author: SPAETH, President Judge:

text:
    493 A.2d 710
    Christina M. REED, Appellant, v. PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Submitted Oct. 24, 1984.
    Filed May 17, 1985.

      Thomas J. Ridge, Erie, for appellant.
    Mark E. Mioduszewski, Erie, for appellee.
    Before SPAETH, President Judge, and BROSKY and OLSZEWSKI, JJ.
   SPAETH, President Judge:

This appeal is from an order granting appellee’s motion for judgment on the pleadings. The trial court held that appellant’s claim for additional no-fault benefits was barred by the statute of limitations contained in the Pennsylvania No-fault Motor Vehicle Insurance Act, 40 P.S. § 1009.-106(c)(1). We affirm.

1

Before reaching appellant’s argument we shall consider appellee’s arguments that appellant commenced this action improperly, and that, having failed to file exceptions, appellant has preserved no issues for review on appeal.

Appellee first argues, and we agree, that an action under the No-fault Act is to be commenced by praecipe for writ of summons or complaint as provided in Pa.R.C.P. 1007. Floczak v. Nationwide Insurance Company, 289 Pa.Super. 438, 433 A.2d 885 (1981). However, appellant’s petition was filed before our decision in Floczak. Moreover, even if the petition had been filed after Floczak, appellee, by filing a reply to the petition, rather than preliminary objections, waived objection to the form of action. Jones v. State Automobile Insurance Association, 309 Pa.Super. 477, 455 A.2d 710 (1983). Indeed, the trial court, in an opinion and order dated February 3, 1982, anticipating our decision in Jones, stated that it would “deem the petition and reply to be the equivalent to a complaint and answer.” Slip op. at 2.

Appellee next argues that Jones required appellant to file exceptions to the trial court’s order granting judgment on the pleadings. Appellee’s reliance on Jones is misplaced. In Jones, the appeal was from the order “dismissing” a petition for no-fault benefits after the case had been submitted to the trial court on petition, rule, answer and depositions, and following oral argument. In ruling that exceptions were required, we treated the case, which was an appeal from an order granting summary judgment, Pa.NC.P. 1035, as on its facts equivalent to an appeal from the disposition of a case on its merits in a non-jury trial, Pa.R.C.P. 1038. So treated, exceptions were required. Here, in contrast, the trial court entered judgment on the pleadings, Pa.R.C.P. 1034, ruling that appellant’s action was barred by the statute of limitations. In so ruling, the court did not go beyond the pleadings, as the trial court had done in Jones. See Bata v. Central Penn National Bank, 423. Pa. 373, 224 A.2d 174 (1966), cert. denied, 386 U.S. 1007, 87 S.Ct. 1348, 18 L.Ed.2d 433 (1967). Accordingly, appellant was not required to file exceptions.

2

Appellant received no-fault benefits from appellee for injuries sustained in an automobile accident. The last payment was received on October 13, 1978. On May 20, 1981, appellant filed her petition for additional no-fault benefits, alleging that:

On or about February 11, 1981, [appellant] was advised by a physician other than her original treating physician that the residual cosmetic and functional problems she experienced as a result of her original automobile accident could be treated through additional surgery by medical specialists not available in the Erie community.
Petition If 5.

The No-fault Act provides:

(c) Time limitations on actions to recover benefits.
(1) If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefore may be commenced not later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier. If no-fault benefits have been paid for loss arising otherwise than from death, an action for further benefits, other than surviv- or’s benefits, by either the same or another claimant; may be commenced not later than two years after the last payment of benefits.
40 P.S. § 1009.106(c)(1).

Appellant, acknowledging that her petition was filed “later than two years after the last payment of benefits,” argues that the “discovery rule” applies to her claim: “Since the action was commenced within the four-year statute of repose and since [appellant] had no reason to know of the need and availability of further treatment, she should not be denied the opportunity to obtain additional medical care.” Brief for Appellant at 9. Rejecting appellant’s argument, the trial court relied on McGlade v. Ohio Casualty Ins. Co., 18 D. & C.3d 676 (1980), which this court by memorandum opinion affirmed per curiam, 295 Pa.Super. 563, 435 A.2d 919 (1981). While this court’s per curiam affirmance of a trial court opinion is of no precedential value, we agree with the conclusion of the trial court here that the discovery rule is not an exception to the statute of limitations in the second sentence of Section 106(c)(1).

At the outset we note that on its face, appellant’s petition for additional benefits does not appear to raise the discovery rule. Under the discovery rule, the statute of limitations does not begin to run until the plaintiff knows or reasonably should have known that he has been injured and that his injury has been caused by another party’s conduct. Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 135, 471 A.2d 493, 500 (1984). See also Staiano v. Johns Manville Corp., 304 Pa.Super. 280, 281, 450 A.2d 681, 684 (1982), quoting Volpe v. Johns-Manville Corp., 4 Phila. County Reporter 290, 295-96 (1980) (statute begins to run when plaintiff has: “(1) knowledge of the injury; (2) knowledge of the operative cause of the injury; and (3) knowledge of the causative relationship between the injury and the operative conduct”) (emphasis in original). Here, appellant does not ask for additional no-fault benefits because she has just become aware of an injury that she suffered as a result of the accident. Instead, she states that she has become aware that additional treatment is available for the injuries she was aware of. Thus, even if we were to hold that the discovery rule should be incorporated into Section 106(c)(1), as appellant argues it should be, we should have difficulty, on the pleadings before us, in concluding that the rule would apply in this case.

Nevertheless, assuming that appellant’s petition does properly raise the discovery rule, we nevertheless conclude that it is not to be applied to Section 106(c)(1). Appellant misreads the statute in arguing that the four-year statute of repose contained in the first sentence of Section 106(c)(1) should likewise apply to the second sentence. An action may be brought up to four years from the date loss is sustained only “[i]f no-fault benefits have not been paid for loss arising otherwise than from death, ...” (emphasis added). Moreover, to commence suit after two years, but within four years after loss is sustained, when no-fault benefits have not been paid, the victim must show that “in the exercise of reasonable diligence [he] should [not] have known, that the loss was caused by the accident.” When, however, no-fault benefits have been paid, the victim may claim additional benefits only within “two years of the last payment of benefits.” It would be unnecessary, if not redundant, to incorporate the “discovery rule” into the second sentence of Section 106(c)(1), for, by virtue of having made prior claims for no-fault benefits, the victim has acknowledged the injury — in the language of the No-fault Act, a “loss” has been “suffered.” In submitting a prior claim appellant met the requirements of the discovery rule — she knew that she had been injured and that her injury had been caused by another party’s conduct. See Cathcart v. Keene Industrial Insulation, supra. With that knowledge she was placed on notice that any further claim for loss resulting from the accident would have to be made within two years of the last payment.

While we are aware of no appellate decision that has explicitly held that the discovery rule is not to apply in a case where a claim for no-fault benefits has been made more than two years after the last payment, we have consistently construed Section 106(c)(1) to bar additional claims after the two-year period has elapsed, see Fidelibus v. State Automobile Insurance Association, 315 Pa.Super. 338, 461 A.2d 1309 (1983); Fusco v. Keystone Insurance Company, 312 Pa.Super. 471, 458 A.2d 1390 (1983); Platts v. Government Employees Insurance Co., 301 Pa.Super. 379, 447 A.2d 1017 (1982), and we agree with the trial court in McGlade v. Ohio Casualty Ins. Co., supra, in which the court rejected the argument that the discovery rule should apply to the second sentence of Section 106(c)(1): Once a benefit has been paid, ... and there is an acknowledged accident-related loss, both the insurance company and the injured party are on notice that a new statute of limitations begins to run from the last payment. This new period may expire prior or subsequent to four years after the accident. If no claim is made for a period of two years, it is presumed that any loss after this trouble-free period is unrelated to the accident and further benefits need not be paid. On the other hand, if a loss is suffered within two years of the last payment, the new loss may be found to have been accident-related.

18 D. & C.3d at 680.

Order affirmed.

      . The trial court’s order and opinion were filed in response to a brief filed by appellee calling the court’s attention to Floczak. The court treated the brief as a motion for judgment on the pleadings.

        . The memorandum opinions of this court "are not to be considered as precedent and cannot be cited for any purpose.” Notice to the Bar, dated September 19, 1980; see 295 Pa.Super. at 531, 435 A.2d at 906.

      . We do not count our decision in McGlade. See footnote 2, supra.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    493 A.2d 713
    Bradley R. WAXMAN, Appellant, v. LORANGER PLASTICS CORPORATION.
    Superior Court of Pennsylvania.
    Argued March 19, 1985.
    Filed May 17, 1985.
    Petition for Allowance of Appeal Denied Oct. 15, 1985.

      Joseph E. Alternare, Tionesta, for appellant.
    David W. Swanson, Warren, for appellee.
    Before CIRILLO, HOFFMAN and ROSENWALD, JJ.

       Judge Edward Rosenwald of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   HOFFMAN, Judge:

The basic issue on appeal is: “[W]hat is the appropriate method of allocating, between adjoining riparian owners, property situate between the high water mark and the low water mark where the deeds contain descriptions terminating at the top of the bank, and accordingly offer no guidance whatsoever as to how such allocation should be accomplished.” (Brief for Appellant at 8). For the reasons stated herein, we affirm the order below.

The relevant facts are as follows (see Diagrams A and B for illustration): The parties own adjoining parcels of land situated along a riverfront in Warren County. Each parcel is roughly rectangular in shape and, according to their respective deeds, each is bounded on the north by Clark Street and on the south by the Allegheny River. However, the stated distances in the deeds cause the southern boundary of each parcel to terminate at or about the original location of the top of the river bank. Thus, because the respective sidelines of each parcel run at angles oblique to one another, if the sidelines were extended to the water’s edge, they would intersect within the expanse of land lying between the original top of the bank and the low water mark. This expanse of land had once been subjected to seasonal flooding with resultant changes in the river level but by 1977 had become high, dry and usable land. The common boundary line between the two parcels was created by James Clark and his wife when they conveyed their lot (now owned by defendant-appellee) to M. Beecher in 1885. Beecher, in turn, conveyed the lot to defendant-appellee in 1976. Plaintiff-appellant claims title to two adjoining parcels of land, namely, the “Carlson” and “Bacon” lots, which he acquired from James L. Sturdevant and his wife in 1979. These lots had been created in 1905 and 1903, respectively, as part of a subdivision by the Helping Hand Building and Loan Association. Helping Hand had received its title by sheriff’s deed from William Kline and his wife in 1896.

