author: CIRILLO, Judge:

text:
    494 A.2d 853
    In re Petition of Michael Thomas HENNESSY. Appeal of SCHEIRER MACHINE COMPANY, INC., Intervenor. In re Petition of SCHEIRER MACHINE COMPANY, INC. Appeal of SCHEIRER MACHINE COMPANY, INC.
    Superior Court of Pennsylvania.
    Argued March 18, 1985.
    Filed May 3, 1985.
    Reargument Denied July 8, 1985.

      James D. Elder, Pittsburgh, for appellant.
    Before CIRILLO, HOFFMAN and ROSENWALD , JJ.

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

   CIRILLO, Judge:

In 1979, Michael Thomas Hennessy (Hennessy) purchased a 1974 Chevrolet truck from S.M.S. Sales, Inc. (S.M.S.) of Cleveland, Ohio, a company that neighbored Hennessy’s business and shared a common parking lot. In consideration for receipt of the truck, Hennessy conveyed to S.M.S. two other vehicles and $2,500.00 in cash. Additionally, Hennessy assumed the outstanding indebtedness on the truck; however, because Hennessy could not finance this debt, S.M.S. continued to make the payments, while Hennessy agreed to provide his personal services to S.M.S. in return. Hennessy took possession of the truck upon sale, although S.M.S. retained possession of the truck’s certificate of title.

The Chevrolet truck was stolen from the common parking lot in May, 1981. The theft was reported to the Cleveland police by Edward High, majority shareholder of S.M.S. and one of the parties with whom Hennessy contracted for the purchase of the truck. Sometime later, Edward High recovered the truck but did not report this to anyone. Ostensibly due to certain damage suffered during the theft, High replaced certain parts of the truck with parts from a 1968 GMC truck and then painted the Chevrolet truck a different color. On June 11, 1981, Edward High sold the now hybrid truck to Scheirer Machine Company (Scheirer), of Pennsylvania, and subsequently sent to Scheirer the title, which listed the vehicle as a 1974 Chevrolet truck registered in the name of S.M.S.

High’s ex-wife informed the Cleveland police in September, 1983 that the truck could be found at Scheirer’s business, in Pennsylvania. In turn, the Pennsylvania State Police were notified, and an investigation into the identification numbers on the truck at Scheirer’s business revealed it to be the 1974 truck. Scheirer had improperly registered the truck in Pennsylvania as a 1968 GMC, such being the year and make of the recently added parts. The truck was seized and impounded by the Pennsylvania State Police. Pursuant to Pennsylvania Rule of Criminal Procedure 324, the Criminal Division of the Court of Common Pleas of Allegheny County granted Hennessy’s petition to have the seized truck returned to him as rightful owner.

Appellant Scheirer raises three issues for our review:
1) Did the criminal division of the Court of Common Pleas of Allegheny County, Pennsylvania have jurisdiction to determine to whom property seized pursuant to a search warrant should be returned in the presence of conflicting claims of ownership?
2) Can a record title holder of a motor vehicle act to transfer title to said motor vehicle to a purchaser?
3) Can a good faith purchaser for value of a motor vehicle acquire legal title to a motor vehicle, such as to have priority of title over one who attempts to assert an equitable interest thereto?
It is well settled that the courts of common pleas have unlimited original jurisdiction. Article 5, Section 5 of the Pennsylvania Constitution provides:
§ 5. Courts of Common Pleas
There shall be one court of common pleas for each judicial district
(a) having such divisions and consisting of such number of judges as shall be provided by law, one of whom shall be the president judge; and
(b) having unlimited original jurisdiction in all cases except as may otherwise be provided by law.

See also 42 Pa.C.S. § 931.

The divisions of the common pleas courts are merely administrative and each division is vested with the full jurisdiction of the whole court. 42 Pa.C.S. § 952; see also Guerin v. Guerin, 296 Pa.Super. 400, 442 A.2d 1112 (1982). Therefore, the criminal division of the Court of Common Pleas had jurisdiction to hear the petition for the return of the truck.

Moreover, under the facts of this case, the proper method of moving for a return of property was pursuant to Pa.R. Crim.P. 324. Hennessy was clearly a person aggrieved by a seizure under Rule 324.

