the unit. Appellants contend that this alleged breach of an oral or implied agreement deprived them of greater unemployment, pension, and insurance benefits than they are entitled to receive as salaried, non-union employees.

The procedural history of this case, which is both lengthy and complicated, is summarized in the trial court’s opinion of February 16, 1993, and we will mention only so much of that history as is essential to an understanding of this appeal. Appellants first attempted to bring an action in federal court, with jurisdiction premised on ERISA, the federal Labor Management Relations Act, and the federal Declaratory Judgment Act. When that action (“Nobers /”) was eventually dismissed, appellants filed the present action (“Nobers IF) in the Court of Common Pleas of Beaver County, stating common law breach of contract claims and requesting class certification. Appellees’ attempt to have the case removed to federal court proved unavailing, as did the action for injunctive relief which appellees filed in federal court to have the present action barred on grounds of res judicata.

At the same time as the filing of their ultimately unsuccessful federal action, appellees filed preliminary objections in the nature of a demurrer in the Court of Common Pleas of Beaver County, contending that appellants’ action was barred by the doctrine of res judicata. They followed this with amended preliminary objections in which they asserted, as an additional basis for dismissal of the complaint, that the parties had stipulated that appellants’ action against Colt was for Colt’s alleged tortious interference with Crucible’s contractual relationship with appellants. This common law claim of tortious interference, they argued, was solely cognizable under Section 510 of ERISA, and appellants’ action was therefore preempted by Section 514 of ERISA and subject to dismissal for that reason.

Section 514(a) of ERISA states in pertinent part that the statute’s provisions “shall supersede any and all State laws insofar as they may now or hereafter relate to any [ERISAcovered] employee benefit plan....” 29 U.S.C. § 1144(a) (emphasis added). The trial court concluded that “[b]ecause [appellants’] claim for damages goes directly to the establishment of a benefit plan, [appellants’] claim does ‘relate to’ an employee benefit plan, therefore, it is pre-empted by ERISA and we are ... without jurisdiction to entertain the matters raised” (Trial Court Opinion, 8/7/87, at 7). Accordingly, in an order entered August 7, 1987, the trial court granted appellees’ preliminary objections as to jurisdiction and dismissed the action.

Appellants appealed to this Court. In a decision filed July 25, 1988, this Court reversed. Nobers v. Crucible, Inc., 376 Pa.Super. 156, 545 A.2d 367 (1988), alloc. denied, 522 Pa. 578, 559 A.2d 39 (1989). Relying on its earlier opinion in Shaw v. Westinghouse Electric Corporation, 276 Pa.Super. 220, 419 A.2d 175 (1980), this Court concluded that the issue was whether appellees were liable for breach of an employment contract; that the factfinder’s resolution of this issue would affect only the rights and liabilities of the plaintiffs and the corporate defendants, not those of the plaintiffs and the employee benefits plans; and finally that “[t]he association between the suit and the plans being tangential at best, we fail to see how ERISA is any more than incidentally involved, a factor which counsels against us concluding that the plaintiffs’ claim is pre-empted by ERISA.” Id. 376 Pa.Super. at 165, 545 A.2d at 371. For those reasons, this Court reversed the trial court’s order granting appellees’ preliminary objections and dismissing appellants’ action. After our Supreme Court denied allocatur, appellees attempted for the second time to remove the case to federal district court, but were again unsuccessful.