In 1977, defendant-appellee constructed a building which extended beyond the southern boundary of the original deed description of its parcel and onto the disputed area lying between the original top of the bank and the water’s edge. Consequently, plaintiff-appellant filed an action in ejectment with a demand for damages against defendant-appellee, alleging that this building encroached upon his land. On September 9, 1982, the lower court entered an Opinion and Decree Nisi granting ejectment relief to plaintiff-appellant. Upon defendant-appellee’s filing exceptions, the court took testimony on August 8, 1983, and granted the exception concerning the proper rule of shoreline apportionment. Plaintiff-appellant then filed a supplemental brief in opposition to the exceptions. On September 15, 1983, the lower court entered an order (1) granting defendant-appellee’s exceptions to the September 9, 1982 Decree Nisi, (2) dividing the disputed land between the parties in accordance with defendant-appellee’s Exhibit A-13, see Diagram A, and (3) entering Final Decree in favor of defendant-appellee. This appeal followed.

The parties each espouse a different rule of shoreline apportionment. Under appellant’s rule, appellee’s building would be an encroachment upon appellant’s land thereby entitling appellant to ejectment relief; but under appellee’s rule, the building would properly be situated on appellee’s land. See Lakeside Park Co. v. Forsmark, 396 Pa. 389, 395, 153 A.2d 486, 489 (1959) (patentee of land bordering river takes to middle of nonnavigable river and to low water mark of navigable river).

Appellant contends that the lower court erred in failing to apply the rule of shoreline apportionment set forth in Wood v. Appal, 63 Pa. 210 (1869), as follows:

The serpentine course of the stream, or its relative distances from the bank at different points, can make no serious difference as to the line of approach to the water’s edge. Starting from the bank, a direct course to the stream, or at right angles to the stream, must always afford the shortest and most certain boundary of river frontage. Of course the rule as now laid down applies only to a case where no other intention is disclosed by the return of survey, or the deed.

Id. at 225 (emphasis added). Appellant therefore argues that, where as here, the sidelines of the competing parcels converge drastically so as to come to an apex before the water’s edge, allocation must be had by lines running from the top of the bank on a direct and perpendicular course to the thread of the stream. See Diagram B.

Appellee, however, argues that the lower court properly applied the proportional shoreline method in dividing the disputed river frontage according to appellee’s Exhibit A-13. Under this method, adjoining landowners would receive river frontage on the new water’s edge (low water mark) proportional to their frontage on the original top of the bank (high water mark). See Diagram A. Appellee distinguishes Wood v. Appal, supra, on the ground that, in that case, the high water mark and low water mark were roughly parallel and therefore a line drawn perpendicular to the stream awarded the parties equal frontage on both the old and new banks. Here, however, the width between the high water mark and low water mark narrows and then widens as the river bends; therefore, a perpendicular line division would not yield proportional frontage on the old and new banks, but, instead, would create an inequitable, random apportionment along the shoreline, e.g., appellee’s access to the river may be completely, cut off whereas a large triangular portion of the frontage upstream from the parties’ parcels may be left unapportioned.

After careful consideration of these competing claims, we find appellee’s arguments more persuasive and therefore conclude that the proportional shoreline method applied by the lower court is the most equitable and reasonable resolution of the dispute. We also find Wood v. Appal, supra, distinguishable for two reasons. First, subsequent to that case, our Supreme Court emphasized that the “rule” set forth therein should be limited to the facts of that case and that each particular case must be decided with regard to its own circumstances, rather than following any inflexible rule of law. Kreiter v. Bigler, 101 Pa. 94, 101 (1882). Additionally, we agree with appellee that, where the low water mark and high water mark are not parallel along the shoreline, applying the “right-angle” method of apportionment would produce absurd divisions of river frontage. Our position is further supported by modern precedent:

[I]n apportioning and dividing the bed of a river or the riparian rights areas in the river, as between two or more riparian tracts fronting on the same bank, in the absence of an agreement, specification, or statute, or other definitely controlling factor, the court should apportion and divide the area equitably in such a way that each of the riparian tracts will be assigned an extended frontage in the river based on and generally proportionate to the length of such tract’s frontage along the riverbank or shore. For the most part the authorities are in agreement that in the apportionment of appurtenant areas of the river from the shore out to or toward the thread, it is the extent of the individual riparian tract’s frontage on the riverbank or shore which controls the apportionment of the area in the river, rather than such riparian tract’s depth, area, or configuration, or the direction in which its upland sidelines run.
* Hi is jjt sit *
[I]t has frequently been recognized by judicial authorities that the specific rules stated or applied are not unbending but are subject to modification to insure an equitable apportionment and division of the area in the particular situation required to be adjudicated.
* * Hi * H* *
Particularly in connection with the apportionment and division of the appurtenant portion of the river as between riparian tracts fronting on the same bank, where such bank or shore is reasonably straight rather than much curved or irregular, some of the courts have developed, adopted, or applied one or the other of several right-angle or perpendicular projection methods for locating the side divisional lines from the shore out to the terminal line in the river; the only common feature of the several methods being that the direction along which the upland division lines run down to the shore is disregarded and the side lines from the shore out into the water are projected in a direction which is perpendicular to some specific base line....
Where the shore is curving or irregular in front of the riparian tracts involved, or the line of the channel, thread of the stream, or other outer limit line in the river is irregular, curving, or, if straight, not parallel with the general course of the shore, the method of apportionment and division usually adopted is to give each of the riparian tracts fronting along the same shore an abutting area in the river having a width on the channel line or other outer boundary line in the river proportionate to such tract’s frontage along the shore, the objective being to achieve an equitable appor tionment of the available river area as between the riparian tracts fronting thereon.

78 Am.Jur.2d Waters §§ 396-97 (1975) (citations in footnotes omitted) (emphasis added).

Therefore, having viewed the record and, in particular, the various survey diagrams illustrating the different methods of shoreline apportionment, we hold that the lower court correctly applied the proportional shoreline method of allocating river frontage so as to give the parties the same amount of frontagé along the water’s edge as they are strictly entitled to by deed along the original top of the bank. Accordingly, we affirm.

Affirmed.


author: PER CURIAM:

text:
    493 A.2d 719
    COMMONWEALTH of Pennsylvania v. Gary Thomas FISHER, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 4, 1985.
    Filed May 17, 1985.

      John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
    Melinda G. Tell, Assistant District Attorney, Pittsburgh, for Cora., appellee.
    Before OLZEWSKI, HESTER and SHIOMOS, JJ.

       Judge Thomas N. Shiomos, Senior Judge of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   PER CURIAM:

This is an appeal from a judgment of sentence entered June 22, 1983 in Allegheny County. Appellant, Gary Thomas Fisher, was convicted of voluntary manslaughter and sentenced to imprisonment for not less than five nor more than ten years. Sentence followed a jury trial and the denial of post-trial motions.

On Saturday, May 15, 1982, several young adults and adolescents held a beer party in the Allentown district of the city of Pittsburgh. The primary party-goers were 18-year-old Dale Jays, 13-year-old Jennifer Metrovich, 13-year-old John Leasa and 18-year-old Allan Kelly, the victim. Others attended.

Metrovich was appellant’s girlfriend, and appellant was a friend of Jays, Leasa and the victim. The party, which was held on a wooded hillside near Starch and Excelsior Streets, began at 6:00 P.M. At 4:00 A.M., when only Metrovich and the victim remained, appellant arrived. He was not present earlier as he attended a bachelor’s party.

Apparently upset by the exchange of affection between Metrovich and Kelly, appellant berated Metrovich for “messing” with his friends and called her a “little whore.” At that moment, Kelly tackled appellant and a fight began. During most of the struggle, Kelly was on top of appellant, striking appellant’s face and chest with his fists. Appellant pleaded with Kelly to stop. Appellant freed himself momentarily, but Kelly tackled him again and resumed striking him.

Appellant removed an eight-inch buck knife from a sheath attached to his belt and stabbed Kelly twice in the chest; one wound penetrated Kelly’s heart. Appellant then broke away and ran to his home. He returned with his sister and joined Dale Jays in carrying Kelly from the wooded area to Excelsior Street.

When they placed Kelly on the pavement, appellant yelled, “Let me finish him off.” Jays thwarted appellant’s attempt to reach Kelly, and appellant warned Jays that, “I will stab your ass too.” Appellant also threatened to “finish off” the entire neighborhood. He was eventually restrained by his mother and sister.

Shortly thereafter, the police and paramedics arrived. Kelly was taken to Mercy Hospital where he died that morning from cardiac arrest. Appellant was arrested and charged with criminal homicide.

It is appellant’s first contention that the lower court improperly charged the jury on the crime of voluntary manslaughter. Appellant objects to the charge on several grounds. First, he complains that the court ignored statutory language by reading from the Pennsylvania Suggested Jury Instructions. By doing so, the court failed to instruct the jury on the Commonwealth’s alleged burden to prove passion and provocation as elements of voluntary manslaughter.

We note that the lower court did indeed read the statutory language for the jury. It read the statutory definitions of criminal homicide, 18 Pa. C.S.A. § 2501, and voluntary manslaughter, 18 Pa. C.S.A. § 2503. (N.T., January 17, 1983, p. 602).

On the matter of passion and provocation, the court charged the jury as follows:

As indicated by the section 2501 that I read to you, homicide consists of murder, and murder is broken down into murder in the first degree, murder in the second degree and murder in the third degree.
And homicide also consists of voluntary manslaughter and involuntary manslaughter.
And those crimes are graded by their degree of Severity-
Voluntary manslaughter appears in this scheme as a mitigated form of homicide. To find a person guilty of murder, the Commonwealth must prove that there has been an intentional killing, and they must prove also that the killing has been with malice.
Now, voluntary manslaughter is an intentional killing but without malice. And the element of the crime as it stands in the statute, as to killing upon provocation, and under intense passion, is there for the purpose of mitigating the crime of murder to one of voluntary manslaughter, because a killing under provocation and with intense passion is a killing without malice.
So, voluntary manslaughter we see is a mitigated form of murder.
Now, when voluntary manslaughter is charged alone, such as in this case, the Commonwealth need show only, one, an intentional killing by the defendant. It need not prove provocation and passion.
The fact that the killing was provoked and committed during a period of intense passion is not a defense to voluntary manslaughter.

(N.T., January 17, 1983, p. 603-604).

