author: WIEAND, Judge:

text:
    660 A.2d 1374
    Chester L. HIGHHOUSE, Appellant, v. AVERY TRANSPORTATION, Frank Avery and Lyle Avery, Appellees.
    Superior Court of Pennsylvania.
    Argued April 18, 1995.
    Filed July 11, 1995.

      Peter G. Loftus, Waverly, for appellant.
    Andrew Katsock, Wilkes-Barre, for appellees.
    Before WIEAND, BECK and HOFFMAN, JJ.
   WIEAND, Judge:

In this action for wrongful discharge from employment, the plaintiff relied upon averments that his discharge had been in violation of (1) an oral contract of employment and (2) public policy. The trial court, however, entered summary judgment in favor of the employer. Therefore, the employee appealed. After careful review, we reverse.

Between 1983 and 1992, Chester Highhouse sporadically drove buses for Avery Transportation, which was owned by Frank Avery and his son, Lyle Avery. In 1990, Highhouse accepted employment as a truck driver by Scranton Craftsmen Company. On May 14,1990, he received a telephone call from Nancy Avery, the wife of Lyle Avery, requesting that he remain with Avery and continue to drive buses. At that time, Highhouse sought to determine Avery’s policy regarding unemployment benefits because of the cyclical nature of Avery’s business. Each year during the months of May to September, Avery’s drivers were busy, but after September business gradually slowed until, between December and March, there was little or no work at all. Avery’s bus drivers were not paid a salary but were paid twenty (20%) percent of the price charged to customers for each chartered bus trip. Thus, a driver’s earnings were dependent upon his being assigned to bus trips.

After completing the busy season in 1990, Highhouse’s earnings decreased. To make ends meet, he said, he applied for and received unemployment compensation. Thereafter, appellant said, the frequency and quality of his assignments were reduced, and conversations with management implied that he would have to agree not to apply for unemployment compensation if he were to be successful at Avery. Highhouse refused to agree. The following year, Highhouse applied for unemployment compensation. On or about January 16, 1992, Lyle Avery advised Highhouse that all Avery drivers were scheduled to have a federally mandated drug test and that he could be tested at his own expense, if he wished, but that his services would not be used by Avery except in emergency situations. When Highhouse inquired about his failure to receive the bonus received by other drivers at Christmas, he was told that his unemployment check was his bonus. Thereafter, Highhouse did not take the drug test. His employer contends that he thereby terminated his employment voluntarily. Highhouse contends, however, that he understood his conversation with Lyle Avery to mean that his employment had been terminated and that the cost of the test would be wasted money. He argues that he was thereby discharged, either actually or constructively, by Avery.

The trial court entered summary judgment in favor of the defendant employer on all counts. A summary judgment is properly entered where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b).

Our review of the facts suggests that a jury could find that appellant was constructively discharged from his employment. Constructive discharge of an at-will employee may serve as a basis for tort recovery if the employer has made working conditions so intolerable that an employee has been forced to resign. Kroen v. Bedway Sec. Agency, Inc., 430 Pa.Super. 83, 93-94, 633 A.2d 628, 633 (1993). Here, there was evidence that management had denied appellant a Christmas bonus and had told him that he would be the last person assigned to a trip and that it would be only in a “dire emergency” that he would be given an assignment. The reason for this was management’s displeasure with appellant’s accepting unemployment compensation during the winter months when he had received no assignments. A jury could find that this evidence, if believed, constituted a constructive discharge and that appellant’s failure to take a mandated drug test was not a voluntary decision to terminate his employment.

It remains to be determined whether the discharge was wrongful. “Absent a statutory or contractual provision to the contrary, the law has taken for granted the power of either party to terminate an employment relationship for any or no reason.” Geary v. U.S. Steel Corp., 456 Pa. 171, 175, 319 A.2d 174, 176 (1974). “Where the employee is under no obligation to continue the employment, there is no quid pro quo for an employer’s obligation to maintain the employment for a certain length of time.” Betts v. Stroehmann Bros., 355 Pa.Super. 195, 198, 512 A.2d 1280, 1281 (1986).

Appellant argues that Nancy Avery orally offered him full-time employment on May 14, 1990, and that he accepted and relied upon this offer to his detriment by leaving a full-time job at Scranton Craftsmen. He suggests that Avery employs its drivers “forever”, noting that some of its drivers were 70 or 80 years old. Therefore, he expected to be employed by Avery into his old age.

“It is basic contract law that one cannot suppose, believe, suspect, imagine or hope that an offer has been made. An offer must be intentional, definite[ ] in its terms and communicated, otherwise the minds cannot meet.” Morosetti v. La. Land and Exploration Co., 522 Pa. 492, 494, 564 A.2d 151, 152 (1989) (footnotes omitted). Appellant himself concedes that “nothing was ever guaranteed” by Nancy Avery on behalf of defendants regarding the duration or other specifics of his alleged contract of employment. Appellant’s evidence revealed nothing more than his hopes that he too would work for Avery for many years. This was insufficient to establish a contract of employment for a specific period of time, and the trial court correctly so ruled.

Generally, there is no common law cause of action for the discharge of an at-will employee. Krajsa v. Keypunch, Inc., 424 Pa.Super. 230, 237, 622 A.2d 355, 358 (1993); Field v. Philadelphia Electric Co., 388 Pa.Super. 400, 418, 565 A.2d 1170, 1179 (1989). “Exceptions to this rule have been recognized in only the most limited of circumstances, where discharges of at-will employees would threaten clear mandates of public policy.” Clay v. Advanced Computer Applications, Inc., 522 Pa. 86, 89-90, 559 A.2d 917, 918 (1989); Hershberger v. Jersey Shore Steel Co., 394 Pa.Super. 363, 575 A.2d 944 (1990).

An employer’s liability for wrongful discharge rests on whether a “well-recognized facet of public policy is at stake,” Macken v. Lord Corp., 402 Pa.Super. 1, 4, 585 A.2d 1106, 1108 (1991), a policy which “strikes at the heart of [a] citizen’s social right, duties, and responsibilities.” Field v. Philadelphia Electric Co., supra, 388 Pa.Super. 400, 565 A.2d 1170. The public policy exception is a narrow one. Geary v. United States Steel Corp., supra, 456 Pa. 171, 319 A.2d 174; Krajsa v. Keypunch, Inc., supra at 239, 622 A.2d at 359; Field v. Philadelphia Electric Co., supra, 388 Pa.Super. 400, 565 A.2d 1170. “The basis of this limited, nonstatutory cause of action is an appreciation of the fact that the employer’s interest in running his business efficiently, profitably, and as he sees fit is not absolute; important as it is, it exists in the context of, and must sometimes yield to, other interests, including the interest of the employee in making a living and the interest of the public in seeing to it that the employer does not act abusively and a proper balance between the employer’s and the employee’s interests is preserved.” Yaindl v. Ingersoll-Rand Co. Std. Pump-Aldrich Div., 281 Pa.Super. 560, 571-572, 422 A.2d 611, 616 (1980).

In this case, appellant’s evidence, if believed, showed that the employer had required him to agree that he would not make a claim for unemployment compensation during times when work was unavailable and had made it impossible for him to continue working after a claim therefor had been made and compensation received. When appellant sought benefits to avoid indigency, Avery retaliated during the prime season by assigning the choice trips to less experienced drivers who “cooperated”; by withholding his Christmas bonus; and by giving other drivers company credit cards for use on long trips but requiring plaintiff to pay cash up front and submit expense forms for reimbursement. Evidence of conversations with management disclosed clearly the employer’s disapproval of claims for unemployment compensation during the slow season and its intent to retaliate against employees who refused to relinquish such claims.

The appellate courts in this Commonwealth have not previously considered whether an employer violates public policy by discharging an at-will employee for making a claim for unemployment compensation. However, in Monkelis v. Scientific Systems Services, 653 F.Supp. 680 (W.D.Pa.1987), a federal trial court held that an averment that an employer contrived a reason to discharge an employee to prevent the employee from collecting unemployment compensation was sufficient to state a cause of action for wrongful discharge. Moreover, the courts have consistently held that employers violate the public policy of this Commonwealth by discharging employees for exercising legal rights. Kroen v. Bedway Security Agency, Inc., supra at 430 Pa.Super. 83, 633 A.2d 628 (discharge of at-will employee for refusal to submit to polygraph test violates public policy); Hunter v. Port Authority of Allegheny Cty., 277 Pa.Super. 4, 419 A.2d 631 (1980) (constitutional right to engage in any of the common occupations of life); Perks v. Firestone Tire & Rubber Co., 611 F.2d 1363 (3rd Cir.1979) (statutory right to refuse a polygraph test). Indeed, in Macken v. Lord Corp., supra, at 402 Pa.Super. 1, 585 A.2d 1106, the Superior Court recognized a cause of action for discharge of an employee in retaliation for filing a worker’s compensation claim. See also: Rettinger v. American Can Co., 574 F.Supp. 306 (M.D.Pa.1983).

The right of an employee to receive unemployment compensation is a benefit granted by the Commonwealth. Warner Co. v. Unemp. Comp. Bd. of Review, 396 Pa. 545, 551, 153 A.2d 906, 909 (1959). “The Unemployment Compensation Law was enacted to alleviate the hardships attendant upon unemployment.” Id., 396 Pa. at 552, 153 A.2d at 910. “Economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of the Commonwealth.” Unemployment Compensation Law, Act of Dec. 5, 1936, P.L. [1937] 2897, art. I, § 3, 43 P.S. § 752. Statutory law directs that “[n]o agreement by an employe to waive, release, or commute his rights to [unemployment] compensation, or any other rights under [the Unemployment Compensation Law], shall be valid.” Id. at art. VII, § 701, 43 P.S. § 861; DeFelice v. Unemployment Compensation Bd. of Review, 168 Pa.Commw. 211, 215, 649 A.2d 485, 487 (1994). “Where a statute of the Commonwealth expresses a public policy designed to alleviate a condition of possible distress among the public or a segment thereof and explicitly proscribes waiver of the benefits of the act, no private agreement, however valid between the parties, can operate as such a waiver.” Warner Co. v. Unemp. Comp. Bd. of Review, supra, 396 Pa. at 554, 153 A.2d at 911.