The second issue appellant raises is governed by 13 Pa.C.S. § 2403(a), which provides in part:

(a) Transfer of title. — A purchaser of goods acquires all title which his transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser for value____

“The basic policy of our law allowing transfer of such title as the transferor has is generally continued and expanded” under this subsection. Comment 1 to Section 2403. Broadly stated, Section 2403 deals with two related topics: the power of a transferor of goods to transfer title or an interest in goods; and the title of a good faith purchaser for value of goods. See J. White & R. Summers, Handbook of the Law Under the Uniform Commercial Code, § 3-11 (1980).

The first sentence of the subsection gives a purchaser of goods all title which his transferor had or had the power to transfer. As Comment 1 states, “the provisions of the section are applicable to a person taking by any form of ‘purchase’ as defined by this Act.” Purchase is defined in 13 Pa.C.S. § 1201 as “taking by sale, discount, negotiation, mortgage, pledge, lien, issue or reissue, gift or any other voluntary transaction creating an interest in property.” A sale is defined as the “passing of title from the seller to buyer for a price.” Id. at 2106(a). Once goods are delivered to the buyer, title passes. Id. at 2401(2).

In the case sub judice, there can be no doubt that Hennessy was a purchaser of the truck and had title to it. The record shows that Hennessy paid $2,500.00 in cash to S.M.S., along with the delivery of another truck and a van, and agreement to perform services for S.M.S. in order to pay off the remainder of the debt on the truck. Hennessy had possession and control of the truck from the time he purchased it from S.M.S. until it was stolen.

The fact that the certificate of title remained in S.M.S.’s possession is of no consequence. A certificate of title is not conclusive evidence of ownership. In re Estate of Summers, 424 Pa. 195, 226 A.2d 197 (1967); Wasilko v. Home Mutual Casualty Corp., 210 Pa.Super. 322, 232 A.2d 60 (1967); Weigelt v. Factor’s Credit Corp., 174 Pa.Super. 400, 101 A.2d 404 (1953) (allocatur denied). The Pennsylvania Bar Association’s Notes to Section 2401 state:

“title” has much less effect in determining the rights of the parties than under the repealed Uniform Sales Act. Therefore, in dealing with any problem under the Code, it is important to ascertain whether any specific provision deals with the problem; if so, it will override any implication to be drawn from the location of the title.

From the foregoing discussion it is apparent that when S.M.S., through Edward High, sold the truck to Scheirer, no title passed. Under Section 2403, the purchaser acquires “all title which his transferor had.” With title having vested in Hennessy in 1979, S.M.S. had nothing to transfer to Scheirer. Therefore, title remained in Hennessy.

Appellant’s final argument, while seeming to have merit on its face, contains a fatal flaw in analysis. The argument is based upon the unfounded assumption that S.M.S. had voidable title to the truck; as such, under the second sentence of Section 2403(a), Scheirer could have obtained title as a good faith purchaser for value. Apart from the question of good faith, is that of how S.M.S. obtained voidable title to the truck. In order to have voidable title, one must obtain goods through the assent of the original owner, but not necessarily acquired good title. Justice v. Febey, 541 F.Supp. 1019 (E.D.Pa.1982). There is no evidence of record that S.M.S. obtained possession of the truck through the assent of Hennessy. Any title that S.M.S. had, therefore was void title. Consequently, S.M.S. had nothing to transfer to Scheirer. Linwood Harvestore, Inc. v. Cannon, 427 Pa. 434, 437, 235 A.2d 377, 380 (1967). Therefore, title to the truck remained in Hennessy.

Order affirmed.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    494 A.2d 856
    David NIADNA, Appellant, v. Roberta NIADNA, Appellee.
    Superior Court of Pennsylvania.
    Argued March 20, 1985.
    Filed June 14, 1985.

      William R. Mosolino, Orwigsburg, for appellant.
    J. Robert Zane, Schuylkill Haven, for appellee.
    Before WIEAND, WATKINS and GEISZ, JJ.

       The Honorable JOHN A. GEISZ, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   WIEAND, Judge:

The sole issue in this appeal is whether the hearing court abused its discretion by awarding to the natural mother of a twelve year old girl a right of summer visitation for three weeks at the mother’s home in California after the mother had failed to exercise visitation rights under a prior court order for almost ten years. We conclude that there was no abuse of discretion and affirm.