It is true that the court instructed the jury that if they find that appellant killed without justification, then they must return a verdict of guilty on voluntary manslaughter. The court omitted an instruction on malice and provocation or passion because murder was not charged, and it considered the absence of malice a mitigating factor and not a defense.

Voluntary manslaughter occurs where there is a specific intent to kill, but said intent contains no malice by reason of passion or provocation. Commonwealth v. Pitts, 486 Pa. 212, 404 A.2d 1305 (1979); Commonwealth v. Long, 460 Pa. 461, 333 A.2d 865 (1975). Passion or provocation precludes malice, but has no effect on intent. Either passion or provocation explains why a crime is not murder, but neither is a necessary element of voluntary manslaughter.

We hold, therefore, that where the Commonwealth does not charge murder, but charges voluntary manslaughter alone, thereby conceding that malice does not exist, it is not necessary to charge the jury on passion or provocation. In these cases, it is sufficient to charge the jury that voluntary manslaughter occurs where there is a killing intended by the defendant without justification.

Appellant also complains that the charge was improper because it alluded to degrees of murder and erroneously defined voluntary manslaughter as first degree murder without malice. According to appellant, this confused the jury and prejudiced his case as he was prepared to discuss only the elements of voluntary manslaughter.

It is the court’s duty to charge the jury in clear, commonplace language, without altering applicable legal principles. It is not mandatory that the court read verbatim the statutory definition of a crime, providing the statutory elements are not omitted, diluted or misconstrued through translation. See Commonwealth v. McComb, 462 Pa. 504, 341 A.2d 496 (1975). Furthermore, it is proper to define a criminal offense through comparison to related, yet irrelevant offenses. It is the general effect of the charge that determines its propriety. Commonwealth v. Rodgers, 459 Pa. 129, 327 A.2d 118 (1974).

Accordingly, it was not error to instruct the jury on the degrees of murder. To draw a comparison to murder clarifies the classes of homicide and places voluntary manslaughter in a clearer light.

We do not believe that allusions to murder hinderéd appellant’s case. Evidence was submitted on voluntary manslaughter, and the jury was well aware that it could return a verdict of guilty on voluntary manslaughter only; it could not return a verdict on murder as murder was not charged and there was no evidence of malice. Appellant prepared his case on voluntary manslaughter, the Commonwealth presented its case on that charge alone and the court charged accordingly.

Also, with respect to the charge, appellant argues that the court failed to instruct the jury on the Commonwealth’s burden to prove each element of voluntary manslaughter beyond a reasonable doubt. At the beginning of the charge, the court said, “it is the Commonwealth that always has the burden of proving each and every element of the crime charged and that the defendant is guilty of that crime beyond a reasonable doubt.” (N.T., January 17, 1983, p. 598). It proceeded to define voluntary manslaughter as “an intentional killing but without malice”, (N.T., January 17, 1983, pp. 603-604), and set forth the Commonwealth’s burden of proving that Allan Kelly was dead, that appellant killed him and that the killing was specifically intended without lawful justification. (Id. at 639). These instructions adequately explained the Commonwealth’s burden of proving each element of the crime.

Appellant’s final contention concerning the charge is that the court erred in instructing the jury that there is no justification if the jury is satisfied beyond a reasonable doubt that appellant did not reasonably believe that the use of deadly force was necessary. According to appellant, whether he reasonably believed that he killed Kelly to prevent serious bodily injury to himself is purely a subjective test. Appellant complains that the charge did not make this clear.

We agree with appellant that his belief in serious bodily injury must be reasonable in light of the facts as they appeared to him. See Commonwealth v. Light, 458 Pa. 328, 326 A.2d 288 (1974). That does not mean, however, that appellant himself determines what is a reasonable belief. There must be some standard by which his belief is measured. There was testimony concerning Kelly’s actions while he struck appellant, and appellant did not present evidence to the contrary. The jury, then, was aware of how Kelly’s actions appeared to appellant, and it was the jury’s determination alone whether appellant’s belief of serious bodily injury was reasonable. This latter portion of the test is not subjective; rather, it is objective. See Commonwealth v. Palmer, 467 Pa. 476, 359 A.2d 375 (1976).

Next, appellant argues that it was error to deny a charge on the decedent’s prior acts of violence where self-defei se was in issue. Appellant maintains that Kelly’s prior violent acts were relevant for determining whether appellant reasonably believed he was facing imminent death or serious bodily injury. See Commonwealth v. Beck, 485 Pa. 475, 402 A.2d 1371 (1979).

Whether the court erred in denying this charge has been waived. Prior to the charge, appellant’s counsel orally requested a charge on two prior incidents when Kelly and appellant fought. Kelly was the apparent victor on both occasions, and, as a result, appellant expressed his fear of him to friends. The court denied the charge because of its late submission. Following the charge, when the Court asked for objections and additions, counsel did not object to the court’s refusal to charge on the decedent’s prior acts of violence.

Pennsylvania Rule of Criminal Procedure 1119(b) states that no charge nor omission can be ruled erroneous unless objections are made prior to jury deliberation. In Commonwealth v. Rineer, 310 Pa.Super. 241, 456 A.2d 591 (1983), this court held “that in order to preserve an issue regarding the charge to the jury, a specific objection must be made pursuant to Pa.R. Crim.P. 1119(b), even where jury instructions have been timely offered and refused.” Id., 310 Pa.Superior Ct. at 249, 456 A.2d at 595. Submitting a jury instruction and following with an objection should the instruction be denied or misstated assures a fair opportunity to avoid error. Commonwealth v. Martinez, 475 Pa. 331, 380 A.2d 747 (1977). Appellant failed to object prior to jury deliberation; therefore, he waived his argument which assigns error to the court’s refusal to charge on the victim’s prior acts of violence.

Next, appellant contends that counsel was ineffective for failing to present a timely request for an instruction on the victim’s prior acts of violence.

Because we believe that evidence of Kelly’s prior two acts of violence perpetrated on appellant was admissible for the purpose of determining whether appellant reasonably believed he was faced with imminent death or serious bodily injury, a jury charge pertaining thereto was appropriate. Insofar as counsel’s request for such a charge was denied as untimely, we are constrained to hold that he was ineffective for failing to submit recommendations for charge in compliance with Pa. R. Crim. P. 1119(a).

In Commonwealth v. Beck, supra, the defendant alleged that he stabbed the victim in self-defense. It was held on appeal that he was permitted to introduce evidence that the victim was previously convicted of assaulting a police officer and had attacked two other individuals. It did not matter to the Beck court that the victim’s aggressive actions were less serious than the defendant’s act of assaulting with a deadly weapon. Accordingly, the Beck court stated:

When the (victim’s) prior conviction is for assault and battery, there is no need to compare the facts. Any difference is irrelevant. A conviction for assault and battery necessarily implies a character involving aggressive propensities.

485 Pa. at 478-479, 402 A.2d at 1373.

In Commonwealth v. Stewart, 483 Pa. 176, 394 A.2d 968 (1978), a single violent act by the victim of drawing a gun during a gambling dispute in a pool hall, one month prior to the defendant’s shooting the victim, was admissible as evidence of self-defense. Such evidence furnishes a basis for the defendant to believe that his life was in danger.

Since evidence of Kelly’s prior fights with the decedent was admissible, a charge instructing the jury of the relevance of those prior acts on the defense of justification was appropriate. The denial of such a charge was not court error; instead, it was the result of an inadequate request for charge.

Appellant’s counsel did not comply with Pa. R. Crim. P. 1119(a). Rule 1119(a) requires requests for jury instructions to “be submitted within a reasonable time before closing arguments.” Counsel submitted his requests a few minutes prior to closing argument, and they were denied for late submission. Moreover, the rule intimates that the better practice is to submit jury instruction requests in writing with copies served on the other party. Counsel failed to submit written requests.

Since evidence of the victim’s prior acts was critical to appellant’s self-defense, appellant’s claim that he was prejudiced by the absence of a charge on that evidence has merit. Secondly, counsel’s failure to timely request an appropriate charge has no reasonable basis. Therefore, the two-prong test of ineffectiveness has been met. Commonwealth v. Brinkley, 505 Pa. 442, 480 A.2d 980 (1984); Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984); Commonwealth v. Garrity, 331 Pa.Super. 475, 480 A.2d 1133 (1984).

Moreover, the absence of the charge did not constitute harmless error, as the jury did not know that the decedent’s prior violent acts could serve as a basis for appellant’s belief that serious bodily injury was imminent. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Commonwealth v. Garvin, 335 Pa.Super. 560, 485 A.2d 36 (1984).

Due to counsel’s ineffectiveness, we are compelled to reverse and remand for new trial. This disposition renders it unnecessary to address appellant’s remaining assertions of ineffectiveness and his arguments that the court erred in admitting certain statements made by him at the scene and in police custody and in imposing an excessive sentence. We do note, however, that these remaining arguments are meritless.

Judgment of sentence reversed. Remanded for new trial.

      . Appellant was 17 years old at the time of the incident and trial. His case was transferred from juvenile court to the criminal division in order to accommodate his request for a jury trial.

      . In his statement to the police, appellant said that Kelly was striking his head with a brick. Leasa testified that Kelly had nothing in his hand throughout the fight, and Metrovich testified that it was too dark to see. A medical examination of appellant disclosed superficial head bruises.


text:
    493 A.2d 724
    Betty Ann POWELL, Executrix of the Estate of John D. Powell, Deceased, Appellants, v. JOHNS-MANVILLE CORPORATION, Pittsburgh Corning Corporation, Owens-Corning Fiberglas, Eagle Picher Industries, Inc., Forty-Eight Insulations, and Keene Corporation v. OWENS-ILLINOIS, INC., Unarco Industries, Inc. and Celotex Corporation.
    Superior Court of Pennsylvania.
    Argued Oct. 24, 1984.
    Filed May 24, 1985.

      William R. Caroselli, Pittsburgh, for appellants.
    Charles Kirshner, Pittsburgh, for appellee.
    Before SPAETH, President Judge, and BROSKY and OLSZEWSKI, JJ.
   SPAETH, President Judge:

This appeal is from orders granting motions for summary judgment in actions under the Wrongful Death Act, 42 Pa.C.S. § 8301, and Survival Act, id. § 8302. Appellant alleges in her complaint that her husband’s death was caused by exposure to asbestos products manufactured by appellees. The trial court filed two separate opinions, one disposing of the survival action and the second disposing of the wrongful death action. The opinions rest upon the assumption that to maintain an action under either statute, the decedent had to know that exposure to asbestos was the cause of his injuries. This assumption is mistaken. We therefore reverse and remand for trial.