We hold, therefore, that if the appellee-employer discharged appellant because he had made a claim for unemployment compensation during a period when he was not working and earning income, the discharge will constitute a violation of public policy and will support a tort claim for wrongful discharge. We also hold that in this case there is evidence which, if believed, will support such a claim for wrongful discharge. Under such circumstances, we conclude, the trial court erred when it entered summary judgment in favor of the employer.

Appellees argue that appellant’s claim should have been initiated through the administrative process provided by the Unemployment Compensation Law, 43 P.S. § 751 et seq.; and therefore, this action has been pre-empted. However, Highhouse’s tort action is not an action to collect unemployment benefits, but to remedy a wrongful discharge because he applied for unemployment benefits. Therefore, we reject appellees’ pre-emption argument and hold that appellant is not foreclosed from pursuing a common law tort action. Cf. Clay v. Advanced Computer Applications, Inc., supra, 522 Pa. at 95, 559 A.2d at 921 (intended forum for discriminatory termination actions is Pennsylvania Human Relations Commission).

Reversed and remanded for further proceedings. Jurisdiction is not retained meanwhile.

      . Appellant’s complaint contained four counts. The second and third counts attempted to state causes of action for breach of contract based either on consideration or promissory estoppel. These counts, as we have observed, failed to state legally cognizable causes of action, and they were properly dismissed by the trial court. The fourth count, which alleged an intentional infliction of emotional distress was dismissed by the trial court and has not been argued on appeal. On remand, therefore, it is only the first count, which alleges a discharge in violation of public policy, which requires further proceedings.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    660 A.2d 1378
    Richard D. GENTZLER, II and Cardiovascular Associates of Lancaster, Ltd., Appellants, v. William A. ATLEE, Jr. and Atlee & Hall.
    Superior Court of Pennsylvania.
    Argued Feb. 14, 1995.
    Filed June 28, 1995.

      William T. Hangley, Philadelphia, for appellants.
    Stephanie Resnick, Philadelphia, for appellees.
    Before WIEAND, BECK and BROSKY, JJ.
   BECK, Judge:

We decide whether a physician has stated a cause of action for wrongful use of civil proceedings against a lawyer who, on behalf of an injured client, included the physician as a defendant in an underlying medical malpractice suit based on negligence and lack of informed consent. We conclude that plaintiffs-appellants Richard D. Gentzler, II, M.D. and Cardiovascular Associates of Lancaster, Ltd. (hereinafter referred to as “Gentzler”) properly made out a claim of wrongful use of civil proceedings against defendants-appellees William A. At-lee, Jr. and his law firm Atlee & Hall (hereinafter referred to as “Atlee”). We therefore reverse the trial court which sustained Atlee’s preliminary objections in the nature of a demurrer and dismissed the complaint without leave to amend.

In reviewing this appeal from the grant of preliminary objections in the nature of a demurrer, we must accept as true every well-pleaded fact in Gentzler’s complaint and all inferences reasonably deducible therefrom to decide whether Gentzler has stated a cognizable cause of action. Kelly-Springfield Tire Co. v. D’Ambro, 408 Pa.Super. 301, 596 A.2d 867 (1991); Shaffer v. Stewart, 326 Pa.Super. 135, 473 A.2d 1017, 1020 (1984); Dietrich Ind., Inc. v. Abrams, 309 Pa.Super. 202, 455 A.2d 119 (1982). If there is any doubt as to whether a claim for relief has been stated, that doubt should be resolved in favor of overruling the demurrer. Creeger Brick & Building Supply, Inc. v. Mid-State Bank & Trust Co., 385 Pa.Super. 30, 560 A.2d 151 (1989). We must therefore review the factual averments of Gentzler’s complaint to determine whether a cause of action against Atlee for wrongful use of civil proceedings has been stated. Kelly-Springfield Tire Co. v. D’Ambro, supra, 408 Pa.Super. 301, 596 A.2d 867.

The facts as alleged in Gentzler’s complaint establish the following history. Atlee sued Gentzler on behalf of his client John Doe for negligence and lack of informed consent to a medical procedure. In that lawsuit, Atlee alleged that Gentzler, a cardiologist, caused Doe to contract HIV, the virus that causes Acquired Immune Deficiency Syndrome (AIDS).

From 1977 until 1991, Doe was a cardiology patient of Gentzler. In November 1990, Gentzler examined Doe and recommended that he enter the hospital for the performance of certain tests. These tests were performed at the Lancaster General Hospital; Gentzler did not attend or participate in the performance of these tests. Based on the results of the tests, Doe was admitted to the hospital for coronary artery bypass graft surgery and a combined left carotid endarterectomy. Gentzler did not recommend or participate in these surgical procedures. At some point during the surgery, blood products were administered to Doe which proved to be contaminated with HIV and as a result, Doe became infected with the virus.

Doe’s surgeons, Dr. Edward F. Lundy and Dr. Richard Purdy, obtained written consents to the surgical procedures. However, Doe alleged that neither the surgeons nor Gentzler advised him of the risk of receiving blood products contaminated with HIV, nor did they mention or recommend to him that he had the option of autologous or directed donation if transfusion of blood products became necessary during his treatment. Doe also asserted that the defendant doctors failed properly to screen the blood products. Doe claimed that these failures gave rise to a cause of action for negligence and lack of informed consent against all the defendants, including Gentzler.

Gentzler filed preliminary objections in the nature of a demurrer to the Doe complaint, which were sustained. The trial court, in dismissing the complaint against Gentzler, cited his rationale as follows:

Plaintiffs acknowledge that Dr. Gentzler was not the surgeon performing the operation in this case. Plaintiffs further acknowledge that Dr. Gentzler did not, in fact, obtain consent for the surgery____ The central question with respect to Dr. Gentzler is whether it was he who performed the surgery. The answer is clearly that it was not Dr. Gentzler who performed the surgery. He is, therefore, under existing Pennsylvania law, not responsible for any harm which might have arisen from a lack of informed consent to the surgical procedure ... The negligence theory ... is inconsistent with the facts stated earlier in the complaint____ Plaintiffs plead no facts which would support a duty on Dr. Gentzler under the circumstances of this case.

The case against Gentzler was dismissed, and Doe did not file an appeal after the case was completed.

After the Doe case was terminated in favor of Gentzler, Gentzler filed this action for wrongful use of civil proceedings against Atlee pursuant to 42 Pa.C.S. § 8351 et seq. (the “Act”). The Act provides the elements of the cause of action:

(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.

42 Pa.C.S. § 8351(a).

The Act requires that a plaintiff in the position of Gentzler, in order to carry his or her burden of proof, establish that:

(1) The defendant has procured, initiated or continued the civil proceedings against him.
(2) The proceedings were terminated in his favor.
(3) The defendant did not have probable cause for his action.
(4) The primary purpose for which the proceedings were brought was not that of securing the proper discovery, joinder of parties or adjudication of the claim on which the proceedings were based.
(5) The plaintiff has suffered damages as set forth in section 8353 (relating to damages).

42 Pa.C.S. § 8354; Mi-Lor, Inc. v. DiPentino, 439 Pa.Super. 636, 654 A.2d 1156, 1158 (1995) (assertion of valid defense in counterclaim was not wrongful use of civil proceedings). To withstand demurrer, the complaint must at least include the factual allegations required to carry this burden of proof. At this juncture, however, the questions of whether the facts alleged in Gentzler’s complaint can be proved or whether Gentzler actually suffered any damages are not before us. We must simply decide whether Gentzler’s allegations make out a cause of action under the applicable law. Shaffer v. Stewart, supra, 326 Pa.Super. 135, 473 A.2d 1017.

The first two requirements of the wrongful use statute are easily satisfied in this case. It is clear that Atlee initiated (and continued) civil proceedings against Gentzler. It is equally clear that the underlying action, the Doe lawsuit, was terminated in Gentzler’s favor when preliminary objections in the nature of a demurrer were sustained. 42 Pa.C.S. § 8354(1), (2). Further, the fifth requirement of appellants’ burden is met because the Gentzler complaint properly alleges damages as allowed by the pertinent statute. 42 Pa.C.S. § 8354(5).

Next, Gentzler’s action must include allegations that the Doe lawsuit was instituted in a grossly negligent manner, or without probable cause, and for an improper purpose. 42 Pa.C.S. §§ 8351(a), 8354(3), (4). Evidently, the Doe lawsuit against Gentzler was brought under two theories: lack of informed consent and negligence. The informed consent action was brought against Gentzler, who is not a surgeon, on the theory that Gentzler breached a duty to Doe to inform him of the risks of the use of blood products during, surgery. Atlee's second theory in the Doe action was an independent claim of negligence, that Gentzler improperly “ordered” and “administered” tainted blood products to Doe. Atlee argues on appeal that he had probable cause to maintain the Doe lawsuit against Gentzler under these theories, and that the instant wrongful use of civil proceedings action was properly dismissed.

In order for Gentzler to state a cause of action for wrongful use he must, inter alia, allege that Atlee brought the Doe suit without probable cause. The Act defines probable cause as follows:

A person who takes part in the procurement, initiation or continuation of civil proceedings against another has probable cause for doing so if he reasonably believes in the existence of the facts upon which the claim is based, and either:
(1) Reasonably believes that under those facts the claim may be valid under the existing or developing law;
(2) Believes to this effect in reliance upon the advice of counsel, sought in good faith and given after full disclosure of all relevant facts within his knowledge and information; or
(3) Believes as an attorney of record, in good faith that his procurement, initiation or continuation of a civil cause is not intended to merely harass or maliciously injure the opposite party.