On November 20, 1992, appellees moved for judgment on the pleadings, asserting once again that appellants’ claims were pre-empted by ERISA and that subject matter jurisdiction over them therefore lay exclusively with the federal courts. Because the lack of subject matter jurisdiction may be raised at any time, Pa.R.C.P. 1032(2); Encelewski v. Associated-East Mortgage Company, 262 Pa.Super. 205, 210, 396 A.2d 717, 719 (1978), appellees were not barred from raising the issue a second time. In support of their argument, they cited two decisions, Ingersoll-Rand Company v. McClendon, 498 U.S. 133, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990) (“Ingersoll-Rand”), and 1975 Salaried Retirement Plan for Eligible Employees of Crucible, Inc. v. Nobers, 968 F.2d 401 (3d Cir.1992), cert. denied, — US. -, 113 S.Ct. 1066, 122 L.Ed.2d 370 (1993) (“Retirement Plan"), that had not yet been handed down when this Court reached its earlier decision in the present case. The trial court, for reasons that are carefully explained in its opinion of February 16, 1993, agreed with appellees that these intervening decisions were controlling and, accordingly, granted appellees’ motion for judgment on the pleadings. It is this decision that appellants have asked us to review.

In an appeal from an order entering judgment on the pleadings, our scope of review is plenary, and we are required to determine whether “the [trial court’s] action ... was based on a clear error of law or whether there were facts disclosed by the pleadings which should properly go to the jury.” Kosor v. Harleysville Mutual Insurance Company, 407 Pa.Super. 68, 72, 595 A.2d 128, 129-30 (1991). Appellants contend that because there are legally significant distinctions between Ingersoll-Rand and Retirement Plan, on the one hand, and the present case, on the other hand, the former decisions do not control the outcome of the latter. They maintain that this Court’s earlier opinion in this action remains the law of the case and must be reaffirmed.

To evaluate appellants’ claims, we turn to the cited cases. The issue before the United States Supreme Court in Ingersoll-Rand was whether ERISA “pre-empts a state common law claim that an employee was unlawfully discharged to prevent his attainment of benefits under a plan covered by ERISA.” Id. 498 U.S. at 135, 111 S.Ct. at 481. Noting that the pre-emption clause of Section 514(a) is conspicuously broad, the Court stated that “[a] law ‘relates to’ an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan,” id. at 139, 111 S.Ct. at 483 [quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 2900, 77 L.Ed.2d 490 (1983)]. Applying this definition, the Court concluded that:

the cause of action which the Texas Supreme Court recognized here — a claim that the employer ■wrongfully terminated plaintiff primarily because of the employer’s desire to avoid contributing to or paying benefits under the employee’s pension fund — “relate[s] to” an ERISA-covered plan within the meaning of § 514(a), and is therefore pre-empted.

Id.

Appellants assert that Ingersoll-liand is inapposite because the liability of the defendants in that case depended upon the existence of a benefits plan, while in the present case “liability turns upon the existence of a contract of employment and whether or not the Appellees breached that contract” (Brief for Appellants at 10). Regardless of whether a benefits plan existed, appellants argue, they would have had a cause of action under state law. To support their contention that the pre-emptive effect of ERISA does not extend to a case such as theirs, appellants cite Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987), for the proposition that “only state laws that relate to benefit plans are preempted” (Brief for Appellants at 11).

Our interpretation of Ingersoll-Rand is guided by that of the Third Circuit Court of Appeals in Retirement Plan. The plaintiffs/appellants in that case were five benefit plans for Crucible employees. They went to federal court seeking a declaratory judgment concerning their obligations to defendants/appellees, who are also the named plaintiffs in the present action (i.e., Nobers II), as well as an injunction barring defendants/appellees from proceeding with the present action. Relief of that type is barred by the federal Anti-Injunction Act unless the request falls under one of three exceptions, one of which is “where necessary in aid of [the federal court’s] jurisdiction,” 28 U.S.C. § 2283. In considering whether the requested injunction fell within that exception,' the Third Circuit Court of Appeals concluded that:

the claim in Nobers II depends on the existence of an ERISA plan. If an ERISA plan did not exist, the appellees would never have brought Nobers II. Furthermore, the trial court’s inquiry in Nobers II would be directed to ERISA plans, in that the calculation of damages would involve construction of ERISA plans.... The appellees place great emphasis on the fact that Nobers II is a suit against an employer, not ERISA plans or their administrators. But that defense is unavailing after IngersolV-Rand, which concluded that ERISA preempted a suit against an employer.
In sum, Nobers II “relates to” an ERISA plan and is accordingly preempted by ERISA section 514(a), 29 U.S.C. § 1144(a). Moreover, ... even if Nobers II had been properly brought under ERISA, federal jurisdiction over the appellees’ claim would have been exclusive.