The decedent was employed by Pennsylvania Industrial Chemical Corporation and Hercules Corporation from 1956 until January 1978, when he was diagnosed as having cancer of the colon. On July 6, 1978, he died. At the funeral home, one of the decedent’s cousins, a physician, suggested to appellant that she look into whether her husband’s death had been caused by exposure to asbestos. Appellant filed her complaint on July 3, 1980.

Appellees argue, and the trial court held, that since the decedent did not know that there was a causal relationship between his cancer and his exposure to asbestos, no cause of action accrued during his lifetime, and, therefore, no cause of action existed, either to survive his death, or to form the basis of a wrongful death claim. We may dispose of this argument summarily. The very same argument was made, on identical facts — wrongful death and survival actions, when at the time of his death the decedent did not know the cause of injury — in Redecker v. Johns-Manville Products Corp., 571 F.Supp. 1160 (W.D.Pa.1983). The District Court rejected the argument, and refused to enter summary judgment. In doing so, it correctly applied Pennsylvania law. The defendants in the District Court relied heavily on the reasoning of the trial court in this case. However, as the District Court observed, to accept that reasoning would “preclude suit for recovery in those cases where the victim dies instantly or before regaining consciousness as a result of the tortious conduct of another.” 571 F.Supp. at 1167. We have nothing to add to the District Court’s demonstration that such a result would be unwarranted, and contrary to law.

We think it appropriate, however, to comment on one aspect of the decision in Redecker, and of our decision here, lest it appear that there is a conflict in the cases on when the statute of limitations commences.

In Redecker, the District Court predicted, on the basis of the Supreme Court’s decision in Anthony v. Koppers Co., Inc., 496 Pa. 119, 436 A.2d 181 (1981), that the Supreme Court would rule that the statute of limitations commences “when the victim had, or reasonably should have had, the knowledge set forth by the Superior Court in Anthony [v. Koppers Co., Inc., 284 Pa.Super. 81, 96-97], 425 A.2d [428] at 436 [1981], but commences at the latest on the death of the victim, so that all actions must be brought within two years of that date at the latest.” 571 F.Supp. at 1168 (emphasis added). We agree that this statement reflects a correct understanding of the Supreme Court’s opinion in Anthony. In Pastierik v. Duquesne Light Company, 341 Pa.Super. 329, 491 A.2d 841 (1985), we held that wrongful death and survival actions may be commenced more than two years from the date of death. However, Pastierik rested upon the interpretation of a different statute of limitations than those that were controlling in Anthony. In Anthony the suits had been commenced more than two years after death. The statute of limitations applicable to wrongful death actions provided: “[Tjhe action shall be brought within one year after death, and not thereafter.” 12 P.S. § 1603. The statute applicable to survival actions provided:

Every suit hereafter brought to recover damages for injury wrongfully done to the person, in case where the injury does not result in death, must be brought within two years from the time when the injury was done and not afterwards; in cases where the injury does result in death the limitation of action shall remain as now established by law.
12 P.S. § 34.

See Gravinese v. Johns-Manville Corp., 324 Pa.Super. 432, 471 A.2d 1233 (1984). In contrast, the statute of limitations now in effect, and applicable to the survival and wrongful death claims in Pastierik, Redecker, and here, provides that suit must be commenced within two years “from the time the cause of action accrued.” 42 Pa.C.S. § 5524(2). See id. § 5502(a). Thus, in Pastierik we held that the appellant’s claims were not barred, though raised more than two years from death, if she could prove that she was unable, despite the exercise of reasonable diligence, to know of her decedent’s injury or its cause.

Appellees argue that the Supreme Court’s opinion in Pocono International Raceway v. Pocono Produce, Inc., 503 Pa. 80, 468 A.2d 468 (1983), filed after Redecker, undermines the analysis in Redecker. We find no merit in this argument. In Pocono, the owners of a raceway sued for damages alleged to have been caused when a truck owned by Pocono Produce ran into an arched steel tunnel on the raceway’s premises. Some two months after the collision, the raceway was closed and the tunnel sealed for six months. The raceway commenced suit against Pocono Produce about two weeks after the two-year statute of limitations had run, unless the discovery rule exception to the statute applied. In the course of its opinion the Court stated that “[t]he 'discovery rule’ ... arises from the inability of the injured, despite the exercise of due diligence, to know of the injury or its cause.” 503 Pa. 80, 468 A.2d at 471 (emphasis in original). Appellees, relying on this statement, argue that here the decedent’s cause of action accrued, and the statute of limitations began to run, when cancer was diagnosed in January 1978. However, the decedent’s position was in no way comparable to the raceway’s. As the Court noted in Pocono, the fact that the tunnel had been closed for six months “[did] not alter the ascertainability of the damage. This is not the sort of blameless ignorance which compels the application of the discovery rule ...” 503 Pa. at 86, 468 A.2d at 471. The raceway had the “ability to ascertain the cause of action and to institute the suit within the applicable period of limitations.” Id., 503 Pa. at 86, 468 A.2d at 471-72. All the raceway had to do was look at the tunnel after the collision to see what damage had been done. The decedent suffered no collision. Instead, it is alleged — and on motion for summary judgment the allegation must be taken as true — that the decedent suffered from a “creeping disease,” the essence of which is that “[i]t is difficult to determine at what point the exposure caused the disease, and after the disease has been contracted, to discover its cause.” Anthony v. Koppers Co., Inc., 284 Pa.Super. 81, 93, 425 A.2d 428, 434 (1980), rev’d on other grounds, 496 Pa. 119, 436 A.2d 181 (1981). So far as appears now, the decedent despite reasonable diligence did not know the cause of his injury before his death. It follows that for purposes of deciding the motions for summary judgment, the statute of limitations had not run during his lifetime, from which it further follows that his survivors and representatives were entitled to sue for his injuries and those suffered by his family until the expiration of a period of two years from “the time the cause of action accrued.” 42 Pa.C.S. §§ 5524(2); see 5502(a).

Order reversed.

      . We do disagree with the District Court’s observation that the Supreme Court’s opinion in Anthony v. Koppers Co., Inc., 496 Pa. 119, 436 A.2d 181 (1981), is without precedential value because it expressed the view of only three of the seven Justices, with two Justices concurring in the result. Redecker v. Johns-Manville Products Corp., 571 F.Supp. 1160, 1168 (W.D.Pa.1983). See Gravinese v. Johns-Manville Corp., 324 Pa.Super. 432, 438, 471 A.2d 1233, 1236-37 (1984).

      . In Anthony v. Koppers Co., Inc., supra, 284 Pa.Superior Ct. at 96, 425 A.2d at 436, this court had cited Volpe v. Johns-Manville Corp., 4 Phila. Reporter 290, 295-96 (1980), for its statement of the discovery rule that the statute of limitations does not begin to run until the plaintiff has: “(1) knowledge of the injury; (2) knowledge of the operative cause of the injury; and (3) knowledge of the causative relationship between the injury and the operative conduct.” (Emphasis in original). The Volpe test was modified in Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 136, 471 A.2d 493, 500 (1984) (plaintiff must know that his injury has been caused by another party’s conduct).

      . Section 2 of the Act of April 26, 1855, P.L. 309, repealed by Section 2(a) [310] of the Judiciary Act Repealer Act, Act of April 28, 1978, P.L. 202 effective June 27, 1978.

      . Section 2 of the Act of June 24, 1895, P.L. 236, repealed by Section 2(a) [807] of the Judiciary Act Repealer Act, Act of April 28, 1978, P.L. 202, effective June 27, 1978.

      . Appellees state in their brief that ''[t]his Court has consistently ruled, ... that the 'discovery rule’ does not apply to wrongful death and survival actions.” Brief for Appellees at 4. The cases cited for this proposition are inapposite. Staiano v. Johns-Manville Corp., 304 Pa. Super. 280, 450 A.2d 681 (1982), was not a wrongful death or survival action. Gravinese v. Johns-Manville Corp., 324 Pa.Super. 432, 471 A.2d 1233 (1984), and McNair v. Welkers, 300 Pa.Super. 397, 446 A.2d 905 (1982), were wrongful death and survival actions, but in McNair, the action was commenced five years after death, and in Gravinese, more than seven years after death. In both cases the applicable statutes of limitations were the same as those applicable in Anthony v. Koppers Co., Inc., supra. See notes 3 & 4 supra. Here, insofar as the pleadings and depositions disclose, the action was commenced within two years of the time the cause of action accrued. 42 Pa.C.S. § 5524(2); Pastierik v. Duquesne Power and Light Co., supra.


text:
    493 A.2d 728
    Charles CERRATO, Appellant, v. HOLY REDEEMER HOSPITAL.
    Superior Court of Pennsylvania.
    Argued March 12, 1985.
    Filed May 24, 1985.

      Francine D. Wilensky, Philadelphia, for appellant.
    Charles W. Craven, Philadelphia, for appellee.
    Before SPAETH, President Judge, JOHNSON and SHOYER , JJ.

       Judge SHOYER, Senior Judge of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   SPAETH, President Judge:

This is an appeal from an order granting summary judgment. Appellant argues that the trial court erred in finding his action in tort barred by the No-Fault Act, 40 Pa.S. § 1009.301(a). We agree and accordingly reverse and remand for trial.

On July 30, 1981, at 8:15 a.m., appellant, a delivery man for a soft drink company, drove his truck into appellee’s parking lot to make a delivery. He parked at appellee’s loading dock, got out of the cab of the truck and went to the rear of the truck to unload it. To unload, he had to step up onto the truck. As he stepped down with some cases of soda in his hands, he put his right foot into a hole or crack, fell, and was hurt. R. at 1, ¶ 5-8. This action arises on appellant’s complaint in trespass alleging that appellee’s negligence caused his injury. Id. at ¶ 12. Appellee filed a Motion for Summary Judgment, arguing that appellant’s recovery in tort is barred by the No-Fault Act, 40 P.S. § 1009.301(a), in that his injury occurred while he was “alighting from ... his vehicle____” R. at 9, if 5. The trial court accepted this argument and granted the motion.

Section 201(a) of the No-Fault Act, 40 Pa.S. § 1009.201(a), provides in part:

If the accident resulting in injury occurs in this Commonwealth, any victim or any survivor of a deceased victim is entitled to receive basic loss benefits in accordance with the provision of this act.