42 Pa.C.S. § 8352 (emphasis added). A party has probable cause to bring an action when he “reasonably believes” in the facts on which it is based and in the viability of the legal theory under which it is brought. 42 Pa.C.S. § 8352(1).

The existence of probable cause is a matter of law for the court to decide and is a proper objection for a defendant, in this case Atlee, to raise on preliminary objections. “[W]hat constitutes probable cause and whether it exists under an admitted or clearly established set of facts are questions of law for the court to determine.” Dietrich Ind., Inc. v. Abrams, supra (citing Morphy v. Shipley, 351 Pa. 425, 431, 41 A.2d 671, 674 (1945)).

We first address the informed consent allegation in the Doe complaint. If Atlee had a reasonable belief in the facts on which the claim was based and in the validity of the claim under existing or developing law, then Gentzler’s cause of action for wrongful use cannot succeed. On the other hand, if Atlee lacked reasonable belief in the facts alleged or the validity of the claim under existing or developing law,' and made the claim for an improper purpose, then Gentzler’s cause of action for wrongful use may proceed. We conclude that Gentzler has asserted sufficient facts in his complaint for the judge to determine that Gentzler stated a cause of action for wrongful use of civil proceedings.

Our supreme court has consistently held that a physician performing a surgical procedure must obtain informed consent from the patient. Without such consent, a “touching” is an unauthorized, technical battery, and an actionable tort. Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966); Smith v. Yohe, 412 Pa. 94, 194 A.2d 167 (1963). In Pennsylvania, only surgeons who actually perform the operative procedures have the duty to warn patients of risks and thus obtain informed consent. Boyer v. Smith, 345 Pa.Super. 66, 497 A.2d 646 (1985). Gentzler was not one of Doe’s surgeons, and therefore cannot be held liable for a “battery.”

Atlee concedes the present limitation in the law of informed consent. However, he argues that he had probable cause to assert Gentzler’s liability for failure to inform Doe of the risks because he was attempting to develop the law. He was urging that informed consent be analyzed under a negligence, not a battery, theory, thereby making doctors other than the ones performing the surgery, or doing the “touching,” subject to liability. Atlee insists that the Doe action against Gentzler was based on a good faith attempt to change the existing law regarding informed consent. Therefore Atlee argues he acted with probable cause. 42 Pa.C.S. § 8352(1).

While we recognize that members of the superior court have questioned the wisdom of continuing to analyze informed consent in the context of battery, the Pennsylvania Supreme Court has consistently upheld the battery analysis.

In fact, there is no question that the battery theory continues to control this area of the law. See Hoffman v. Brandywine Hosp., 443 Pa.Super. 245, 661 A.2d 397 (1995) (patient who contracted AIDS through blood transfusion did not have informed consent cause of action; transfusion occurred several hours after surgery, not during surgery, and therefore surgeon did not have duty to obtain informed consent). The supreme court has refused to hear appeals from superior court decisions that expressly question the battery analysis, and instead has confirmed the viability of this law of informed consent in its recent decision in Moure v. Raeuchle, 529 Pa. 394, 404 n. 8, 604 A.2d 1003, 1008 n. 8 (1992) (“tort founded upon lack of informed consent is an intentional tort, i.e., a battery, and issue of negligence is not germane”). See also Dible v. Vagley, 417 Pa.Super. 302, 612 A.2d 493 (1992), app. den., 535 Pa. 619, 629 A.2d 1380 (1993) (since radiation treatments did not involve surgery, physician not liable for failing to obtain informed consent prior to administering them); Foflygen v. Zemel, 420 Pa.Super. 18, 615 A.2d 1345 (1992), alloc. den., 535 Pa. 619, 629 A.2d 1380 (1993) (informed consent cause of action must be analyzed under battery theory); Friter v. Iolab Corp., 414 Pa.Super. 622, 607 A.2d 1111 (1992) (same); Keech v. Mead Johnson & Co., 398 Pa.Super. 329, 580 A.2d 1374 (1990) (same).

Although Atlee argues that he was invited by the suggestions in decisions critical of the battery analysis to make an effort to establish a negligence analysis for the law of informed consent, and even if we were to concede for the sake of argument that the law in this area is ripe for change, the facts of the Doe case do not provide support for such a claim. Assuming arguendo that Atlee was attempting to hold Gentzler liable for failure to inform Doe of certain risks on negligence principles, the Doe complaint did not make out a proper claim against Gentzler. The facts alleged in the Doe complaint do not establish a duty to inform on the part of Gentzler, and further do not provide a causal connection between Gentzler’s failure to warn and Doe’s injuries.

Atlee’s theory, according to the facts alleged, would have been that a physician (Gentzler) is liable for harm caused by a patient’s (Doe’s) surgery after the physician refers the patient to a second physician, who performs diagnostic tests, and based on the results of these tests, the second physician refers the patient to other physicians (Purdy and Lundy) who recommend an invasive surgical procedure, who obtain consents and perform the operation.

Atlee cites no law to support imposition of negligence liability on the first doctor, Gentzler, under such remote circumstances. Gentzler’s treatment of Doe was simply too remote to establish negligence in the context of informed consent or even under a traditional negligence theory. Our recent decision in Shaw v. Kirschbaum, 439 Pa.Super. 24, 653 A.2d 12 (1994), is instructive. It holds that neither an informed consent nor a negligence action would lie against a cardiologist who advised surgery, and even undertook financial and travel arrangements for his patient, where the cardiologist was not the surgeon. Under the facts as alleged in Gentzler’s complaint, we conclude that Gentzler properly pleaded that Atlee lacked probable cause for bringing the Doe lawsuit on the theory of informed consent.

Doe’s complaint against Gentzler was not only based on a claim of liability for lack of informed consent, but also included a count based on an independent theory of negligence. We conclude that Gentzler presented allegations that Atlee brought the underlying negligence counts in the Doe lawsuit in a grossly negligent manner or without probable cause and for an improper purpose sufficient to sustain his action for wrongful use of civil proceedings.

According to Gentzler’s complaint, the allegations of which we take as true, Atlee obtained Doe’s medical records from Lancaster General Hospital, including the surgical consents obtained by Drs. Lundy and Purdy. Atlee then filed a writ of summons and complaint against Gentzler, in which he alleged, inter alia, that Gentzler: a) ordered the administration of blood products that were contaminated with HIV to Doe; b) ordered the administration of blood products which had not been properly tested for HIV; c) failed to “assure that the blood products he administered to his patient were properly tested”; d) failed to advise Doe that he had the option of autologous or directed donation; and e) failed to advise Doe of the risks which autologous or directed donation of blood products would minimize or eliminate. According to Gentzler’s complaint, at the time Atlee prepared and filed the Doe action with these allegations, Atlee had actual knowledge that Gentzler had not ordered the administration of blood products to Doe. Atlee made these negligence allegations against Gentzler despite this known factual inaccuracy. Therefore, the allegations of Gentzler’s wrongful use complaint, when taken as true, show that Atlee could not have “reasonably believed” in certain of the facts on which the claim was based. 42 Pa.C.S. § 8352.

Thus, the allegations of Gentzler’s complaint against Atlee, if true, establish that Atlee filed the Doe lawsuit with several known factual inaccuracies regarding Gentzler’s involvement in Doe’s care. The Doe complaint asserts that Gentzler actually administered blood products to Doe, or ordered their administration. The medical records available to Atlee prior to the filing of the action allegedly made clear to Atlee that Gentzler did not do so. Therefore, the allegations in the Doe lawsuit as to Gentzler’s negligence lacked probable cause or were made with gross negligence. Our rationale regarding the remoteness of Gentzler’s treatment to the harm Doe suffered as stated in our discussion of Gentzler’s cause of action based on informed consent is equally applicable to Atlee’s allegations of negligence against Gentzler. See Shaw v. Kirschbaum, supra, 439 Pa.Super. 24, 653 A.2d 12.

Gentzler further supports his claim that Atlee filed the Doe suit against him without probable cause or with gross negligence by stating in his complaint that before and after he filed preliminary objections in the Doe suit his lawyer wrote to Atlee, advising him that the facts alleged in the Doe complaint were inaccurate and that there was no legally cognizable cause of action against Gentzler. Atlee, however, continued the action against Gentzler until the preliminary objections that Gentzler filed were sustained and Gentzler was dismissed. No appeal was filed after the completion of the Doe case. Gentzler alleges that the initiation and continuation of the Doe action were without probable cause, and intended to harass or maliciously injure Gentzler and his reputation. We find that, at the very least, the allegations in Gentzler’s complaint make out a claim of gross negligence on the part of Atlee, and at worst, a lack of probable cause.

To summarize, we note that an action for wrongful use of civil proceedings will be upheld if the trier of fact could reasonably conclude that the defendant initiated the underlying lawsuit without probable cause. Ludmer v. Nernberg, 520 Pa. 218, 223, 553 A.2d 924, 926 (1989). The trial court decided as a matter of law that Atlee had the requisite probable cause in suing Gentzler. The judge made this determination despite the fact that he had previously dismissed Gentzler from the Doe lawsuit because Doe had “plead [sic] no facts which would support a duty on Dr. Gentzler under the circumstances of this case.” We hold that the trial court erred in its determination that Atlee had probable cause for the Doe lawsuit, since Gentzler properly alleged that Atlee did not reasonably believe that Doe’s claim was valid under the facts pleaded, and the action was not supported by the law. 42 Pa.C.S. § 8352(1). Since the procedural posture of the case was Atlee’s demurrer to Gentzler’s complaint for wrongful use, the court need not assess the merits of the case but is required only to view the facts as alleged by Gentzler to determine whether a cause of action has been asserted. Shaffer v. Stewart, supra, 326 Pa.Super. 135, 473 A.2d 1017.