Id. at 406-7 (footnotes omitted). The Court of Appeals also noted that Fort Halifax Packing, relied upon by appellants in the case before us, was easily distinguishable because the Maine severance pay statute at issue in that case did not “relate to” employee benefit plans, whereas in the case before the Court “a plan most certainly exists, and the appellees measure their damages in Nobers II by reference to that plan.” Id. at 406 n. 2. Nevertheless, because plaintiffs/appellants had failed to show “that an injunction of Nobers II is necessary in aid of the district court’s jurisdiction over the very case before it: the plans’ declaratory judgment action,” id. at 408, the Court of Appeals concluded that an injunction did not lie under § 2283. The Court of Appeals summarized its decision as follows:

In sum, the Pennsylvania court’s assumption of jurisdiction over Nobers II is in violation of ERISA’s supersedure provisions, but an injunction does not lie simply because of that fact. Instead, we must assume that the state courts will faithfully follow federal law. On that score, we note that the preemption issue here was not definitively resolved until Ingersoll-Rand, which was decided after the Pennsylvania Superior Court had ruled that Nobers II was not preempted. Perhaps the Pennsylvania trial and intermediate appellate courts will now reconsider their holding. If not, then the proper avenue of redress is appeal through the state court system, and ultimately, if necessary, to the United States Supreme Court.

Id. at 408 (emphasis in original; citation omitted).

The Third Circuit’s opinion in Retirement Plan, if we choose to apply the conclusions reached therein, disposes of appellants’ challenge to the trial court’s ruling in the case before us. Appellants contend that the Third Circuit was not presented with, and did not need to decide, the pre-emption issue and that the Third Circuit’s “analysis of this [i.e., the present] case, at some distance, cannot be dispositive of the issues in this matter” (Brief for Appellant at 9).

We disagree. As the Third Circuit explained:

The plans contend that the subject matter of Nobers II is, under ERISA section 502(e)(1), 29 U.S.C. § 1182(e)(1), subject to exclusive federal jurisdiction, and therefore the requested injunction falls under the second exception to the Anti-Injunction Act because it is necessary in aid of the district court’s (exclusive) jurisdiction over claims of this sort. We must first determine whether federal courts have exclusive jurisdiction over the claims in Nobers II; if so, we must then determine whether, as the plans claim, that is sufficient to invoke the “necessary in aid of its jurisdiction” exception.

Id. at 405-6 (emphasis added). The Third Circuit’s explanation indicates that the pre-emption question was an integral part of its analysis of the issue before it.

Moreover, as the trial court points out, where the Third Circuit has spoken on a federal question, the ultimate answer to which has not yet been provided by the United States Supreme Court, it is appropriate that we follow the Third Circuit’s decision. To do otherwise would suggest that a disappointed litigant

need only ... “walk across the street” to gain a different result. Such an unfortunate situation would cause disrespect for the law.... Finality of judgments would become illusory, disposition of litigation prolonged for years, the business of the courts unnecessarily clogged, and justice intolerably delayed and frequently denied.

Commonwealth v. Negri, 419 Pa. 117, 122, 213 A.2d 670, 672 (1965).