Section 301(a) of the Act, 40 Pa.S. § 1009.301(a), provides in part:

Tort liability is abolished with respect to any injury that takes place in this State in accordance with the provisions of this act if such injury arises out of the maintenance or use of a motor vehicle,____

The Act defines “victim” as “an individual who suffers injury arising out of the maintenance or use of a motor vehicle[,]” and “maintenance or use of a motor vehicle” as:

... maintenance or use of a motor vehicle as a vehicle, including, incident to its maintenance or use as a vehicle, occupying, entering into, or alighting from it. Maintenance or use of a motor vehicle does not include:
(B) conduct in the course of loading or unloading a motor vehicle unless the conduct occurs while occupying, entering into, or alighting from it.
40 Pa.S. § 1009.103.

The trial court held that as appellant had to step down from the rear of his truck to unload the cases of soda, he was “alighting from” a “motor vehicle” when he was injured, and that he was therefore a “victim” whose “injury [arose] out of the maintenance or use of a motor vehicle.” Slip op. of tr. ct. at 2-3.

By this reasoning, a person unloading a motor vehicle would “alight[] from” it not once, but as many times as might be necessary to complete the task. We do not believe this construction of the No-Fault Act is warranted.

We must construe a statute so as to give effect to all its provisions. See 1 Pa.C.S. § 1921(a). See also Fireman’s Fund Insurance Co. v. Nationwide Mutual Insurance Co., 317 Pa.Super. 497, 464 A.2d 431 (1983) (court interpreting statute must effectuate legislative purpose and if at all possible give effect to each provision of statute); Crusco v. Insurance Company of North America, 292 Pa.Super. 293, 437 A.2d 52 (1981) (in construing statute, court must assume legislature intended that every word would be given effect). Here, the language of the No-Fault Act manifests at least two legislative purposes. First, the Act defines the extent of an insured’s coverage in terms of the period during which he is in physical contact with a motor vehicle, that is, his entrance into, occupation of, and exit from it. The legislature has thus mandated that insurance coverage extend to an act — the “maintenance or use of a motor vehicle” — that has a beginning, a middle, and an end. The legislature has also mandated, however, that insurance coverage not extend to a separate act, that of “loading or unloading a motor vehicle.” In the present case, appellant admits that to accomplish the task of unloading his truck, he stepped down from its rear. R. at 1, ¶17. Accordingly, to give effect to all of the Act’s provisions, we must recognize that here there were two distinct acts: the act of “alighting from” a motor vehicle, followed by the separate act of “unloading” the vehicle. We believe that when appellant was injured, he had completed the act of “alighting from” his delivery truck, for which the No-Fault Act provides coverage, and was engaged in the act of “unloading” it, for which the Act does not provide coverage.

This construction is consistent with the purpose of the No-Fault Act, which is “to establish at reasonable cost ..., a Statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims____” 40 Pa.S. § 1009.102(b) (emphasis added). See also Dull v. Employer’s Mutual Casualty Company, 278 Pa.Super. 569, 420 A.2d 688 (1980); Hayes v. Erie Insurance Exchange, 261 Pa.Super. 171, 395 A.2d 1370 (1978). The Act “was never intended to be a general liability insurance which would cover all injuries, no matter how remotely connected with the use or maintenance of a motor vehicle, but is intended to cover motor vehicle accidents.” Camacho v. Nationwide Insurance Co., 314 Pa.Super. 21, 23-24, 460 A.2d 353, 354 (1983) aff'd 504 Pa. 351, 473 A.2d 1017 (1984). See also Monaghan v. Pennsylvania Manufacturer’s Association Insurance Co., 301 Pa.Super. 419, 424, 447 A.2d 1037, 1040 (1982) (“... No-Fault was not intended to be a panacea for all injuries that could be traced to a motor vehicle no matter how far removed from the actual operation of such vehicle.”) To distinguish between those injuries that the legislature intended be compensated exclusively by No-Fault, and those that were to be left to other remedies, we have insisted that there be a causal connection between the injury and the “maintenance and use of a motor vehicle.” See Crawford v. Allstate Insurance Co., 305 Pa.Super. 167, 451 A.2d 474 (1982) (proper test in applying maintenance and use concept of No-Fault Act to individual fact situations is whether injury is causally related to use of a motor vehicle); Schweitzer v. Aetna Life & Casualty Co., 306 Pa.Super. 300, 303, 452 A.2d 735, 737 (1982) (“... while the causal connection need not rise to the level of proximate causation, for purposes of coverage under the No-Fault Act there must be some connection, more than mere chance or happenstance, between the injuries sustained and the insured vehicle.”) Where, therefore, we have failed to find the requisite causal link, we have denied coverage. See Camacho v. Nationwide Insurance Co., supra (injury suffered when occupant of another vehicle threw explosive device into insured’s vehicle not a “motor vehicle accident,” but rather an intentional tort suffered while insured was occupying a vehicle); Schweitzer v. Aetna Life & Casualty Co., supra (injury suffered by occupant of motor vehicle who was pulled from vehicle and intentionally assaulted by third party did not “arise[ ] out of the maintenance or use of a motor vehicle”); Crusco v. Insurance Company of North America, supra, 292 Pa.Superior Ct. at 297, 437 A.2d at 53 (No-Fault coverage denied where injury suffered in accidental gas explosion in motor home parked on manufacturer’s parking lot; to find coverage would be to “ignore the statute’s mandate that the accident result from use of the vehicle as a vehicle ”) (emphasis in original); Dull v. Employer’s Mutual Casualty Co., supra (injury suffered by insured motorist while standing behind automobile and unloading boat was caused by condition of land, not use of motor vehicle, and therefore insured was not “victim” under terms of No-Fault Act.) See also Lewis v. Nationwide Insurance Company, 541 F.Supp. 951, 956 (M.D.Pa.1982) (court interprets Pennsylvania law to require “fairly close causal connection between the injury sustained and the insured vehicle, since the Act was designed to compensate victims for vehicle-caused injuries[,]” and therefore denies coverage to insured who was shot in altercation over tailgating). And see Uniform Motor Vehicle Accident Reparations Act, § 1(a)(6), Comment (interpreting the exception for “loading and unloading” to be “consistent with the philosophy of this Act, to compensate losses resulting directly from motoring accidents and to leave to other forms of insurance and compensation systems those losses which are tangential to motoring.”) Here, the requisite causal connection between appellant’s injury and the “maintenance or use of a motor vehicle” is not present. Appellant was allegedly injured because the parking lot surface onto which he stepped while unloading his delivery truck was improperly maintained. The injury was therefore caused by the condition of the land. The use of a motor vehicle as a vehicle had ended prior to the injury, and any connection between the use and the accident causing the injury was purely incidental. See Schweitzer v. Aetna Life & Casualty Co., supra; Crusco v. Insurance Co. of North America, supra; Dull v, Employer’s Mutual Casualty Co., supra.

We note that our conclusion that there was not coverage does not contravene the principle that we are to construe the Act liberally in favor of extending coverage to an insured. See, e.g. Bills v. Nationwide Mutual Insurance Co., 317 Pa.Super. 188, 463 A.2d 1148 (1983); Craw ford v. Allstate Insurance Co., supra. Here, the party-asking that we find coverage is not an insured seeking compensation for an injury, but rather a defendant in a tort action seeking to use the No-Fault Act to shield itself from tort liability.

Order reversed and case remanded for trial.

Jurisdiction is relinquished.

      . Act of July 19, 1974, P.L. 489, No. 176, § 101 et seq., 40 Pa.S. § 1009.101 et seq.

      . Appellant also argues that the trial court erred in holding, impliedly, that the "No-Fault Motor Vehicle Act abolishes the tort liability of uninsured persons who are not motorists." Brief for Appellant at vi. Because we hold that on the facts before us the No-Fault Act does not bar appellant’s tort remedies, we do not reach the question of whether, if the Act were otherwise applicable, it nevertheless would not bar appellant’s tort remedy because the defendant hospital is an “uninsured person who [is] not [a] motorist[ ].”


author: WIEAND, Judge:

text:
    493 A.2d 731
    PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Appellant, v. Myrtle McDANIEL, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 28, 1984.
    Filed May 24, 1985.

      Max L. Spencer, Philadelphia, for appellant.
    Samuel S. Davis, Philadelphia, for appellee.
    Before WIEAND, MONTEMURO and CERCONE, JJ.
   WIEAND, Judge:

Prudential Property and Casualty Insurance Company (Prudential) commenced an action for declaratory judgment to determine the validity of an arbitration award entered against it and in favor of Myrtle McDaniel. The trial court, in response to preliminary objections filed by McDaniel, concluded that Prudential was attempting to attack the arbitration award collaterally and dismissed the action. We affirm.

Myrtle McDaniel had been a passenger in a motor vehicle operated by Doll Wilson when it was involved in a collision with an uninsured motorist on February 16, 1980. The Wilson vehicle involved in the accident had been one of three vehicles insured in a collective policy issued by Prudential. When the parties were unable to resolve the McDaniel claim amicably, McDaniel filed, on September 4, 1980, a petition to compel the appointment of an arbitrator. On March 11, 1981, the court entered an order directing Prudential to arbitrate. Prudential then appointed an arbitrator. The arbitrators heard the dispute and, on June 11, 1982, entered an award in favor of McDaniel in the amount of $45,000.00. Prudential did not move to vacate, modify or correct the award. Instead, Prudential commenced an action for declaratory judgment on September 28, 1982, more than three months after the award of arbitrators had been made. Prudential contended in its petition for declaratory judgment that the issue of stacking had been non-arbitrable and that arbitration by two of the arbitrators — Prudential’s appointed arbitrator did not participate — was invalid.

Relief by declaratory judgment is not available with respect to a “[proceeding involving an appeal from an order of a tribunal.” 42 Pa.C.S. § 7541(c)(3). Where ancillary proceedings can be utilized to resolve the issues raised in a declaratory judgment petition, the declaratory judgment action should be dismissed. See: North Canton Enterprises of Pennsylvania, Inc. v. Township of Ross, 74 Pa.Cmwlth. 479, 484, 459 A.2d 1366, 1369 (1983), cert. denied, — U.S.-, 104 S.Ct. 1283, 79 L.Ed.2d 687 (1984). If, as Prudential contends, the McDaniel claim was non-arbitrable or the arbitrators were guilty of misconduct or exceeded their powers, Prudential’s remedy was by an application to the court to vacate the award. See: 42 Pa.C.S. § 7314(a). See also: Act of April 25, 1927, P.L. 381, § 10, 5 P.S. § 170, repealed, Act of October 5, 1980, P.L. 693, § 501(c) (effective December 4, 1980). Because this procedure was available to appellant, it could not obtain review of the arbitration award by a declaratory judgment proceeding. Prudential could not ignore the procedure established by the Uniform Arbitration Act (or the Arbitration Act of 1927) and proceed to attack the award collaterally by declaratory judgment proceedings. Cf. United States ex rel. Roberts v. Commonwealth of Pennsylvania, 312 F.Supp. 1, 2 (E.D.Pa.1969). The trial court properly sustained preliminary objections to Prudential’s action.