Finally, we must decide whether Gentzler’s complaint contains allegations that, if true, would support a finding that Atlee filed the Doe action for an improper purpose — that is, “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.” 42 Pa.C.S. § 8351(a)(1). Gentzler has alleged that “Atlee had actual knowledge that Dr. Gentzler had not ordered the administration of blood products to John Doe,” and that Atlee knew that Gentzler “had no legal duty to advise John Doe of the risk of blood products that may be administered by surgeons.” We also must consider the pleaded facts that Gentzler’s counsel made several attempts to communicate these errors to Atlee, and Atlee had numerous opportunities after filing the lawsuit to review and discontinue the underlying action against Gentzler.

We have previously held that the plaintiff in a wrongful use of civil proceedings action need not obtain the defendant’s outright “confession” of improper purpose; an improper purpose may be inferred where the action is filed without justification. Ludmer v. Nernberg, 433 Pa.Super. 316, 640 A.2d 939 (1994) (attorney’s filing of action without client’s consent implies improper purpose); Shaffer v. Stewart, supra, 326 Pa.Super. 135, 473 A.2d 1017 (evidence existed from which jury could infer improper purpose). Moreover, Gentzler alleged facts of improper purpose, namely to harass or maliciously injure Gentzler, and unnecessarily to delay and increase the cost of litigation. The facts alleged in the Gentzler complaint tend to show more than mere negligence by Atlee in filing the Doe action against Gentzler, and state facts of improper purpose sufficient to withstand the demurrer. Compare Hart, supra (mere negligence insufficient to make cause of action for wrongful use of civil proceedings). We hold that the final prong of the Act, requiring an improper purpose, has been met. 42 Pa.C.S. § 8351.

We therefore reverse the trial court’s ruling on Atlee’s preliminary objections to Gentzler’s complaint. We find that the complaint, when viewed under the proper standard, makes out a cause of action for wrongful use of civil proceedings against appellees. See Kelly-Springfield Tire Co., supra, 408 Pa.Super. 301, 596 A.2d 867. We recognize the difficulty in' the policy decision to impose liability in these cases, especially in light of the importance of case-instigated change in the law. Our “finding should not be construed as disfavoring legitimate attempts to change existing law. Where long-standing case law is contrary to a party’s position, there may be a reasonable basis for arguing the re-evaluation of that law.” Estate of Liscio, 432 Pa.Super. 440, 638 A.2d 1019, 1022 (1994). However, we hold that this is not such a case. We need not endorse the protection of lawyers and litigants who intentionally cast their lawsuit net too wide, perhaps in the hope of encouraging settlements in baseless lawsuits against defendants who do not belong in the case.

Reversed and remanded. Jurisdiction relinquished.

      . It appears from the record that John Doe did not verify either the complaint or amended complaint. Instead, Atlee signed the complaint on behalf of his client. Title 42 Pa.C.S. § 8355 (Purdon 1982) (Supp. 1995) provides:
      ... The signature of an attorney or party constitutes a certification by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information and belief, it is well-grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification or reversal of existing law; and that it is not interposed in bad faith or for any improper purpose, such as to harass another, to maliciously injure another or to cause unnecessary delay or increase in the cost of litigation____ If a pleading, motion or other paper is signed in violation of this section, the court shall award to the successful party costs and reasonable attorney fees and may, in addition, impose a civil penally which shall not exceed $10,000 ...

        42 Pa.C.S. § 8355.

      . Autologous donation refers to the procedure by which a patient may have his own blood withdrawn and banked for future use during a surgical procedure. Directed donation refers to the procedure by which a patient's family members and friends, who are known not to be HIV positive, may donate blood for use by the patient while undergoing surgical procedures.

      . Section 8353 of the Act authorizes recovery of damages as follows: When the essential elements of an action brought pursuant to this subchapter have been established as provided in section 8351 (relating to wrongful use of civil proceedings), the plaintiff is entitled to recover for the following:
      (1) The harm normally resulting from any arrest or imprisonment, or any dispossession or interference with the advantageous use of his land, chattels or other things, suffered by him during the course of the proceedings.
      (2) The harm to his reputation by any defamatory matter alleged as the basis of the proceedings.
      (3) The expense, including any reasonable attorney fees, that he has reasonably incurred in defending himself against the proceedings.
      (4) Any specific pecuniary loss that has resulted from the proceedings.
      (5) Any emotional distress that is caused by the proceedings.
      (6) Punitive damages according to law in appropriate cases.
      42 Pa.C.S. § 8353.

      . This part of the probable cause definition is irrelevant since Gentzler’s action is brought against counsel and not against John Doe himself.

      . Because in his effort to oppose Gentzler’s allegations of lack of probable cause, Atlee relies upon his alleged belief that the action was valid under developing law (42 Pa.C.S. § 8352(1)), we need not address this additional part of the definition of probable cause. However, we note that, as a practical matter, our discussion infra of the “improper purpose” element of a wrongful use of civil proceedings action seems to overlap with this last prong of the probable cause definition. 42 Pa.C.S. § 8351(a)(1).

      . The liability of a lawyer for the tort of wrongful use has been further described in comment (d) to Restatement (Second) of Torts § 674:
      An attorney who initiates a civil proceeding on behalf of his client[,] ... even if he has no probable cause and is convinced that his client’s claim is unfounded, ... is still not liable if he acts primarily for the puipose of aiding his client in obtaining a proper adjudication of his claim.... An attorney is not required or expected to prejudge his client’s claim, and although he is fully aware that its chances of success are comparatively slight, it is his responsibility to present it to the court for adjudication if his client so insists after he has explained to the client the nature of the chances.

        If, however, the attorney acts without probable cause for belief in the possibility that the claim will succeed, and for an improper purpose, as, for example, to put pressure upon the person proceeded against in order to compel payment of another claim of his own or solely to harass the person proceeded against by bringing a claim known to be invalid, he is subject to the same liability as any other person.

      (Emphasis added). See also Kelly-Springfield Tire Co., supra at 306, 596 A.2d at 870; Hart v. O’Malley, 436 Pa.Super. 151, 647 A.2d 542, 550 (1994).

      . In determining whether a patient’s consent is "informed,” the standard is whether the physician disclosed all those facts, risks and alternatives that a reasonable person in the situation which the physician knew or should have known to be the plaintiff’s would deem significant in making a decision to undergo the recommended treatment. Cooper v. Roberts, 220 Pa.Super. 260, 268, 286 A.2d 647, 651 (1971).

      . See, e.g., Stover v. Association of Thoracic & Cardiovascular Surgeons, 431 Pa.Super. 11, 635 A.2d 1047, 1054 n. 6 (1993) (there is “a degree of artificiality in creating a distinction which limits the touching required for actionable informed consent to be the surgical cut”); Wu v. Spence, 413 Pa.Super. 352, 605 A.2d 395, 397 (1992), alloc. granted, 533 Pa. 613, 618 A.2d 402 (1992), dismissed as improvidently granted, 534 Pa. 309, 632 A.2d 1294 (1993) ("a patient’s decision to undergo drug therapy should be no less informed than a decision to undergo surgery”); Levenson v. Souser, 384 Pa.Super. 132, 557 A.2d 1081, 1086 (1989), alloc. den., 524 Pa. 621, 571 A.2d 383 (1989) (“to analyze a physician’s failure adequately to inform a patient of the possible consequences of a medical procedure under the rubric of the law of battery is illogical”); Malloy v. Shanahan, 280 Pa.Super. 440, 421 A.2d 803 (1980) (Hoffman, J., dissenting) (the battery theory of informed consent requires “absurd distinctions” between methods of drug administration). Indeed, the battery analysis has led to rather anomalous results in certain types of informed consent actions, especially where advanced technology and "hybrid” medical treatments blur the line between surgical and non-surgical procedures. For example, our law does not support an informed consent cause of action in situations where ongoing therapeutic treatment with drugs produces adverse consequences, regardless of the method of administration. Boyer v. Smith, 345 Pa.Super. 66, 497 A.2d 646 (1985) (ten day regimen of oral capsules for leg pain); Malloy v. Shanahan, supra (ongoing oral antibiotic treatment prescription). The informed consent action is no more viable because the medical procedure is a "hybrid” treatment involving a “touching,” but not surgery. Wu v. Spence, supra, 413 Pa.Super. 352, 605 A.2d 395 (no informed consent action for intravenous transfusion of antibiotics).
      We are also aware of a recent case relied upon by Atlee to support his position, Jones v. Philadelphia College of Osteopathic Medicine, 813 F.Supp. 1125 (E.D.Pa.1993), wherein the federal district court held that blood transfusions during a surgical procedure must be accompanied by informed consent. In that case, the plaintiff contracted HIV after he received blood products during back surgery. The court allowed plaintiff's informed consent action to proceed against his “primary treating physician,” who also advised plaintiff to undergo surgery and, most significantly, was the attending physician during the operation.

      . We note that Atlee’s argument that he was attempting to change the law in the Doe case is further belied by the fact that after the completion of the Doe action at the trial level Atlee failed to appeal Gentzler’s dismissal to this court and then to the supreme court, the only court with the power to effect any change at all.


author: POPOVICH, Judge: FORD ELLIOTT, Judge,

text:
    660 A.2d 1386
    Jennifer E. KIMBALL, Appellant, v. CIGNA INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued April 6, 1995.
    Filed July 11, 1995.