David Niadna, the appellant, and Roberta Niadna Emsley, the appellee, were married on November 23, 1968. Roberta was then sixteen years of age, and David was twenty-one. A female child, Heather, was born on July 9, 1972. Marital discord arose, and the parties separated during the summer of 1973 and were divorced in March, 1975. By order of court entered October 14, 1975, custody of Heather was awarded to her father, with weekend and holiday visitations awarded to her mother. By that time, Roberta had remarried, and shortly thereafter she moved to California. Still later, Roberta was divorced a second time and again remarried. She presently lives with her third husband and their three sons in southern California. Meanwhile, David remarried also and was again divorced. He now lives with his third wife and Heather in Nuremberg, Schuylkill County.

During the intervening years, according to Roberta’s testimony, she attempted to keep in touch with Heather by letters, cards and gifts. Between April, 1977 and December, 1978, David sent several photographs of Heather to Roberta, and in August, 1978, Roberta attempted to visit her daughter in Schuylkill County. She was turned away by David. Early in 1983, Roberta wrote to David and requested that she be permitted to visit her daughter at a mutually satisfactory time and place. Her request was ignored. In February, 1984, she filed a petition seeking a modification of the prior visitation schedule so that she might visit her daughter. She conceded that David had been a good parent and did not seek to alter the order of permanent custody. After hearing, the court ordered visitation in California for three weeks in the summer of each year, to commence in August, 1984. The court also directed visitation in Pennsylvania at times to be agreed upon by the parties. David appealed.

Courts do not sanction the estrangement of a child from either parent. Commonwealth ex rel. Newcomer v. King, 301 Pa.Super. 239, 247, 447 A.2d 630, 634 (1982). Therefore, visitation rights of a non-custodial parent will be guarded carefully. In re Lisa and Cynthia, 287 Pa.Super. 255, 259-260, 429 A.2d 1197, 1199 (1981); Spells v. Spells, 250 Pa.Super. 168, 175, 378 A.2d 879, 883 (1977). As a general rule, the fact that a parent has delayed in asserting his or her rights of visitation will not serve as a bar to the right to visit with his or her child. In re Lisa and Cynthia, supra, 287 Pa.Super. at 259, 429 A.2d at 1199; Fernald v. Fernald, 224 Pa.Super. 93, 95, 302 A.2d 470, 471 (1973). A parent will be denied visitation only in those instances where the record shows that the parent is severely mentally or morally deficient so as to constitute a grave threat to the child’s welfare. Somers v. Somers, 326 Pa.Super. 556, 559, 474 A.2d 630, 631 (1984); Hughes v. Hughes, 316 Pa.Super. 505, 508, 463 A.2d 478, 479 (1983). See also: Lewis v. Lewis, 271 Pa.Super. 519, 522, 414 A.2d 375, 376 (1979), cert. denied, 449 U.S. 877, 101 S.Ct. 221, 66 L.Ed.2d 99 (1980). The sole concerns of a court called upon to enforce a parent’s right of visitation are the welfare and best interests of the child. Somers v. Somers, supra, 326 Pa.Super. at 558, 474 A.2d at 631; In re Stuck, 291 Pa.Super. 61, 63, 435 A.2d 219, 220 (1981).

The record in this case establishes that Roberta now leads a settled and secure life in California with her husband and three sons. She has earned a high school diploma and is presently taking courses at a local junior college. The hearing court received testimony from family, friends, and professionals as to Roberta’s fitness as a parent, notwithstanding the extended period during which she did not visit her daughter. Testimony was also received and considered regarding the likely effect which an abrupt parental visitation in California would have on Heather. The hearing judge interviewed Heather in chambers with counsel present and learned that while she was not averse to developing a relationship with her natural mother, she was apprehensive about going to California. Even David did not contend that Roberta should not be entitled to reestablish a relationship with her daughter. He contended, however, that the court should not allow personal visits but require Heather and her mother to become acquainted gradually through the mail and telephone before any visits occurred, particularly in California.

Our examination of the record discloses no abuse of discretion by the hearing court. The record discloses no valid reason for denying Roberta the right to have her daughter visit with her. The previous weekend visitation schedule was not feasible after Roberta’s relocation to California. Nevertheless, Roberta attempted, consistent with her means, to keep in touch with Heather despite the obstacles presented by the distance of their geographical separation. There is no evidence that Roberta suffers from mental or moral deficiencies that would prevent the full exercise of her rights as a non-custodial parent. Similarly, there are no apparent reasons for supposing that a visit to California would in any way prove harmful to Heather, who is a self-assured, bright, articulate teenage child. Travel is not a substantial barrier; her parents can be expected to cooperate in making the trip a pleasant one. The courts have held that even a lack of desire on the part of a child to see a parent is not sufficient reason to deny visitation. See: Nancy E.M. v. Kenneth D.M., 316 Pa.Super. 351, 357, 462 A.2d 1386, 1389 (1983). Because a visitation order by its very nature is temporary, moreover, the order will be under the continuing supervision of the court. In re Stuck, supra, 291 Pa.Super. at 64, 435 A.2d at 221. Should this arrangement adversely effect Heather’s best interests and welfare, the visitation schedule may again be modified. We conclude that under all the circumstances there has been no abuse of discretion on the part of the hearing court and that its order directing visitation should be affirmed.