Order affirmed.


text:
    493 A.2d 732
    Walter R. DAVISON, Appellee, v. JOHN W. HARPER, INC. and John W. Harper, Jr., Appellants.
    Superior Court of Pennsylvania.
    Argued Nov. 27, 1984.
    Filed May 24, 1985.

      Bernard M. Berman, Media, for appellants.
    Stephen S. Smith, Upper Darby, for appellee.
    Before WIEAND, MONTEMURO and CERCONE, JJ.
   WIEAND, Judge:

The Court of Common Pleas of Delaware County, relying upon a local rule of court, dismissed post-trial motions without considering the substantive merit thereof because the motions had not been accompanied by an order directing that the trial record be transcribed. On appeal, it is argued that the trial court placed an improper construction on the local rule and, if proper, the rule is in conflict with the Rules of Civil Procedure and invalid. We agree and reverse.

Walter R. Davison successfully prosecuted a civil claim for the recovery of real estate commissions in the amount of $4,770. John W. Harper, Jr. and John W. Harper, Inc., the defendants, filed timely motions for judgment n.o.v. and for new trial. Their post-trial motions, however, were not accompanied by an order for the transcribing of the testimony received at trial. This order was not presented to the court until September 1, 1983. On September 23, 1983, the trial judge sua sponte dismissed the post-trial motions without hearing. His order contained a finding that the defendants had intentionally delayed filing an order to transcribe for nearly five months. This, he held, was in violation of Delaware County Rule * 227.2. The local rule provided as follows:

All post-trial motions shall be accompanied by an order directing that the trial testimony and the court’s charge or such portion thereof as is requested be transcribed at the cost of the moving party. Where less than all the testimony and charge have been requested to be transcribed any party shall have ten (10) days after the service of the post-trial motions and proposed order for transcription in which to file objections to the proposed order. The trial judge shall rule on the objections.

It is without dispute that a local court has the right to promulgate local rules of procedure. Ricci v. Ricci, 318 Pa.Super. 445, 447, 465 A.2d 38, 39 (1983); 42 Pa.C.S. § 323. It is equally well settled that “[t]he application, construction and interpretation of a local rule of court are matters primarily to be determined by the court promulgating the local rule[,] and we will interfere only where the court commits an abuse of discretion.” Gutman v. Rissinger, 334 Pa.Super. 259, 264-265, 482 A.2d 1324, 1327 (1984), quoting Equipment Finance, Inc. v. Toth, 328 Pa.Super. 351, 355, 476 A.2d 1366, 1369 (1984). Local rules, however, must be consistent with and not in conflict with the Pennsylvania Rules of Civil Procedure. To the extent that they are not consistent with state procedural rules, local rules are invalid and cannot be followed. Gonzales v. Procaccio Brothers Trucking Co., 268 Pa.Super. 245, 249, 407 A.2d 1338, 1340 (1979) (allocatur denied October 29, 1979). See also: Sporkin v. Affinito, 326 Pa.Super. 481, 485, 474 A.2d 343, 345 (1984); Wills Equipment Co. v. Goldman Enterprises, Inc., 325 Pa.Super. 116, 120, 472 A.2d 674, 677 (1984). “A rule which arbitrarily and automatically requires the termination of an action in favor of one party and against the other based upon a non-prejudicial procedural mis-step, without regard to the substantive merits and without regard to the reason for the slip, is inconsistent with the requirement of fairness demanded by the Pennsylvania Rules of Civil Procedure.” Byard F. Brogan, Inc. v. Holmes Electric Protective Company of Philadelphia, 501 Pa. 234, 240, 460 A.2d 1093, 1096 (1983). See also: Dream Pools of Pennsylvania, Inc. v. Baehr, 326 Pa.Super. 583, 474 A.2d 1131 (1984).

The Delaware County rule mandates that all post-trial motions shall be accompanied by an order directing that the testimony and the trial court’s charge be transcribed. This rule, however, provides neither remedy nor penalty in the event that the rule is not followed. The trial court in the instant case interpreted the rule to require dismissal of a post-trial motion filed in violation of the rule. It dismissed the post-trial motions without hearing argument thereon or otherwise considering the merits thereof. We conclude that such an interpretation of the rule was an abuse of discretion. If automatic dismissal of post-trial motions was to be the penalty for violating the rule, the bar and the public were entitled to notice in the form of a specific mandate in the language of the rule. The interpretation placed on the rule by the trial court, moreover, rendered the local rule in conflict with the Pennsylvania Rules of Civil Procedure.

The decision of the Supreme Court in Byard F. Brogan, Inc. v. Holmes Electric Protective Company of Philadelphia, supra, is instructive if not precisely on. all fours. There the Supreme Court invalidated a local rule in Montgomery County which had mandated that upon late filing of briefs the court was to decide a pending motion, petition or preliminary objection against the tardy party. The Supreme Court found the local rule inconsistent with Pa.R. C.P. 126, which directs the liberal construction of rules “to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable” and permits a court to “disregard any error or defect of procedure which does not affect the substantive rights of the parties.” The Court said:

The trial of a lawsuit is not a sporting event where the substantive legal issues which precipitated the action are subordinate to the “rules of the game.” A lawsuit is a judicial process calculated to resolve legal disputes in an orderly and fair fashion. It is imperative that the fairness of the method by which the resolution is reached not be open to question.

Id. 501 Pa. at 240, 460 A.2d at 1096. See also: DeAngelis v. Newman, 501 Pa. 144, 460 A.2d 730 (1983).

In Ricci v. Ricci, supra, this Court invalidated a local rule which required the parties to file briefs within thirty days of the filing of exceptions to a decree nisi upon penalty of an automatic determination against the defaulting party. We held, in view of Brogan, that the rule was in violation of the fairness requirement of Pa.R.C.P. 126. We also found it inconsistent with former Pa.R.C.P. 1519(b), which required that exceptions be heard by the court en banc. We said that that rule did “not contemplate a local rule which requires mandatory and inflexible determinations of exceptions according to the dates of filing briefs and without regard for the merits or other considerations of equity and fairness.” Id. 318 Pa.Super. at 448, 465 A.2d at 39.

In the case sub judice, the trial court interpreted the rule to require dismissal of appellants’ post-trial motion. The court acted sua sponte. Appellee had not averred prejudice or even requested dismissal of the post-trial motions. Appellants were not afforded an opportunity to explain the delay. The record does not disclose any reason to believe that appellants’ default would in any way have deprived the trial court of a meaningful opportunity to weigh and decide the merits of appellants’ post-trial motions. See: Gutman v. Rissinger, supra, 334 Pa.Superior Ct. at 266, 482 A.2d at 1328. We conclude, therefore, that the trial court’s sua sponte, summary dismissal of appellants’ post-trial motions was improper. The local rule did not require such a result and most certainly did not give notice that such a result would follow from the late filing of an order to transcribe testimony. To the extent that the rule can be interpreted in the manner determined by the trial court, moreover, the rule is in conflict with the fairness requirements of the Rules of Civil Procedure. See: Byard F. Brogan, Inc. v. Holmes Electric Protective Company of Philadelphia, supra; Ricci v. Ricci, supra.

Our holding finds additional support in Pa.R.C.P. 239(f), which became effective July 1, 1983 and provides:

No civil action or proceeding shall be dismissed for failure to comply with a local rule other than one promulgated under Rule of Judicial Administration 1901.

This rule, of course, prevents the dismissal of actions or proceedings for failure to comply with a local rule not in conformity with Pa.RJ.A. 1901. The trial judge in this case did not dismiss the action for violation of local rule but dismissed post-trial motions. For appellants, however, their right to have the trial reviewed has now been terminated. Thus, although Pa.R.C.P. 239(f) is not directly controlling of the decision in this case, the general principles which caused its adoption have persuasive force in the instant case.

Reversed and remanded for determination of appellants’ post-trial motions. Jurisdiction is not retained.

      . Although the trial court held that the post-trial motions had been filed untimely, it is clear that this was erroneous. The verdict was returned on March 24, 1983, and post-trial motions were filed on April 4, 1983, eleven days later. The parties have stipulated, however, that the tenth day, April 3, 1983, was a Sunday. Therefore, a post-trial motion filed on Monday, April 4, 1983, was timely.

      . Pa.R.C.P. 1519, which applied to proceedings in equity, was rescinded by order of the Supreme Court on October 19, 1983, effective January 1, 1984. It was rendered superfluous by Rules 227.1 through 227.4, which were also made effective January 1, 1984 and which apply to all proceedings before the courts of this Commonwealth. Rule 227.1 governs generally the request and disposition of requests for post-trial relief. Rule 227.2 requires that all post-trial motions and other post-trial matters shall be heard and decided by the trial judge or, if he so orders, the court en banc. Rule 227.3 now requires that “[a]ll post-trial motions shall contain a request designating that portion of the record to be transcribed in order to enable the court to dispose of the motion.” It further provides that “[wjithin ten days after the filing of the motion, any other party may file an objection requesting that an additional, lesser or different portion of the record be transcribed. If no portion is indicated, the transcription of the record shall be deemed unnecessary to the disposition of the motion.” Unlike Delaware County’s rule, when no order for transcription is included, R.C.P. 227.3 deems transcription of the record unnecessary to the disposition of the motion, giving the nonmoving party an opportunity to object; it thereby gives the trial judge “ultimate authority to decide what portions of the record shall be transcribed.” See: Pa.R.C.P. 227.3, Explanatory Comment — 1983. This rule of statewide practice is inconsistent with the Delaware County rule. However, it is not controlling, for it did not become effective until January 1, 1984.


text:
    493 A.2d 736
    ACME MARKETS, INC., Appellant, v. VALLEY VIEW SHOPPING CENTER, INC. and Valley View Realty, Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 27, 1984.
    Filed May 24, 1985.