      Mark E. Milsop, Pittsburgh, for appellant.
    Richard L. McMillan, Pittsburgh, for appellee.
    Before POPOVICH, FORD ELLIOTT and BROSKY, JJ.
   POPOVICH, Judge:

This case involves an appeal from the order (reduced to judgment) of the Court of Common Pleas of Allegheny County denying the post-trial motions of the plaintiff/appellant, Jennifer E. Kimball, and limiting her uninsured motorist coverage to a maximum of $300,000.00 versus a claimed $900,-000. 00 with stacking.

We affirm in a case of first impression.

The facts are not in dispute: In 1983, the plaintiff was listed as a driver under her father’s policy with Cigna Insurance Co. Even with the parents’ divorce in 1984, the plaintiffs status remained unchanged under the policy, save that her mother was the only “named insured.”

On December 6, 1990, the mother executed a “sign down” form reducing the uninsured/underinsured limits of coverage from $300,000.00 to $100,000.00. With the plaintiffs purchase of a vehicle in 1991, the “endorsement” portion of the policy added the plaintiff as a “named insured.” However, at no time during the coverage period (which included two renewals of the policy) was the plaintiff informed by Cigna’s agent that the uninsured/underinsured (limits of $100,000.00) could be carried at levels equal to the liability limit of $300,000.00. Thus, Cigna never obtained an executed “sign down” document from the plaintiff evidencing such an election in coverage.

On November 23, 1992, the plaintiff was injured by an uninsured motorist. When she attempted to recover under the uninsured provisions of her policy in an amount equal to the liability limits of $300,000.00, Cigna disputed her entitlement on the basis that the mother’s execution of the “sign down” form (as a “named insured”) bound the plaintiff to the same limits of coverage, i.e., $100,000.00 for uninsured claims.

After the submission of numerous pleadings, the parties agreed to have the case resolved by a judge upon stipulated facts. Argument and briefs were presented, after which the court held: 1) a single policy existed; 2) the plaintiffs mother was the “first” named insured with the plaintiffs name to follow; 3) the plaintiffs signature and use of the amended policy required, the court to assume that the plaintiff read and comprehended its terms; 4) Cigna’s agent did not conceal any pertinent information from the plaintiff precluding her from negotiating a separate policy in her name only; and 5) Pennsylvania law was satisfied when the “first” named insured [mother] executed a written sign-down. Accordingly, the court ruled that “the total amount of uninsured motorist coverage available to plaintiff ... from the policy issued by ... Cigna ... [wa]s $300,000.00.” This appeal followed and raises but a single argument; to-wit:

I. THE LOWER COURT ERRED IN DETERMINING THAT APPELLANT, A NAMED INSURED, WAS BOUND BY THE ELECTION OF REDUCED UNINSURED MOTORIST COVERAGE BY ANOTHER NAMED INSURED TO THE SAME POLICY, WHEN APPELLANT WAS ADDED TO THE POLICY AFTER SAID ELECTION, WAS NEVER INFORMED AS TO THE AMOUNT OF COVERAGE AVAILABLE AND NEVER EXECUTED A WRITTEN REQUEST FOR LOWER COVERAGE AS IS REQUIRED BY 75 PA. C.S.A. § 1734.

In responding to the appellant’s contention, we begin with the observation that, in 1984, the No-Fault Act was repealed by the Motor Vehicle Financial Responsibility Law (MVFRA) to allow for, inter alia, uninsured/underinsured motorist coverage equal to liability coverage. See 75 Pa.C.S.A § 1731 (Supp.1994). To reject uninsured/underinsured motorist protection, the “first” named insured must be placed on notice of such a right (either at the time of application for original coverage or at the time of the first renewal). Id. at § 1791. Further, requests for uninsured/underinsured protection in amounts less than the limits of liability for bodily injury must be in writing (id. at § 1734) and evidenced by a written document prescribed by statute and executed by the “first” named insured. Id. at § 1731.

Those cases which have had occasion to interpret the MVFRL are limited to common pleas and federal court cases. Nonetheless, we sense a course to pursue from their reading. For instance, in Liberty Mutual Fire Insurance Co. v. Lindsey, 3 D. & C.4th 659 (York Cty., 1989), the court was confronted with the issue of whether the election of lower uninsured/underinsured coverage by one named insured (husband) was binding on the other named insured (wife). The court held so on the following basis: 1) the lower uninsured/underinsured limits were paid from joint accounts, which evidenced wife’s actual knowledge, understanding and acceptance of benefits and limits selected; 2) insurer’s notice to the husband and wife complied with Section 1791, raising a statutory presumption that the wife was advised of the benefits and limits available; 3) wife confirmed and ratified the husband’s selection of lower limits by electing to stay covered and not seeking a separate policy — presumes that wife has knowledge of limits of liability; 4) no evidence that wife intended to accept higher limits other than lack of her signature on release form, which absence of “her signature was a mere oversight”; and 5) wife deferred to husband on matters of insurance. 3 Pa.D. & C.4th at 667-68. Accord Hepler v. Liberty Mutual Fire Insurance Co., 7 D. & C.4th 521 (Cumberland Cty., 1990) (wife bound by the uninsured/underinsured limits requested in writing by husband); see also U.S. Fidelity & Guaranty v. Franks, 12 D. & C.4th 47 (Cumberland Cty., 1991) (named insured (father) can elect lower limits for “family member” (son, who was not listed as a “named insured” on policy)).

On the other hand, the District Court for the Eastern District of Pennsylvania in Groff v. Continental Ins. Co., 741 F.Supp. 541 (1990), had to decide, among other things, whether Ms. Groffs husband effectively reduced their uninsured coverage so as to foreclose recovery by their son’s estate.

The suit in Groff was instituted with the death of Groffs son by an uninsured motorist. Both parents were listed as “named insured” on a policy carrying $1,000,000.00 of uninsured coverage. Thereafter, Mr. Groff elected uninsured coverage of $35,000,00 and paid premiums for the lower coverage for the entire policy period, which encompassed the accident. Ms. Groff did not sign a similar document, but the insurer’s representatives maintained that the wife was present when the husband executed the reduction form. Also, an amended policy was mailed to the Groffs residence and their account was credited for the premiums paid.

The District Court concluded that Mr. Groff acted knowingly and intelligently in reducing his uninsured coverage. In doing so, the Groff Court wrote:

First, for several years previously, the Groffs obtained the same level of uninsured motorist coverage, a single $35,000 limit, from other companies — Federal Kemper Insurance Company and Utica Mutual Insurance Company. Second, the Groffs only paid the premium for the lower amount of uninsured motorist coverage. In fact, they received a reduction in their premiums reflecting Raymond Groffs election of lower coverage. Third, the Groffs never questioned the level of their uninsured motorist coverage, after receiving the endorsement amending the policy and incorporating the Pennsylvania Supplemental Automobile Application signed by Raymond Groff into the policy by reference. Finally, when the Groffs added vehicles to their insurance during the police period, the forms they received from Continental also noted that the uninsured motorist coverage was a single $35,000 limit.

741 F.Supp. at 548 (Emphasis added); cf. Nationwide Insurance Co. v. Resseguie, 782 F.Supp. 292, 294 (M.D.Pa.1992), aff’d in part, 980 F.2d 226 (3rd Cir.1992) (no one but “named insured” can reduce uninsured/underinsured coverage; where one of two “named insured” requests change in limits of coverage, the request held to bind the other “named insured”).

At bar, albeit the plaintiff was not listed as a “named insured” at the time her mother executed a “sign down” form to reduce uninsured/underinsured coverage, she was a “named insured” when the “endorsement” amending the policy and listing her as a “named insured” was received at the Kimball household. Specifically, the amendment indicated in clear language that the uninsured motorist coverage stood at $100,-000.00 and no higher. However, no action was taken by the plaintiff to rectify this level of coverage. She could have increased coverage under her mother’s policy (with accompanying premium increases) or secured her own separate policy should her mother not be amenable to the increased coverage and additional cost associated therewith. The plaintiff took no action on either front.

Moreover, the policy limits remained in effect for two renewal periods without any effort on the plaintiffs part to increase coverage beyond the $100,000.00 limit for uninsured/underinsured insurance. Rather, the premiums (at the lower rate) continued to be paid without question or complaint to the Cigna agent about the level of coverage. Under this scenario, as is consistent with 75 Pa.C.S.A. § 1791, the payment of the renewal premiums (which here occurred at least twice while the plaintiff was a “named insured”) “evidences [the plaintiffs] actual knowledge and understanding of the availability of these benefits and limits as well as the benefits and limits ... selected.” Id.; Resseguie, supra; Lindsey, supra.

Accordingly, if the plaintiff did not accept her mother’s election, upon receipt of the policy with the lower limit and lower premiums, she could have contacted the insurance company, informed them of the dissatisfaction with the amount of uninsured/underinsured coverage and requested it be corrected or obtained another policy on her own. Instead, the plaintiff accepted the policy with the lower limits without complaint and permitted payment of the lower premium without incident. To find that the plaintiff is not bound by her mother’s election and remaining silent on the issue of increased coverage, while reaping the benefits of reduced rates, would be to reward inaction. Here, the plaintiff had the means and opportunity to avoid any insurance shortfall, but she took no action to remedy the matter.

Therefore, we will not act in the plaintiffs stead and do what she could have done for herself once she received the endorsement sheet reflecting coverage below that which she now claims was never intended. Further, we will not amend a contract absent any evidence of fraud or mutual mistake of fact. Accordingly, under the particular facts of this case, we find no fault with the court’s order.

Judgment affirmed.

FORD ELLIOTT, J., files a dissenting statement.

FORD ELLIOTT, Judge,

dissenting:

Despite my agreement with much of the majority’s analysis, I must respectfully dissent from the majority’s conclusion that a party added to a policy as a named insured after another named insured has executed a sign-down in uninsured motorist benefits is bound by that sign-down.