Order affirmed.

      . The order also permitted weekday visits, every other week, for five hours at the discretion of the mother.

      . There was testimony suggesting that Heather’s father, the appellant, had not permitted these letters, cards and gifts to be received by his daughter but the hearing court made no findings with respect thereto.

      . Although no supersedeas was granted, we are advised that David refused to permit the court ordered visit in August, 1984.


author: DEL SOLE, Judge:

text:
    494 A.2d 859
    In re PRIVATE ROAD IN GREENE TOWNSHIP. Walter KUHL, Appellee, v. Helen MOREHOUSE, Appellant.
    Superior Court of Pennsylvania.
    Argued March 11, 1985.
    Filed June 14, 1985.

      George M. Schroeck, Jr., Erie, for appellant.
    Edward J. Lucht, Erie, for appellee.
    Before DEL SOLE, HESTER and FEENEY , JJ.

       Honorable JOHN M. FEENEY of the Court of Common Pleas of Allegheny County, Pennsylvania is sitting by designation.

   DEL SOLE, Judge:

In June, 1981, the Appellee, Walter Kuhl, purchased two tracts of land in Greene Township, Erie County. The tracts are non-contiguous, separated by a strip of land, 64 feet wide, owned by the Appellant, Helen Morehouse. The smaller of the Appellee’s parcels fronts on a public highway but the larger of the two, on which the Appellee intends to construct an industrial landfill, is landlocked. When the Appellee began to operate his trucks over the strip of land owned by the Appellant in order to gain access to the highway, Mrs. Morehouse sought an injunction enjoining Mr. Kuhl from trespassing over her land. This injunction was granted. Mr. Kuhl then brought the present action seeking the grant of a private road over Mrs. Morehouse’s land pursuant to 36 Pa.C.S.A. § 2731 et seq.

The statute in question provides:
§ 2731. Proceedings to open private roads
The several courts of quarter sessions shall, in open court as aforesaid, upon the petition of one or more persons, associations, partnerships, stock companies, or corporations, for a road from their respective lands or leaseholds to a highway or place of necessary public resort, or to any private way leading to a highway, or upon the petition of the chief executive officer of any executive or administrative department of the State Government for a road from any public highway across any lands of any person, association, or corporation to the boundary line of any lands owned, controlled, or administered by the Commonwealth, direct a view to be had of the place where such road is requested, and a report thereof to be made, in the same manner as is directed by the said act of thirteenth June, one thousand eight hundred and thirty six.
§ 2732. Proceedings on report of viewers
If it shall appear by the report of viewers to the court directing the view, that such road is necessary, the said court shall direct what breadth the road so reported shall be opened, and the proceedings in such cases shall be entered on record, as before directed, and thenceforth such road shall be deemed and taken to be a lawful private road.

36 Pa.C.S.A. §§ 2731, 2732.

Mr. Kuhl’s petition to appoint a Board of Viewers was granted by the Court of Common Pleas of Erie County. The Board viewed the premises on April 20, 1983. Public hearings were held by the Board on August 26, 1983, and December 2, 1983. The Board’s Final Report was submitted on January 23, 1984 which granted Mr. Kuhl’s petition for a private road and awarded Mrs. Morehouse $7,500 in damages. The Honorable Jess Jiuliante dismissed the Appellant’s exceptions to the Report, affirmed the Report of the Board of Viewers and issued an order opening the private road on May 18, 1984. Mrs. Morehouse appealed.

First we note that the statute provides the Board of Viewers with broad authority to determine whether a private road is necessary. The Board of Viewers constitutes an independent tribunal, and review by the trial court is limited to confirmation of the report of the Board, or rejection of it and the direction of a review. In Re: Private Road in Monroeville Borough, 204 Pa.Super. 552, 205 A.2d 885, 887-88 (1964) (citations omitted). Appellate review is limited to ascertaining the validity of the court’s jurisdiction, the regularity of the proceedings, questions of law and whether there has been an abuse of discretion. Application of Little, 180 Pa.Super. 555, 119 A.2d 587 (1956) (citations omitted). With this in mind we have carefully reviewed the record in this case, and we affirm in part and vacate in part.