      Edward S. Wardell, Philadelphia, for appellant.
    Denis M. Dunn, Media, for appellees.
    Before WIEAND, MONTEMURO and CERCONE, JJ.
   WIEAND, Judge:

Acme Markets, Inc., a tenant of a shopping center, commenced an action in assumpsit to recover the sum of $70,-328.26 which it had paid to its landlord for maintenance of the parking lot. Acme contended that the payments had been made pursuant to a mistake of fact. The trial court held that the mistake alleged in the complaint had been a mistake of law and sustained preliminary objections in the nature of a demurrer to the complaint. Acme appealed. We affirm.

A mistake of law is a mistake “as to the legal consequences of an assumed state of facts.” Betta v. Smith, 368 Pa. 33, 36, 81 A.2d 538, 539 (1951). “A mistake of law occurs where a person is truly acquainted with the existence or nonexistence of facts, but is ignorant of, or comes to an erroneous conclusion as to, their legal effect.” 70 C.J.S. Payment § 156(c) (1951). Where, under a mistake of law, one voluntarily and without fraud or duress pays money to another with full knowledge of the facts, the money paid cannot be recovered. Ochiuto v. Prudential Insurance Co. of America, 356 Pa. 382, 384, 52 A.2d 228, 230 (1947). Thus, money paid voluntarily, although under a mistake of law as to the interpretation of a contract, cannot be recovered. William Sellers & Co. v. Clarke-Harrison, Inc., 354 Pa. 109, 113, 46 A.2d 497, 499 (1946). It has also been held that “[mjoney cannot be recovered where the payment is pursuant to a uniform practice in construing the contract year after year.” Id. And, “money, not legally due, but paid voluntarily cannot be recovered back.” Kline v. Morrison, 353 Pa. 79, 84, 44 A.2d 267, 269 (1945). Accord: Wilson v. Philadelphia School District, 328 Pa. 225, 243, 195 A. 90, 100 (1937). The rule disallowing recovery when payments have been made under a mistake of law is supported as a corollary of the criminal law maxim that one is presumed to know the law and that to hold otherwise would render legal accountability unenforceable. 70 C.J.S. Payment § 156(a) (1951). It has been suggested that to allow mistake or ignorance of the law to void actions taken by parties would subvert the effective administration of the law. Id. Where payment is made under a mistake of fact, however, recovery may be had. Gilberton Fuels, Inc. v. Philadelphia & Reading Coal & Iron Co., 342 Pa. 192, 196, 20 A.2d 217, 219 (1941); Commonwealth, Department of General Services v. Collingdale Millwork Co., 71 Pa. Cmwlth. 286, 293 n. 6, 454 A.2d 1176, 1179 n. 6 (1983).

“Preliminary objections in the nature of a demurrer admit as true all well pleaded, factual averments and all inferences fairly deducible therefrom. Conclusions of law, however, are not admitted by a demurrer. It is in this light that the complaint must be examined to determine whether it sets forth a cause of action which, if proved by the plaintiff, would entitle him to the relief he seeks. If the plaintiff does set forth a cause of action on which he is entitled to relief upon proof, the demurrer cannot be sustained. Conversely, a preliminary objection in the nature of a demurrer is properly sustained where the complaint has failed to set forth a cause of action.” Cunningham v. Prudential Property & Casualty Insurance Co., 340 Pa.Super. 130, 133, 489 A.2d 875, 877 (1985) (citations omitted).

The averments of the complaint in the instant case disclose that the store lease was executed in 1959 by Acme’s predecessor, American Stores Co., and Valley View Shopping Center, Inc. for a term of fifteen years. The lease contained options to renew for five additional terms of five years each on the same terms and conditions. The shopping center was conveyed in 1975 to Valley View Realty, the appellee. In paragraph 28A of the lease it is provided that “during the initial term” of the lease Acme must pay a proportionate share, not to exceed $1,000.00 annually, of the cost of removing ice, snow and refuse from the parking area and access roads and also the costs of lighting and painting stripes on the parking lot. In paragraph 28B, the lease also requires Acme to pay a proportionate part of real estate taxes “during the initial term.” Pursuant thereto, Acme paid costs and taxes during the initial term of the lease. After the lease had expired on December 31, 1975, Acme continued to occupy the premises and continued to pay a proportionate part of the taxes and costs of maintaining the parking area and access roads. In the present action, Acme sought to recover all such payments made after January 1, 1976. It contended that the payments had been made in the mistaken belief that they were required by the terms of the lease.

The mistake alleged by Acme is clearly a mistake of law and not a mistake of fact. The money it seeks to recover was voluntarily and deliberately paid by Acme to its lessor because of an interpretation of the lease agreement which Acme, according to the complaint, mistakenly placed thereon. Such a mistake was a mistake of law. Because the payments were made under a mistake of law in interpreting the lease, there can be no recovery in this action. See: Ochiuto v. Prudential Insurance Co. of America, supra; William Sellers & Co. v. Clarke-Harrison, Inc., supra.

Acme contends that it should have been granted leave to file an amended complaint. We agree that “if it is evident that the pleading can be cured by amendment, a court may not enter final judgment, but must give the pleader an opportunity to file an amended complaint.” Harley Davidson Motor Co., Inc. v. Hartman, 296 Pa.Super. 37, 42, 442 A.2d 284, 286 (1982), quoting Framlau Corp. v. County of Delaware, 223 Pa.Super. 272, 276, 299 A.2d 335, 337 (1972). In the instant case, however, it is clear that the deficiency in appellant’s cause of action cannot be cured by amendment. Appellant’s payment of moneys was based on its interpretation of the agreement of the lease. If this interpretation was erroneous, the mistake was one of law. Payments made pursuant to a mistake of law cannot be recovered. This cannot be changed by an amended complaint.

The order entering judgment in favor of the appellee is affirmed.

      . For purposes of reviewing the order sustaining preliminary objections in the nature of a demurrer, we have accepted, without deciding, the somewhat tenuous argument made by Acme that renewal of the lease did not include a renewal of paragraphs 28A and 28B thereof.


author: WIEAND, Judge: HESTER, Judge,

text:
    493 A.2d 738
    Allen M. ALLISON, Appellant, v. Stephen MERRIS and Patricia Merris, His Wife, Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 19, 1984.
    Filed May 24, 1985.

      E. Robert Elicker, II, Mechanicsburg, for appellant.
    John M. Eakin, District Attorney, Mechanicsburg, for appellees.
    Before WICKERSHAM, WIEAND and HESTER, JJ.
   WIEAND, Judge:

The only issue in this appeal is whether the trial court properly struck a default judgment entered by the prothonotary upon praecipe of the plaintiff after the defendants had tardily filed an answer. Because plaintiffs default judgment was entered after an answer had been filed, we hold that it was patently defective and affirm the order causing it to be stricken.

Allen M. Allison was employed by Stephen and Patricia Merris to remodel the Merris home. A dispute arose concerning Allison’s performance and Merris’ obligation to pay therefor. After Allison had recovered the sum of $1,777.67, plus costs, in an action before a district justice, Mr. & Mrs. Merris filed an appeal in the Court of Common Pleas of Cumberland County. Pursuant to notice of such appeal, Allison filed a complaint which was served on the Merris’ attorney on May 17, 1983. When an answer had not been filed by June 9, 1983, Allison caused notice to be sent to the defendants and their attorney, as required by Pa.R.C.P. 237.1, on June 9, 1983. Presumably, it was received on the following day. An answer and counterclaim were filed m June 21, 1983. On June 23, 1983, Allison filed a praeci >e for the entry of a default judgment, and the prothonotary caused judgment to be entered. Allison also filed preliminary objections in the nature of a motion to strike the answer and counterclaim on grounds that the Merris pleading had been filed late. On August 1, 1983, the court ordered the judgment stricken and dismissed Allison’s preliminary objections to the answer and counterclaim. Allison appealed.

A default judgment is properly stricken where a fatal defect appears on the face of the record. Ruehl v. Maxwell Steel Co., Inc., 327 Pa.Super. 39, 41, 474 A.2d 1162, 1163 (1984); Township of Middletown v. Fried & Gerber, Inc., 308 Pa.Super. 161, 164, 454 A.2d 71, 72 (1982). The record discloses in this case that the answer and counterclaim had been filed prior to appellant’s praecipe for entry of a judgment by default. The default judgment entered by the prothonotary, therefore, was defective on its face and was properly stricken. Gee v. Caffarella, 300 Pa.Super. 480, 482, 446 A.2d 956, 957 (1982).

Appellant argues that the answer and counterclaim should have been stricken because they were filed more than twenty days after service of the complaint and more than ten days after he had given notice as required by Pa.R.C.P. 237.1. As a general rule, however, the late filing of an answer will be ignored where the. plaintiff has not acted to take a judgment by default. This rule is based on the theory “that the plaintiff could not be prejudiced by the delay, and that his neglect to take a default judgment against the defendant operated as an extension of the period for filing the answer.” 2 Goodrich-Amram 2d § 1026:1 (1976). Thus, in Paulish v. Bakaitis, 442 Pa. 434, 275 A.2d 318 (1971), the Supreme Court said:

Pa.R.C.P. 1026 provides that a pleading shall be filed within 20 days after service of a preceding pleading. This rule is not mandatory but permissive. We have held that late pleadings may be filed “if the opposite party is not prejudiced and justice requires. Much must be left to the discretion of the lower court.” Fisher v. Hill, 368 Pa. 53, 81 A.2d 860 (1951).

Id., 442 Pa. at 441, 275 A.2d at 321-322. This practice has not been altered by the adoption of Pa.R.C.P. 237.1. On the contrary, the Committee’s Explanatory Note — 1979 suggests that “[t]he intent of the Rule is to afford a minimum of ten days after default within which the default may be cured.” (Emphasis added.)

In the instant case, the trial court did not abuse its discretion by refusing to strike the answer and counterclaim. The delay in filing the answer was brief, and the default was promptly cured. Appellant had not previously acted to take a default judgment. The trial court acted consistently with Pennsylvania practice and the purpose and intent of the Rules of Civil Procedure which hold that a default may be cured at any time before the other party acts upon the default. In this case, appellant has not even suggested that he was prejudiced in any way by the brief delay in filing appellees’ responsive pleading. It is clear, therefore, that the trial court could properly refuse to strike the answer and counterclaim.

The order striking the default judgment is affirmed.

HESTER, J., files a dissenting opinion.