I agree with the majority that, where a first named insured has executed a valid sign-down under 75 Pa.C.S.A. § 1734, any other individuals who are named insureds at the time the sign-down is executed are bound by the terms of the sign-down. This analysis comports with the rule of statutory construction that requires us to construe sections of a statute so as not to promote or further an absurd result. Crosby by Crosby v. Sultz, 405 Pa.Super. 527, 540-41, 592 A.2d 1337, 1344-45 (1991). Section 1731, which allows an insured to reject uninsured motorist coverage altogether, only requires the signature of the first named insured; therefore, to require signatures of other named insureds under § 1734, in which only a reduction of uninsured motorist benefits is contemplated, would be to countenance such an absurd result.

In addition, I am comfortable with the fiction that other parties to an insurance contract (other named insureds) are presumed to have acquiesced in its terms, and even in additions or deletions to its terms, because they are presumed to have been aware of the terms at the time the contract was formed or altered. Nevertheless, it is noteworthy that in every case cited by the majority in which such a result was reached, the court based its determination that other named insureds were bound by the sign-down or waiver on the particular facts and circumstances of the case rather than upon a clear application of the rules of statutory interpretation. See, for example, Liberty Mutual Fire Insurance Co. v. Lindsey, 3 D. & C.4th 659 (York Cty., 1989), affirmed, 414 Pa.Super. 658, 598 A.2d 1337 (1991) (wife named insured is bound by uninsured/underinsured limits requested in writing by husband). Accord Hepler v. Liberty Mutual Fire Insurance Co., 7 D. & C.4th 521 (Cumberland Cty., 1990) (Hepler II). But see Groff v. Continental Insurance Co., 741 F.Supp. 541 (E.D.Pa.1990) (any reduction of uninsured motorist coverage in writing by husband was not effective as to wife who was also named insured).

The instant ease is factually distinct, however, from these cases. Appellant in the case before us was added as a named insured after her mother executed a sign down in uninsured motorist benefits. Prior to appellant’s purchase of a car in March of 1991, appellant had merely been an insured, as a member of her mother’s household who operated a motor vehicle registered in her mother’s name. According to the terms of the policy, however, appellant’s new car, registered in her name, could only be covered by the policy if she became a named insured. Her addition to the policy as a named insured thus elevated her status from that of third party beneficiary of the policy, as were other members of the household who drove cars registered in mother’s name, to a party to the contract itself. As to the coverage on appellant’s own car, her rights under the policy were thus distinct from those of her mother. As such, she was entitled to receive notice of her statutory right to purchase up to $300,000 of uninsured motorist coverage. Likewise, appellee was required to obtain a written sign-down from appellant as required by § 1734.

The sections of the Motor Vehicle Financial Responsibility Act at issue place upon the insurer the burden of notifying an insured of his or her right to obtain an amount of uninsured motorist coverage equal to the liability insurance provided by the policy. Botsko v. Donegal Mutual Insurance Co., 423 Pa.Super. 41, 45, 620 A.2d 30, 32 (1993) (if insurer does not follow statute governing notice of available benefits and limits respecting uninsured and underinsured motorist coverage, statutory mandate regarding such coverage may be complied with only by including coverage or by obtaining affirmatively expressed rejection in writing from insured). I cannot agree, therefore, that appellant in the instant case is bound by her mother’s sign-down. Having failed to notify appellant of her rights, or to obtain a waiver of those rights in writing as required by statute, appellee should be required to provide uninsured motorist benefits to appellant in the amount equal to the limits of liability for bodily injury under the terms of the policy upon which she is a named insured.

      . The order became appealable with its entry into the judgment docket on praecipe by the plaintiff. See Pa.R.App.P. 302(a).

      . The plaintiff sought $900,000.00 under the stacking provisions of the Motor Vehicle Financing Responsibility Law (75 Pa.C.S.A. § 1738 (Supp.1994)), given the 3 insured vehicles in the household by Cigna.

      . 75 Pa.C.S.A. § 1701 et seq. (Supp.1994).

      . The Groff Court stated, in dicta, that the wife’s right to select coverage could not be waived by the husband’s selection of lower coverage, each being a "named insured.” However, this position was predicated upon a common pleas court case since repudiated by the jurist that issued it. See Hepler v. Liberty Mutual Fire Ins. Co., 7 D. & C.4th 521, 526 (Cumberland Cty., 1990). Thus, we find unpersuasive that portion of Groff indicating that a named insured cannot waive another named insured’s level of coverage.


author: DEL SOLE, Judge:

text:
    661 A.2d 1
    UNITED VALLEY BANK, Appellee, v. Steven WOLK and Jeanne Wolk, University Cadillac, Inc., Appeal of Steven WOLK and Jeanne Wolk, Appellants. UNITED VALLEY BANK, Appellee, v. Donald WOLK, Intermet Realty Partnership Appeal of Donald WOLK, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 31, 1995.
    Filed May 16, 1995.
    Reargument Denied July 28, 1995.
    Michael R. Needle, Philadelphia, for Wolk, appellants.

      James J. Rodgers, Philadelphia, for United Valley Bank, appellee.
    Before DEL SOLE, KELLY and BROSKY, JJ.
   DEL SOLE, Judge:

Appellants, Steven Wolk and Jeanne Wolk and Appellant Donald Wolk file two separate appeals from the trial court’s Orders dated June 1, 1994 which denied their Petitions to Open Confessed Judgment entered on June 11, 1991. The trial court summarized the facts underlying these appeals as follows:

Appellant, Steven Wolk was the President of Lease-A-Fleet, Inc., (LAF), a Pennsylvania corporation engaged in the business of leasing fleets of automobiles to daily rental car operators. LAF obtained much of its rental inventory from Morse Operations, Inc., (MOI), a Florida corporation which owns numerous automobile dealerships.
In December of 1989, United Valley Bank (UVB) lent $600,000.00 to LAF. Pursuant to the written loan agreement, LAF entered into a security agreement with UVB, which granted UVB a first lien on LAF’s accounts receivable and other intangibles. In addition, Steven and Jeanne Wolk executed a written guaranty of the loan which included a warrant of attorney to confess judgment against them. On May 30, 1991, LAF filed a petition for Chapter 11 Bankruptcy in the United States District Court for the Eastern District of Pennsylvania and on June 11,1991, UVB confessed judgment against Steven and Jeanne Wolk for the above mentioned $600,000.00 loan, plus interest and attorney’s fees. While LAF continued in business, it deposited $842,939.32 received from customers, in Meridian Bank and UVB accounts. By bankruptcy court order, it was determined that these customers’ funds were subject to the above mentioned first lien which LAF had granted to UVB.
On May 15, 1992, University Cadillac, Inc., a Florida corporation and an affiliate of MOI, entered into a purchase agreement with UVB, whereby UVB assigned its rights under the subject loan to University Cadillac, which purchased the loan with MOI’s funds.
On July 22, 1993, the bankruptcy court dismissed LAF’s bankruptcy (but this dismissal was later stayed) and on the same day, University Cadillac confessed judgement against LAF for the loan that it had purchased from UVB, and for interest and attorney’s fees. Also on that same day, University Cadillac obtained a writ of execution to garnish LAF’s customers’ funds being held in UVB accounts and elsewhere. Still on July 22,1993, MOI obtained a judgment against LAF for money purportedly owed it by LAF and obtained a -writ of execution to garnish the same above mentioned customers’ funds.
In August of 1993, UVB and Meridian paid over to University Cadillac, the said customers’ funds which were subject to the first lien on LAF’s accounts receivable, which UVB had assigned to University Cadillac. The funds totalled $749,-176.65.
In March, 1994, University Cadillac began execution proceedings on their subject confessed judgment against Steven Wolk’s interest in certain real property.™ A sheriffs sale was scheduled for June 3, 1994. Appellant’s appeared in this Court on an emergency basis on June 2, 1994, where they sought to open or strike University Cadillac’s judgment against LAF.
[Footnote] 1: Of the $749,176.65 that University Cadillac received from LAF’s garnished bank accounts $212,295.58 was applied to LAF’s debt secured by Appellant’s guarantees. The balance was applied toward the above mentioned debt LAF owed to MOI.

Trial Court Opinion filed July 18, 1994 at pages 1-3.

Pennsylvania Rule of Civil Procedure 2959 outlines the procedure to be followed in petitioning the trial court to open or strike a confessed judgment. It reads, in pertinent part, as follows:

Rule 2959. Striking Off or Opening Judgment; Pleadings; Procedure
(a) Relief from a judgment by confession shall be sought by petition. All grounds for relief, whether to strike off the judgment or to open it, must be asserted in a single petition. The petition may be filed in the county in which the judgment was originally entered, in any county to which the judgment has been transferred or in any other county in which the sheriff has received a writ of execution directed to him to enforce the judgment.
(b) If the petition states prima facie grounds for relief the court shall issue a rule to show cause and may grant a stay of proceedings. After being served with a copy of the petition the plaintiff shall file an answer on or before the return day of the rule. The return day of the rule shall be fixed by the court by local rule rule or special order.
(c) A party waives all defenses and objections which he does not include in his petition or answer.
(e) The court shall dispose of the rule on petition and answer, and on any testimony, depositions, admissions and other evidénce. The court for cause shown may stay proceedings on the petition insofar as it seeks to open the judgment pending disposition of the application to strike off the judgment. If evidence is produced which in a jury trial would require the issues to be submitted to the jury the court shall open the judgment.
(f) The lien of the judgment or of any levy or attachment shall be preserved while the proceedings to strike off or open the judgment are pending.

Pa.R.C.P. No. 2959, 42 Pa.C.S.A.