Appellant has raised three issues before this Court, two of which question the finding of the Board that a private road is necessary. Appellant’s first argument is that the grant of a private road for the purpose of permitting the commercial development of a landlocked parcel of land is outside the scope of the statute. Appellant argues that the Appellee’s plan to operate a landfill is not evidence of strict necessity for the private road.

In Application of Little, this Court described the word “necessity” as the key to the entire Act. Little, supra, 180 Pa.Superior Ct. at 589, 119 A.2d 587. In Little, we offered as an example of “strictest necessity” the case where a parcel of land is completely landlocked. Id. There is no requirement in the statute that the necessity be for residential rather than commercial purposes, and in fact, the statute’s listing of “associations, partnerships, stock companies and corporations” as possible petitioners seems to contemplate the opening of private roads for commercial purposes. 36 Pa.S.C.A. § 2731. In Little, we also noted that the statute provides that the Board should determine the necessity of the road and this was ordinarily a factual matter to be determined by actually viewing the premises and if necessary, by holding hearings. Little, supra, 180 Pa.Superior Ct. at 589, 119 A.2d 587. In the case before us, a factual finding of necessity was made by the Board after a view of the premises as well as public hearings. We find no merit in Appellant’s argument that we should reverse the finding of the Board.

Appellant secondly argues that a private road may not be opened when other property which would have given the petitioner access to this landlocked parcel was available for private sale. The record reveals that there was, at least for a time, property for sale other than the Morehouse property, which would have provided the Appellee with access to a public road. The Board’s final report listed as a finding that other land was for sale but an exhorbitant selling price for the type of access needed by the petitioner. Final Report, p. 4. Our Court has found that in interpreting this statute, “strict necessity” does not mean “absolute necessity”. Little, supra, 180 Pa.Superior Ct. at 589, 119 A.2d 587. As with Appellant’s first argument, we find no reason to reverse the finding of the Board as affirmed by order of the trial court.

We find, however, that Appellant’s third argument has merit. The Appellant asserts that the case should be remanded for additional findings of fact to support the award of damages and we agree. The statute provides that damages for a private road should be estimated in the manner provided for in the case of a public road. 36 Pa.C.S.A. § 2735. We therefore look to the Eminent Domain Code for the proper procedure, where Article VII provides:

§ 1-701. Viewer’s hearing
The viewers may hear such testimony, receive such evidence, and make such independent investigation as they deem appropriate, without being bound by formal rule of evidence.
§ 1-702. Condemnor’s evidence before reviewers
The condemnor shall, at the hearing before the viewers, present expert testimony of the amount of damages suffered by the condemnee.

26 Pa.C.S.A. §§ 1-701, 702.

The record reveals no evidence offered by either party as to the amount of damages suffered by the Appellant due to the opening of the private road and we find such evidence must be offered to support the Board’s award of damages.

We therefore affirm the Order of the trial court which orders the private road be opened and we vacate the part of the trial court’s Order awarding damages. We remand for a hearing before the Board of Viewers to take testimony on the amount of damages to be awarded.

Order affirmed in part and vacated in part. Case remanded for proceedings consistent with this opinion.

Jurisdiction relinquished.

      . We do not agree with Appellant’s assertion that there be additional evidence taken on the question of safety, however.


author: MONTEMURO, Judge:

text:
    494 A.2d 862
    Susan GRANT, Appellee, v. TRAVELERS INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued March 13, 1985.
    Filed June 14, 1985.

      Kevin J. Sommar, Lansdale, for appellant.

      Steven H. Kitty, Philadelphia, for appellee.
    Before MONTEMURO, ROBERTS and BLOOM, JJ.

       Judge LOUIS A. BLOOM, Senior Judge, of the Court of Common Pleas, of Delaware County, Pennsylvania, is sitting by designation.

   MONTEMURO, Judge:

This is an appeal from the entry of summary judgment, on February 28, 1984, in favor of appellee, Susan Grant. Appellee is an uninsured motorist claiming basic loss benefits pursuant to the Pennsylvania No-fault Motor Vehicle Insurance Act [“Act”]. The sole issue presented by the instant appeal, and one which we perceive to be of first impression, is: Whether the value of Health Maintenance Organization [“HMO”] entitlements, which have in fact been denied due to a claimant’s failure to act in accordance with the requirements of his/her HMO plan, may be subtracted from “loss” in calculating the basic loss benefits to be paid by an assigned claims plan assignee.