Finally, we agree with the Third Circuit that the present action “relates to” an ERISA plan and in fact would not have been brought but for the existence of such a plan. In their complaint appellants allege the following damages: 1) lost supplemental unemployment benefits as calculated in the Supplemental Unemployment Benefit Plan attached as Exhibit A, which sets forth plan participants’ rights and protections under ERISA; 2) lost immediate pension benefits and lost pension benefits in the event of a plant closing, both of which are described in Exhibit B, a pension agreement that is “a defined benefit plan under [ERISA]” (Exhibit B at 2); and 3) lost insurance benefits as described in Exhibit C, a program of insurance benefits that is “a welfare benefit plan as defined by ERISA” (Exhibit C at 1). From the stipulation of facts that is signed by counsel for both parties and attached to appellees, amendment to their preliminary objections, we learn that

Counsel [for plaintiffs/appellants] ... agreed that the action against Colt, due to Colt’s status as sole shareholder of [Crucible], was for tortious interference by causing [Crucible] to discharge Plaintiffs rather than enabling them to obtain various pension and welfare plan benefits by reason of being returned to the bargaining unit.

Stipulation of Facts at 7 (emphasis added). In Jacques v. Akzo International Salt, Inc., 422 Pa.Super. 419, 619 A.2d 748 (1993), this Court, citing Ingersoll-Rand, held that a claim of wrongful discharge in order to deprive the employee of pension benefits was pre-empted by ERISA. Such a claim is similar to that stated by appellants in the case before us.

We conclude, therefore, that there was neither an error of law by the trial court nor facts disclosed by the pleadings which should be allowed to go to a jury. Accordingly, we affirm the order granting judgment on the pleadings to appellees.

Order affirmed.

      . Crucible is now Colt Industries Operating Corporation.

        . The Court of Appeals reached the same result with regard to the remaining two exceptions to the Anti-Injunction Act.

      . Although Commonwealth v. Negri is, as we read it, a plurality opinion, the proposition cited here was supported by a majority of the Court.


author: TAMILIA, Judge:

text:
    636 A.2d 1151
    John C. FERRARA, Appellant, v. Jeffrey HOOVER and U.S. Cargo & Courier.
    Superior Court of Pennsylvania.
    Argued Nov. 10, 1993.
    Filed Jan. 19, 1994.

      Joseph A. Grappone, Asst. Public Defender, Altoona, for appellant.
    Anthony J. Williott, Pittsburgh, for appellees.
    Before TAMILIA, HUDOCK and CERCONE, JJ.
   TAMILIA, Judge:

This appeal is taken from the Order of May 13, 1993 granting appellee’s motion for judgment on the pleadings and dismissing appellant’s action with prejudice. We affirm.

The parties were involved in an automobile accident on April 9, 1990 in Altoona, Blair County, which allegedly resulted in personal injuries to plaintiff/appellant. Appellant filed a praecipe for writ of summons on January 14, 1992, and a writ was issued that day. That writ, however, was never served on appellees. Thereafter, by Order dated June 15, 1992, the Honorable Norman D. Callan of the Court of Common Pleas of Blair County notified counsel for appellant that the court’s review of the docket indicated 120 days had elapsed since writ of summons was filed and a complaint had not been filed. Pursuant to Rule 1901 of the Pennsylvania Rules of Judicial Administration, the court indicated the matter would be dismissed if appellant did not file a complaint by July 15, 1992. Appellant filed a praecipe to reissue the writ of summons on June 25, 1992, and on July 15,1992, appellant filed a complaint in this matter. On August 4, 1992, appellee, Jeffrey Hoover, was served with the writ of summons and the complaint. On October 28,1992, counsel accepted service of the complaint on behalf of appellee, U.S. Cargo & Courier. Following appellees’ answer and new matter, and appellant’s reply to new matter, appellees filed a motion for judgment on the pleadings. The trial court granted appellees’ motion for judgment on the pleadings on the basis that appellants’ lack of timely and proper service of the writ resulted in the action being time barred.

On appeal, appellant presents several arguments, the sum of which contends that the trial court erred in granting appellee’s motion for judgment on the pleadings.