The petitions at issue in the present case are the third attempts by Appellants to either Strike or Open the confessed judgments that were entered against them on June 11, 1991. Appellants’ prior petitions were denied by Orders filed on January 29, 1993 and February 4, 1993. As the trial court correctly held, “[t]he appellants should not be allowed a third opportunity and their appeal should be denied on this basis.” Absent the fraudulent concealment of a matter that should have been raised in a party’s initial petition to Open or Strike a confessed judgment, Rule 2959 clearly states that “[a]ll grounds for relief, whether to strike off the judgment or open it, must be asserted in a single petition”. Pa.R.C.P. No. 2959(a), 42 Pa.C.S.A. Appellants have ignored this limitation by filing successive petitions. This is in clear violation of Rule 2959 and, therefore, we affirm the trial court’s Order denying their petitions.

Order affirmed.


author: CERCONE, Judge:

text:
    661 A.2d 3
    COMMONWEALTH of Pennsylvania, Appellant, v. Jeffrey NESTER.
    Superior Court of Pennsylvania.
    Argued March 8, 1995.
    Filed June 8, 1995.

      Iva C. Dougherty, Asst. Dist. Atty., Reading, for Com., appellant.
    Emmanuel H. Dimitriou, Reading, for appellee.
    Before DEL SOLE, FORD ELLIOTT and CERCONE, JJ.
   CERCONE, Judge:

The Commonwealth of Pennsylvania appeals the order entered by the trial court which granted defendant’s motion to suppress certain pre-trial statements. We affirm.

On February 7, 1994, a caseworker from Berks County Children and Youth Services (CYS) received a report of suspected child abuse concerning K.K. The caseworker, Michelle Kauffman, called K.K.’s mother requesting that she, defendant (her paramour), and K.K. come to the CYS office for a meeting. Once there, Ms. Kauffman separately interviewed K.K., her mother, and defendant. During his interview, defendant confessed to placing his penis in the child’s mouth.

Police subsequently arrested defendant and charged him with involuntary deviate sexual intercourse, aggravated indecent assault, indecent assault, indecent exposure, and endangering the welfare of a child. Defendant filed an Omnibus Pretrial Motion seeking suppression of his statement to the Berks County Children and Youth Services (hereinafter “CYS”) caseworker. After a hearing, the trial court granted defendant’s motion.

The Commonwealth timely appealed the trial court’s order and now raises two issues for our review:

A. WHETHER THE LOWER COURT ERRED IN APPLYING THE MIRANDA STANDARD TO MS. KAUFFMAN’S INTERVIEW WITH [DEFENDANT]?
B. WHETHER THE LOWER COURT ERRED IN SUPPRESSING [DEFENDANT’S] STATEMENT AS INVOLUNTARY BASED SOLELY ON HIS SUBJECTIVE NERVOUSNESS?

We shall address these issues in order.

The Commonwealth first argues that the trial court improperly applied the standard set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) in determining whether defendant voluntarily gave a statement to CYS concerning the alleged abuse. Although an appeal from a suppression ruling is interlocutory, the Commonwealth may appeal upon certification that the suppression order substantially handicaps prosecution. See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).

Without question, it is the province of the suppression court to make findings of fact and conclusions of law as to whether evidence was obtained in violation of an accused’s constitutional rights. Commonwealth v. Tuck, 322 Pa.Super. 328, 332, 469 A.2d 644, 646 (1983). The standard of review which governs a ruling on a motion to suppress is well-settled. An appellate court must first ascertain whether the record supports the factual findings of the suppression court, and then determine the reasonableness of the inferences and legal conclusions drawn therefrom. Commonwealth v. Oglialoro, 377 Pa.Super. 317, 318, 547 A.2d 387, 387 (1988) aff’d, 525 Pa. 250, 579 A.2d 1288 (1990). In reviewing an appeal taken by the Commonwealth from a suppression order,

we must consider only the evidence of the defendant’s witnesses and so much of the Commonwealth’s evidence that, read in the context of the record as a whole, remains uncontradicted. Furthermore, our scope of appellate review is limited primarily to questions of law. We are bound by the suppression court’s findings of fact if those findings are supported by the record. Factual findings wholly lacking in evidence, however, may be rejected.

Commonwealth v. Bennett, 412 Pa.Super. 603, 606, 604 A.2d 276, 277 (1992) (citations omitted).

In Miranda, supra, the United States Supreme Court established a conclusive presumption that all confessions or admissions made during a period of custodial interrogation are, intrinsically, compelled in violation of the Fifth Amendment’s privilege against self-incrimination. Miranda v. Arizona, 384 U.S. at 467, 86 S.Ct. at 1624. The threshold requirements necessitating Miranda warnings are (1) custodial interrogation; and (2) government involvement. Commonwealth v. Ramos, 367 Pa.Super. 84, 89, 532 A.2d 465, 467 (1987). Here, defendant was not in “custody” at the time of the questioning. Accordingly, the law did not require the. CYS caseworker to advise defendant of his rights under Miranda.

However, in order for a confession to be admissible, it must be freely and voluntarily given. Commonwealth v. Taylor, 494 Pa. 399, 403, 431 A.2d 915, 917 (1981). Accord Commonwealth v. Turner, 387 Pa.Super. 217, 221, 563 A.2d 1262, 1264 (1989), appeal granted, 526 Pa. 634, 584 A.2d 317 (1990). A confession “must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.” Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964) (quoting Bram v. United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 186-87, 42 L.Ed. 568 (1892)). If the confession is not freely given,

if [the defendant’s] will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process____ The line of distinction is that at which governing self-direction is lost and compulsion, of whatever nature or however infused, propels or helps to propel the confession.

Culombe v. Connecticut, 367 U.S. 568, 604, 81 S.Ct. 1860, 1880, 6 L.Ed.2d 1037 (1961) (citation omitted). Accord Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 149, 239 A.2d 426, 430 (1968).

The record in the instant case supports the trial court’s finding that appellant’s confession was not voluntary. Testimony at the suppression hearing established that defendant waited at the CYS office approximately one and one-half hours prior to being interviewed. N.T. 7/15/94 at 7, 8. Defendant’s “interview” lasted approximately one hour and fifteen minutes. Id. at 14. Although the CYS caseworker gave defendant a “rights” letter to read, defendant never stated that he read or understood the contents of the letter. Id. at 9, 10. Defendant only informed the caseworker that he had no questions regarding the letter. Id.

During the course of the interview, defendant began to shake excessively. Id. at 26. Although defendant denied the allegations made by the caseworker, the caseworker informed defendant that if he did not talk to her, he would have to talk to the police and “it would be a lot harder talking to the police than it would be to her.” Id. at 29. The caseworker also indicated that if defendant cooperated, he would receive counseling. Id. at 20. Defendant testified that he was under the impression that if he did not talk to the caseworker, he would go to jail that night. Id. Moreover, defendant indicated that he did not feel free to leave CYS. Id. at 33. The interview terminated when the caseworker called emergency personnel to treat defendant for possible suicidal tendencies. Id. at 24, 26.

We find that under this scenario, defendant did not issue a voluntary confession. The caseworker’s threat of police involvement, coupled with the implied promise of counseling if defendant cooperated, acted together to negate the voluntariness of defendant’s statement. Under such circumstances, we find no error on the part of the trial court in granting defendant’s motion to suppress his confession.

Order affirmed.

FORD ELLIOTT, J., dissents.

      . 18 Pa.C.S.A. § 3123.

      . Id. § 3125.

      . Id. § 3126.

      . Id. § 3127.

      . Id. § 4304.

      . Moreover, we note that Miranda warnings are not required in the context of a state or county official receiving inculpatory statements.
        Commonwealth v. Arnold, 356 Pa.Super. 343, 353, 514 A.2d 890, 895 (1986) (citing Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984)).


author:
HUDOCK, Judge:
      POPOVICH, Judge,

text:
    661 A.2d 6
    COMMONWEALTH of Pennsylvania, Appellant, v. Mark F. HARRISON, Appellee.
    Superior Court of Pennsylvania.
    Submitted Jan. 23, 1995.
    Filed June 14, 1995.

      Gerald P. Deady, Wilkes-Barre, for appellee.
    Scott C. Gartley, Asst. Dist. Atty., Wilkes-Barre, for the Com., appellant.

      Before POPOVICH, HUDOCK and HESTER, JJ.
   HUDOCK, Judge:

In this appeal the Commonwealth challenges the sentence imposed upon Appellee after he entered a plea of guilty to driving under the influence, as well as the summary offense of driving while operating privilege is suspended or revoked, DUI-related. We reverse and remand with instructions.

Appellee was sentenced to three months of house arrest and one year probation for his drunk driving conviction. On the summary offense of driving while operating privilege is suspended or revoked, DUI-related, Appellee was sentenced to intermediate punishment in the form of ninety days of home confinement. On appeal, the Commonwealth contends Appellee’s sentence on this latter conviction is illegal because a sentence of home confinement does not constitute “imprisonment” as required by the statute charged. See 75 Pa.C.S.A. § 1543(b) (“upon conviction, ... [the defendant] shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period of not less than 90 days.”). Because section 9721(a)(1) of the Sentencing Code, 42 Pa.C.S.A., prohibits a sentence of intermediate punishment for any offense where a mandatory minimum sentence is applicable unless specifically authorized under section 9763 of the Sentencing Code, continues the Commonwealth, the court below erred in failing to impose a sentence of ninety days imprisonment for the summary conviction. We agree.