As noted in the opinion of the court below, filed on July 31,1984, the respective parties agree that the material facts of this matter are not in dispute. Those facts are set forth therein as follows:

On November 10, 1982, Plaintiff [appellee] Susan Grant was involved in a motor vehicle accident. There being no applicable security covering the vehicles involved in the accident, Plaintiff made application to the Pennsylvania Assigned Claims Plan for basic loss benefits on November 11, 1982. Defendant [appellant], Travelers Insurance Company ... was assigned to service the claim.
In its answer to Defendant’s new matter, Plaintiff admitted to being a beneficiary under a Health Maintenance Organization (HMO Pa) insurance plan. However, HMO Pa denied coverage on Plaintiff’s claim for her failure to satisfy various requirements of that organization.[] On November 23, 1983, Defendant filed a motion for summary judgment alleging that it owed Plaintiff nothing after exercising its set-off rights pursuant to Section 108 of the Pennsylvania No-Fault Act. Plaintiff filed a cross motion for summary judgment November 29, 1983, asserting that Section 108 did not relieve Defendant of its obligation to compensate Plaintiff for sustained economic detriment.
On February 22, 1984, this Court granted Plaintiffs motion for summary judgment in the amount of $5,080.43 plus interest and denied Defendant’s motion for summary judgment.

Lower court opinion at 1-2.

Initially, we note that, in analyzing the issue presently before us, we have been keenly mindful of former President Judge Cercone’s sagacious admonishment:

[W]e caution anyone who embarks on the high seas of Pennsylvania’s No-fault Motor Vehicle Insurance Act not to do so without a good compass, a knowledge of reefs and storms and plenty of food and water. Any attempt to choose an alternative route by land in an effort to unlock the secrets of the Act will encounter mazes of paths, pitfalls, underbrush and dead ends.

Heffner v. Allstate Insurance Company, 265 Pa.Super. 181, 184, 401 A.2d 1160, 1161 (1979), aff'd, 491 Pa. 447, 421 A.2d 629 (1980).

The Pennsylvania Assigned Claims Plan [“PACP”] is contained within section 108 of the Act. The PACP affords recovery of basic loss benefits to motor vehicle accident victims when no basic loss insurance policy has been issued to cover the claim. 40 P.S. § 1009.108(a). “Basic loss benefits” are generally defined in the Act as “benefits provided in accordance with this act for the net loss sustained by a victim, subject to any applicable limitations, exclusions, deductibles, waiting periods, disqualifications, or other terms and conditions provided or authorized in accordance with this act.” 40 P.S. § 1009.103 (emphasis added).

Significantly, the general assigned claims plan provisions state, at subsection 108(a)(3):

(3) If an individual receives basic loss benefits through the assigned claims plan for any reason other than because of the financial inability of an obligor to fulfill its obligation, all benefits or advantages that such individual receives or is entitled to receive as a result of such injury, other than life insurance benefits or benefits by way of succession at death or in discharge of familial obligations of support, shall be subtracted from loss in calculating net loss.

(emphasis added). See generally Killeen v. Travelers Insurance Company, 721 F.2d 87 (3d Cir.1983).

Appellant argues that, because appellee was “entitled to receive” HMO benefits for the injuries she sustained as a result of her accident, those benefits are properly deductible from the amount of appellee’s overall loss in computing the basic loss benefits recoverable from appellant under the PACP. Appellee argues responsively that, (1) her HMO benefits have been denied and therefore she is not “entitled” to those benefits, and (2) an HMO is not a traditional insurance carrier and therefore is not the type of provider of “benefits or advantages” envisioned by subsection 108(a)(3). We are in agreement with the conclusion reached by appellant.

Appellee’s first argument begs the question in that, although she is indeed unentitled to her HMO benefits, she sacrificed her entitlements by failing to act in accordance with the terms of her HMO plan. Had appellee actually received the benefits afforded by her HMO, appellant would have possessed an indisputable right of set-off for the amount of the benefits received, pursuant to subsection 108(a)(3). To now deny appellant a set-off right because of appellee’s own wilful failure to properly secure her HMO entitlements, appears to us to be an unreasonable result.