The starting point for our review is the now well-established case of Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976). In Lamp, the Supreme Court sought to eliminate the abuse and unfairness in what had become a relatively common practice whereby attorneys filed a praecipe with the prothonotary to toll the statute of limitations and then kept an action alive for an indefinite period without proper notice to a defendant and then having the writ reissued in a timely fashion without attempting to effectuate service. The Court’s purpose was “to avoid the situation in which a plaintiff can bring an action, but, by not making a good-faith effort to notify a defendant, retain exclusive control over it for a period in excess of that permitted by the statute of limitations.” Id. at 889, 366 A.2d at 889. The Lam/p rule developed that, “[t]he mere filing of a praecipe for a writ of summons, without additional affirmative action to effect service of the writ, does not constitute a good faith effort to notify a defendant that he is being sued, and therefore is not sufficient to toll the statute of limitations and preserve a cause of action.” Feher by Feher v. Altman, 357 Pa.Super. 50, 53, 515 A.2d 317, 318 (1986), alloc. den., 515 Pa. 622, 531 A.2d 430 (1987). In Lamp, the Court held that a cause of action will remain effective only if the plaintiff “refrains from a course of conduct that serves to stall in its tracks the legal machinery that he has just set in motion.” Id. at 478, 366 A.2d at 889. Following Lamp and its progeny, our courts have held that a plaintiffs “failure to make a good faith effort to notify the defendant will serve to nullify both the commencement of the action and the tolling of [the] statute of limitations.” Collins v. Greene County Memorial, 419 Pa.Super. 519, 525, 615 A.2d 760, 762 (1992).

Appellant argues his actions in this case did not amount to bad faith. “However, it is not necessary the plaintiff’s conduct be such that it constitutes some bad faith act or overt attempt to delay before the rule of Lamp will apply. Simple neglect and mistake to fulfill the responsibility to see that requirements for service are carried out may be sufficient to bring the rule in Lamp to bear.” Rosenberg v. Nicholson, 408 Pa.Super. 502, 509-510, 597 A.2d 145, 148 (1991), alloc. den., 530 Pa. 633, 606 A.2d 903 (1992) (citations omitted). See also Farinacci v. Beaver County Industrial Development Authority, 510 Pa. 589, 511 A.2d 757 (1986) (mere inadvertence by counsel enough to implicate Lamp).

Appellant contends that Lamp is inapplicable to this case, as appellant complied with the local custom of Blair County when he filed the praecipe for writ of summons and paid the service fee, assuming the prothonotary would, or did, forward the writ to the sheriff for service. Appellant argues that because either the prothonotary or sheriff is responsible for the defective service, the Lamp prohibition does not attach. We disagree.

As the trial court found, appellant’s inaction from January 14, 1992, when the writ of summons was issued, until June 25, 1992, when appellant discovered the writ was never served, is fatal to appellant’s case. The two-year statute of limitations ran on April 9, 1992, rendering moot appellant’s further action in June, 1992. See Slip Op., Callan, J., 5/20/93. “Thus, although appellants’ counsel did not actively attempt to thwart service of the writ, he also did not take any affirmative action to see that the writ was served and to put the defendant on notice that an action had been filed against him.” Feher, supra, at 56, 515 A.2d at 320. We find appellant’s actions in this case neglectful and unreasonable, and clearly within the prohibition of Lamp and its progeny, despite that his actions did not constitute bad faith.

Appellant additionally argues appellees were not prejudiced and none of their substantial rights were affected, as appellees’ liability carrier was aware of the accident and had made a settlement offer to appellant. We find no merit in the contention communication between appellant and appellees’ insurance adjuster serves as a substitute for actual service of process. Appellees have a reasonable expectation to assure that once the statute of limitations has run they will no longer shoulder the burden of possible litigation.

For the above reasons, we find the trial court committed no error of law in entering judgment on the pleadings in favor of appellees, and dismissing appellant’s action with prejudice, and we affirm the Order of May 13, 1993.

Order affirmed.

      . Although the docket indicates oral argument was scheduled for March 22, 1993, our review of the record discloses no transcript of any hearing, and neither the trial court nor the parties makes any reference to oral argument in this matter.