The Court recently agreed with the Commonwealth’s present contention in Commonwealth v. Yale, 441 Pa.Super. 404, 657 A.2d 987 (1995). In Yale, Yale entered a plea of guilty to three counts of driving under the influence, the summary offense of driving while operating privileges were suspended or revoked, DUI-related, and the summary offense of accidents involving damage to unattended property. Thereafter, Yale was sentenced on the drunk driving violation to home confinement of six to twenty-three months without electronic monitoring and immediate parole after the minimum sentence was served. He was ordered to pay the costs of prosecution and a $300.00 fíne. In addition, he was ordered to perform twenty-five hours of community service and attend an alcohol safe school. On the section 1543(b) conviction Yale was sentenced to ninety days home confinement, to run concurrent with his drunk driving sentence, and to pay a $1,000.00 fine. On the summary charge of damaging unattended property, Yale was fined $50.00.

In its subsequent appeal, the Commonwealth contended that the trial court erred in failing to impose a sentence of ninety days imprisonment for the section 1543(b) conviction. This Court agreed, and reasoned as follows:

Section 9721 of the Sentencing Code expressly prohibits a sentence of intermediate punishment for any offense where a mandatory minimum sentence is applicable unless specifically authorized under section 9763 of the Sentencing Code. See 42 Pa.C.S. § 9721(a)(1). A violation of 75 Pa.C.S. § 3731(a) requires a mandatory minimum sentence of forty-eight hours imprisonment, plus fines, and a violation of 75 Pa.C.S. § 1543(b) requires a mandatory minimum sentence of ninety days imprisonment, plus fines.
42 Pa.C.S. § 9763(c) provides the following restriction: A defendant convicted under 75 Pa.C.S. § 3731(e) (relating to driving under influence of alcohol or controlled substance) may only be sentenced to intermediate punishment:
(1) in a residential inpatient program or in a residential rehabilitative center; or
(2) by house arrest or electronic surveillance combined with drug and alcohol treatment.
However, 42 Pa.C.S. § 9763(c) provides no restriction for violations of 75 Pa.C.S. 1543(b). Therefore, in the absence of an express restriction, it is clear that the mandatory minimum sentence applies.

Id. 441 Pa.Super. 409, 657 A.2d at 989 (emphasis in original).

In the present case, the trial court properly sentenced Appellee to an intermediate punishment for his driving under the influence conviction pursuant to section 9763(c). However, the concurrent sentence of intermediate punishment for the section 1543(b) conviction was not permitted. Thus, as in Yale, we must reverse and remand.

Rather than filing an appellate brief, Appellee has forwarded to this Court a stipulation of the parties, which states that he has already served ninety days home confinement for the section 1543(b) conviction. Thus, Appellee contends that the present appeal is moot. We cannot agree.

In this case the Commonwealth timely moved for reconsideration of Appellee’s sentence on the basis that the sentence for the suspension violation was illegal, that is, a home monitoring program was not an available sentencing alternative. Clearly, the Commonwealth had the right to pursue such a claim. As our Supreme Court stated in Commonwealth v. Jones, 520 Pa. 385, 554 A.2d 50 (1989):

[B]oth the defendant and the Commonwealth have the right to appeal the legality of a sentence, 42 Pa.C.S.A. § 9781(a), and the illegal sentence imposed in this case would certainly have been corrected on appeal [because the minimum sentences imposed were greater than one-half of the maximum sentences. 42 Pa.C.S.A. § 9756(b) ]. Moreover, it has long been the opinion of a dissenting segment of this Court that an illegal sentence is a legal nullity, and sentencing courts must have the authority to correct such a sentence even if that means increasing the sentence. Accordingly, ... we find no merit to appellant’s claim that the sentencing court herein improperly modified the original illegal sentence that was imposed by increasing the maximum period of incarceration after appellant had begun serving the sentence.

Id. 520 Pa. 389, 554 A.2d at 52 (citations and footnote omitted). See also Commonwealth v. Kunish, 529 Pa. 206, 214, 602 A.2d 849, 853 (1992) (with regard to the protections of the double jeopardy clause, statutes relevant to the length of a defendant’s sentence may defeat a legitimate expectation of finality to a criminal sentence; a defendant is charged with knowledge of applicable statutory provisions); Commonwealth v. Johnston, 348 Pa.Super. 160, 164, 501 A.2d 1119, 1121 (1985), aff’d, 515 Pa. 454, 530 A.2d 74 (1987) (appellate review of defendant’s sentence, as sought by the Commonwealth, and a possible subsequent increase therein, were not precluded by double jeopardy considerations); Commonwealth v. Anderson, 304 Pa.Super. 476, 482, 450 A.2d 1011, 1014 (1982) (no sentence is final until the right of appellate review has been exhausted or waived).

Although the court below denied the Commonwealth’s motion, the motion and subsequent appeal put Appellee on notice that the Commonwealth maintained that the sentence was illegal. In addition, there exists in the present case no reliance by Appellee upon the assurance of prison authorities or other clerical errors which worked to Appellee’s detriment. See Commonwealth v. Kriston, 527 Pa. 90, 588 A.2d 898 (1991) (defendant who was erroneously transferred by prison authorities into home monitoring, while being assured that time spent therein would be counted toward his minimum sentence, was entitled to credit for time served); Jacobs v. Robinson, 49 Pa.Commw. 194, 410 A.2d 959 (1980) (inasmuch as erroneous release was attributable to prison authorities rather than to any wrongdoing by the prisoner, the prisoner was entitled to credit for the time in question). As noted above, our Supreme Court has stated that an illegal sentence is a legal nullity. Jones, 554 A.2d at 52. Thus, although it appears Appellant served his “illegal sentence” concurrent with his legal sentence on the drunk driving conviction, this fact does not prevent this Court from remanding for the imposition of the mandatory minimum sentence he should have received for the section 1543(b) violation. To hold otherwise would condone the imposition of patently illegal sentences and would invite trial courts to fashion sentences contrary to clear legislative intent.

We reverse and remand this case to the sentencing court for actions consistent with this memorandum. Jurisdiction relinquished.

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

POPOVICH, Judge,

concurring and dissenting.

On the summary offense of driving while operating privilege is suspended or revoked, DUI related, 75 Pa.C.S.A. § 1543(b), appellee was sentenced to intermediate punishment in the form of ninety (90) days of “home confinement.” While it is abundantly clear that the lower court imposed an illegal sentence for appellee’s violation of 75 Pa.C.S.A. § 1543(b), I am convinced that manifest justice requires that we affirm his judgment of sentence. Accordingly, I dissent from that portion of the majority’s opinion which remands this case for resentencing.

Having determined that the lower court imposed an illegal sentence when it failed to sentence appellee to a minimum of ninety (90) days of imprisonment for his violation of 75 Pa. C.S.A. § 1543(b), we must decide whether to remand for resentencing or permit the illegal sentence to stand. I believe that guidance for resolving this question is found in our Supreme Court’s decision of Commonwealth v. Kriston, 527 Pa. 90, 588 A.2d 898 (1991). Therein, Kriston was transferred by the prison warden into an electronic home confinement program to serve the time remaining on his mandatory sentence of “imprisonment” for his second driving under the influence conviction. When Kriston sought parole after expiration of his mandatory minimum sentence of thirty (30) days, the lower court denied his request on the grounds that only ten of those days were actually served in prison. Although the Supreme Court concluded that electronic home confinement does not qualify as “imprisonment”, our high court nevertheless granted Kriston credit for the time he spent in home confinement because “denying [Kriston] credit for time served in home monitoring would constitute a manifest injustice.” Kriston, 527 Pa. 96, 588 A.2d at 901 (Emphasis added); see also, Jacobs v. Robinson, 49 Pa.Cmwlth. 194, 410 A.2d 959 (1980) (convict released on clerical error given credit towards minimum sentence for time spend while released); cf., Commonwealth v. Conahan, 527 Pa. 199, 589 A.2d 1107 (1991) (defendant given credit towards sentence of “imprisonment” for time spent in a voluntary inpatient rehabilitation program).

Instantly, appellee was specifically sentenced by the lower court to home confinement, rather than prison, for violating 75 Pa.C.S.A. § 1543(b). Both parties agree that appellee has served his ninety (90) days of home confinement. Thus, I submit that appellee’s situation is analogous to that in Kriston, supra, and denying appellee credit for time he has already served in home confinement towards his mandatory minimum sentence of “imprisonment” would, as in Kriston, supra, constitute manifest injustice. The majority would distinguish Kriston, supra, and Jacobs, supra, 49 Pa.Cmwlth. 194, 410 A.2d 959, on the grounds that appellant was not released from prison because of clerical errors and/or did not serve his time in home confinement based on the assurances of a prison official. However, I would suggest appellant has an even stronger case than that presented in Kriston, supra, and Jacobs, supra, since appellant was serving his sentence of home confinement based on the assurance of the Court of Common Pleas of Luzerne County that it was a legal sentence. Accordingly, I would find that appellee has served his sentence for violating 75 Pa.C.S.A. § 1543(b), albeit an illegal sentence, and I would not remand for resentencing.

      . See 75 Pa.C.S.A. §§ 3731(a)(1) and 1543(b), respectively.

      . I would distinguish the present case from Commonwealth v. Smith, 528 Pa. 380, 598 A.2d 268 (1991), wherein, the Commonwealth claimed that the sentence was illegal due to the trial court’s refusal to apply the mandatory minimum sentencing provisions of 42 Pa.C.S.A. § 9714. In Smith, supra, the mandatory sentencing provision in question specifically provided that the Commonwealth could appeal a sentencing court’s refusal to apply the mandatory sentencing provision. 42 Pa.C.S.A. § 9714(e). Thus, in Smith, supra, there was not a violation of the Double Jeopardy Clause of the United States Constitution or the Pennsylvania Constitution, since a more severe sentence may be imposed on remand where a statute specifically authorizes an increased sentence following an appeal. Smith, 598 A.2d at 275, citing, United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980). However, instantly, the statute in question, 75 Pa.C.S.A. § 1543(b), does not specifically provide for an appeal by the Commonwealth when the court refuses to impose the mandatory sentence and a subsequent increase sentence after a successful appeal.