Regarding appellee’s argument that an HMO is not a traditional provider of “benefits or advantages” to which section 108(a)(3) is applicable, we note that the regulations promulgated by the Insurance Department state that any HMO, approved by the Insurance Department, qualifies as a source of “collateral benefits” for the purposes of an insured’s primary coverage election. 31 Pa.Code § 66.-53(c)(4)(v). We are unable to discern any reasonable rationale for differentiating HMO benefits from other types of “benefits or advantages” for the purposes of subsection 108(a)(3). Indeed the language of that subsection impliedly lends itself to a liberal interpretation of “all benefits or advantages” in computing net loss. Compare 40 P.S. § 1009.206(a).

Appellee additionally directs our attention to subsection 106(a)(3) of the Act, which states:

(3) A claim for no-fault benefits shall be paid without deduction for the benefits or advantages which are to be subtracted from loss in calculating net loss if such benefits or advantages have not been paid or provided to such claimant prior to the date the no-fault benefits are overdue or the no-fault benefits claim is paid. The obligor is thereupon entitled to recover reimbursement from the person obligated to pay or provide such benefits or advantages or from the claimant who actually receives them.

See generally Bell v. United States Department of Labor, 560 F.Supp. 515 (E.D.Pa.1983), aff'd, 754 F.2d 490 (3d Cir.1985). In construing this subsection, one commentator has posited, by way of an example:

Thus, if an injured claimant is eligible to receive Workmen’s Compensation, Medicare, or other governmental benefits, but they have not yet been paid, he is entitled to full payment of his no-fault claim. No deduction may be made for the expectancy of payment of governmental benefits. The obligor who has provided full no-fault compensation to the claimant is entitled to reimbursement from the party obligated to pay or provide such benefits, or from the claimant after he has actually received them.

D. Shrager, ed., The Pennsylvania No-fault Motor Vehicle Insurance Act 145-46 (1979).

Subsection 106(a)(3) clearly requires the prompt payment of full no-fault benefits without a permissible set-off for collateral benefits or advantages, if those benefits or advantages have not been realized by the claimant. However, integral to the proper functioning of this provision is the claimant’s ultimate rightful entitlement to those benefits or advantages. In the absence of such entitlement, there exists no fund of collateral benefits or advantages from which the obligor, having paid full no-fault benefits, may recover reimbursement. Because appellee is not entitled to her HMO benefits, we decline to find subsection 106(a)(3) applicable to the instant case. If we were to accept appellee’s invitation to apply subsection 106(a)(3) herein, we would be frustrating the clear intent of the legislature in enacting that provision, to appellant’s severe detriment.

Appellant’s assertion that the set-off provision of subsection 108(a)(3) should be plainly read to apply to the instant facts due to appellee’s entitlement to HMO benefits “as a result of” her injuries is, we believe, in accordance with the apparent legislative intention in enacting subsection 108(a)(3). We interpret that intention to have been to preserve and protect the PACP benefits resource from unwarranted payments. Any depletion of that resource directly affected the cost of motor vehicle insurance to the law-abiding majority of citizens in this Commonwealth who opted to comply with the express mandate of the Act in providing security coverage for their vehicles. See 40 P.S. § 1009.104. We are of the opinion that, in light of the specific circumstances before us, appellee should not be granted access to the PACP resource.

We are bolstered in our resolve to so dispose of this appeal by the language in subsection 108(a)(4)(A), which states:

(4) An assigned claim of an individual who does not comply with the requirement of providing security for the payment of basic restoration benefits, or of an individual as to whom the security is invalidated because of his fraud or willful misconduct, is subject to:
(A) all the maximum optional deductibles and exclusions required to be offered; ____

As the owner/operator of an admittedly uninsured motor vehicle, appellee’s claim is rendered subject to this provision. One of the “optional deductibles and exclusions” envisioned by subsection 108(a)(4)(A) appears at subsection 203(b), stating:

(b) The owner or operator of a motor vehicle may elect to provide for security in whole or in part for the payment of basic loss benefits through a program, group, contract or other arrangement that would pay to or on behalf of the victim or members of his family residing with him or the survivor of a deceased victim, allowable expense, loss of income, work loss, replacement services loss and survivors loss. In all such instances, each contract of insurance issued by an insurer shall be construed to contain a provision that all basic loss benefits provided therein shall be in excess of any valid and collectible benefits otherwise provided through such program, group, contract or other arrangement as designated at the election of the owner or operator which shall be primary.

See 31 Pa.Code § 66.53.