HESTER, Judge,

dissenting:

I dissent. One critical procedural fact was omitted by the majority.

Appellees promptly filed motions to open and strike the default judgment. Without addressing the petition to open, the lower court struck the default judgment.

In striking the default judgment, the lower court noted that snap judgments are not favored. It further noted that the 20-day response period for the filing of pleadings is permissive and not mandatory. Finally, the court found that appellant suffered no prejudice from the filing of the answer and counterclaim one day beyond the ten-day grace period.

I agree with the lower court that the entry of snap judgments is met with disapproval by our courts. Brooks v. Surman Dental Lab, Inc., 262 Pa.Super. 369, 396 A.2d 799 (1979); Silverman v. Polis, 230 Pa.Super. 366, 326 A.2d 452 (1974). For this reason, Pa.R.C.P. No. 237.1 became effective on February 1, 1980. This rule provides for a ten-day written notice of intention to file a praecipe for entry of a default judgment. Any time during this ten-day period, which commences after the 20-day initial response period, the party upon whom the notice is served may file a responsive pleading. In this way, the entry of snap judgments is restricted.

Further protection against the entry of snap judgments is provided by equity principles underlying petitions to open and strike default judgments. For example, should the ten-day grace period go unheeded, the default judgment shall be opened should the petitioner prove that (1) his petition to open was promptly filed; (2) he had a meritorious defense to the underlying cause of action; and (3) his failure to file a pleading was excusable. Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971); Quaker Transit Co. v. Jack W. Blumenfeld and Co., 277 Pa.Super. 393, 419 A.2d 1202 (1980). Appellees filed a petition to open which included allegations of each of these three elements. Nevertheless, the lower court did not address appellees’ petition to open; instead, its holding resulted solely from a review of the motion to strike.

A motion to strike, another mechanism which limits the entry of snap judgments, shall be granted where there is an irregularity on the face of the record. Johnson v. Moore Motors, Inc., 285 Pa.Super. 237, 427 A.2d 200 (1981); Advance Building Services Co. v. F. & M. Schaefer Brewing Co., 252 Pa.Super. 579, 384 A.2d 931 (1978). In their petition to strike the judgment, appellees alleged that the judgment was improperly entered due to the fact that they filed their answer and counterclaim prior to the filing of the praecipe for entry of default judgment.

The lower court erred in striking the default judgment on grounds that appellant suffered no prejudice. Its further observation that snap judgments are not favored by the law is similarly not adequate grounds for striking a judgment. I disagree with the majority and with this court’s opinion in Gee v. Caffarella, 300 Pa.Super. 480, 446 A.2d 956 (1982), that the entry of a default judgment, where an answer precedes the praecipe for entry of default judgment, is an error on the face of the record. Therefore, the court did not strike the judgment due to fatal errors on the face of the record. For that matter, appellees’ motion to strike does not include any allegations of errors on the face of the record.

I would reverse the lower court for its improper disposition of the motion to strike. However, I would remand for further proceedings on the petition to open. Appellees’ petition to open contained allegations, which if proven, would be sufficient to open the default judgment. Since the lower court failed to address the petition to open, I would remand.


text:
    493 A.2d 741
    MILLER ORAL SURGERY, INC. v. Donald D. DINELLO, D.M.D., C. Richard Miller, D.D.S., Wesley Sabocheck, D.M.D., and Donald D. Dinello, D.M.D., P.C. Appeal of Donald D. DINELLO, D.M.D., Wesley Sabocheck, D.M.D., and Donald D. Dinello, D.M.D., P.C.
    Superior Court of Pennsylvania.
    Argued Sept. 20, 1984.
    Filed May 24, 1985.

      Joseph J. Malatesta, Jr., Harrisburg, for appellants.
    Charles W. Rubendall, II, Harrisburg, for appellee.
    Before WICKERSHAM, WIEAND and HESTER, JJ.
   WIEAND, Judge:

Miller Oral Surgery, Inc. commenced an action for damages ágainst Donald D. Dinello, D.M.D., C. Richard Miller, D.D.S., Wesley Sabocheck, D.M.D., and Dr. Dinello’s professional corporation on grounds that the defendants had tortiously interfered with plaintiffs business relationships by accepting and treating as patients persons whom defendants knew to be patients of plaintiff. This occurred, it was alleged, because defendants were occupying office space formerly leased to and used by plaintiff, and also because C. Richard Miller, who had formerly been associated with plaintiff, was diverting plaintiff’s patients to the defendants. Plaintiff sought by discovery to obtain the names and addresses of patients treated by defendants at plaintiff’s former offices. Defendants moved for a protective order. It was denied. After the motion for protective order had been denied, defendant-appellants refused to produce documents requested by the plaintiff. There followed a series of motions and court orders directing the defendants to provide discovery and which, when discovery was not forthcoming, caused the court to enter a sanction order. The sanction chosen by the court was the entry of a default judgment against defendants on the issue of liability. See: Pa.R.C.P. 4019(c)(3).

On March 22, 1983, seventy-six (76) days after entry of the default judgment, appellants filed a petition to open the judgment. Their petition contained averments that in the interim defendants had provided plaintiff with the names and addresses of more than 900 patients who had been treated in the offices formerly occupied by plaintiff. An answer was filed denying, inter alia, that defendants had fully complied with the court’s directions. On August 11, 1983, the trial court denied defendants’ petition to open judgment. Defendants then appealed from the order refusing to open the judgment. Their appeal, however, does not seek review of the order denying the petition to open. Their appeal, rather, is directed to the sanction order entering default judgment. Thus, they state the issues on appeal as follows:

I. Whether the lower court’s entry of a default judgment as a sanction in discovery was invalid, where the underlying request for discovery was invalid?
II. Whether, even if the underlying request for discovery was not invalid, the lower court’s entry of a default judgment as a sanction against the Appellants either originally was or later became an abuse of discretion?
III. Whether the lower court’s entry of a default judgment against Drs. Dinello and Sabocheck was improper, where the underlying request for discovery had not been addressed to either of them?

Statement of Questions Involved, Appellants’ Brief, p. 4.

We have determined that the present appeal is improper and must be quashed. In Sims v. Feingold, 329 Pa.Super. 437, 478 A.2d 868 (1984), this Court held that an order entering a default judgment against a defendant for failure to comply with the trial court’s several discovery orders was interlocutory and not appealable until after damages had been determined. See also: 16 Std.Pa.Prac.2d § 86:32 (1983). This holding was consistent with prior decisions of the Court which had held uniformly that a summary judgment entered in favor of a plaintiff on the issue of liability was not appealable until damages had been determined and judgment entered in a monetary ^amount. See: Williams v. Erie Insurance Exchange, 290 Pa.Super. 279, 280, 434 A.2d 752, 753 (1981), quoting 2 Goodrich-Am-ram 2d § 1035(b):10 (1976); Inselberg v. Employers Mutual Companies, 291 Pa.Super. 406, 435 A.2d 1290 (1981); Ne- will v. Piccolomini, 228 Pa.Super. 220, 323 A.2d 40 (1974). Because the present litigation has not been finally determined, an appeal will not lie. Appellants cannot obtain appellate review of the trial court’s sanction order under the guise of a petition to open the default judgment entered on the issue of liability. The judgment entered solely on the issue of liability did not terminate the litigation. Therefore, it was interlocutory and unappealable; it will not be rendered final and appealable because the trial court subsequently denied a petition to open it.

The judgment on the issue of liability in this case was not entered by confession or by default. It was entered by the court pursuant to Pa.R.C.P. 4019(c)(3) as a sanction for appellants’ refusal to provide discovery as directed by the court. A sanction order entering judgment pursuant to Pa.R.C.P. 4019(c)(3) is not subject to a petition to open. There is no authority in the rules for such a petition, and orderly practice suggests that there should be none. In this respect a default judgment entered pursuant to Pa.R.C.P. 4019(c)(3) is comparable to a judgment entered after hearing. A party may request a court to reconsider a sanction order entering judgment, of course, but neither reconsideration nor refusal to reconsider will transform an interlocutory order into one that is final and appealable.

Appellants argue that an order opening or refusing to open any judgment, even though interlocutory, has been made appealable as of right by Pa.R.App.P. 311(a)(1). This rule does not aid appellants in the instant case. As we have observed, the trial court’s sanction order entering judgment on the issue of liability in this case was not properly the subject of a petition to open. Appellants’ petition, therefore, must be treated as a petition to the trial court to reconsider its prior order. That this was appellants’ intent is apparent from their argument on appeal that the sanction order entering judgment was invalid. The trial court’s refusal to reconsider its prior order, however, is not appeal-able.

By quashing the present appeal we leave unreviewed the order of the trial court entering a default judgment on the issue of liability. See: Pa.R.App.P. 311(d)(l)(i). If the action proceeds to final judgment for monetary damages, an appeal from the final judgment will bring up for review the entire proceedings, including the sanction order entering judgment in favor of appellees on the issue of liability. By quashing the present appeal and refusing to review the propriety of the trial court’s sanction order at this time, we limit to one the number of appeals which can be spawned by the same action.

Appeal quashed.

      . Only the professional corporation, Donald D. Dinello, D.M.D., P.C., was served with interrogatories.

      . An appeal to the Superior Court from this order was quashed because the order was interlocutory.

      . On September 8, 1982, the court ordered that Dinello, Sabocheck and the professional corporation answer the disputed interrogatories or face sanctions.

      . Dr. Miller is not a party to this appeal.

      . We decline to follow a contrary holding by the Commonwealth Court in Marshall v. Southeastern Pennsylvania Transportation Authority, 76 Pa.Cmwlth. 205, 463 A.2d 1215 (1983). The rule there followed would permit two appeals in the same action; the first would require a review of liability, and the second would entail a review of damage issues. We believe such a rule would be inefficient and unwise. There is no reason why one appeal, during which issues of liability and damages can be reviewed, will not suffice. In any event, the rule adopted by the Commonwealth Court would also require a quashing of the instant appeal. The order entering judgment on the issue of liability was not appealed within thirty days as required by Pa.R.App.P. 903(a).

      . Pa.R.App.P. 311(d)(l)(i) has effectively overruled an earlier ruling of this Court in Scharfman v. Philadelphia Transportation Co., 234 Pa.Super. 563, 340 A.2d 539 (1975), which held that a failure to appeal from an order refusing to open a default judgment entered pursuant to Pa.R.C.P. 4019 constituted a waiver and barred appellate review thereof during an appeal from a final judgment for monetary damages entered thereafter.