The application of subsection 108(a)(4)(A) in conjunction with subsection 203(b) instructs us to consider appellee’s posture, by analogy, as though she possessed a valid no-fault insurance policy and had exercised the available election, designating her HMO plan as primary coverage. Recently, in an opinion by our esteemed colleague, Judge Beck, this court held that, when a no-fault insured has designated an HMO plan as primary coverage and then, following injury, fails to properly act to secure the HMO entitlements, the no-fault insurer shall not be held liable for the foregone HMO benefits. Carr v. Erie Insurance Company, 342 Pa.Super. 429, 493 A.2d 97 (1985). Therefore, pursuant to subsections 108(a)(4)(A) and 203(b), appellant herein cannot be found to bear the financial burden for benefits that were available from appellee’s HMO.

Mindful of the pertinent standards and scope of our review of the entry of a summary judgment, see Just v. Son’s of Italy Hall, 240 Pa.Super. 416, 368 A.2d 308 (1976), and based upon the foregoing discussion, we reverse the order of the court below entering judgment in favor of appellee and we remand this case for the entry of judgment in favor of appellant.

Reversed and remanded. Jurisdiction is relinquished.

      . Act of July 19, 1974, P.L. 489, No. 176, arts. I-VII, §§ 101-701, 40 P.S. §§ 1009.101-701 (repealed).

      . Specifically, it appears from the briefs and the record before us that the HMO’s denial of coverage was predicated upon appellee’s failure to obtain her medical treatment from physicians and/or facilities approved by the HMO.

      . We note that, in appellee's brief, she inexplicably relies upon §§ 108(a)(1)(E) and 108(a)(2) of the Act. Even a casual reading of those subsections demonstrates their inapplicability to the instant facts and we see no need for further comment.


author: BECK, Judge:

text:
    494 A.2d 866
    Kurt RICE and Margaret Rice, Appellees, v. Dr. David SHUMAN, Defendant and Nationwide Insurance Company, Garnishee. Appeal of NATIONWIDE INSURANCE COMPANY. Anna RICKENBACH and Bertolet Rickenbach, Appellees, v. Kurt RICE and Dr. David Shuman and Nationwide Mutual Insurance Company. Appeal of NATIONWIDE MUTUAL INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued July 18, 1984.
    Filed June 21, 1985.

      Michael Gallagher, Philadelphia, for appellant.
    Eugene A. Spector, Philadelphia, for appellees.
    Before CAVANAUGH, BECK and TAMILIA, JJ.
   BECK, Judge:

These appeals are collateral to a tort action arising from a two-car accident. After a jury trial, a judgment was entered awarding appellees money damages against certain defendants including Dr. David Shuman. Exceptions were filed by defendant Shuman. He died before the exceptions were denied.

Appellant is defendant’s insurer. It filed an appeal on defendant’s behalf on the underlying tort action. Appellant did not file a supersedeas bond. Meanwhile, appellees brought a garnishment action against appellant, and pursuant to the garnishment action, judgment was entered in favor of appellees in the amount of defendant Shuman’s policy coverage. Appellant petitioned the trial court to strike the judgment. The court’s response was its order of July 15, 1983:

AND NOW, this 15th day of July, 1983, upon consideration of garnishee Nationwide Mutual Insurance Company’s Petition to Strike the Judgment and for Stay of Proceedings and plaintiff’s answer thereto, it is hereby ordered that garnishee’s petition is denied.

Appellant appeals the above order.

Appellant’s contention is that the judgment should have been stricken and the proceedings stayed pending the outcome of its appeal on the underlying tort action. Although no supersedeas security was filed, as required by Pa.R.A.P. 1731, appellant claims it falls under the “party acting in a representative capacity” exemption under Pa.R.A.P. 1736(a)(3). We do not agree that appellant’s status as defendant’s insurer constitutes a “representative capacity.” Therefore, we affirm the order of the trial court.

Generally, a party appealing an order involving solely a monetary award may obtain an automatic supersedeas by filing appropriate security equalling 120% of the amount found due and unpaid. Pa.R.A.P. 1731. However, under Pa.R.A.P. 1736,

[n]o security shall be required of:
(1) The Commonwealth or any officer thereof, acting in his official capacity.
(2) Any political subdivision or any officer thereof, acting in his official capacity.
(3) A party acting in a representative capacity.
(4) A taxpayer appealing from a judgment entered in favor of the Commonwealth upon an account duly settled when security has already been given as required by law.
(5) An appellant who has already filed security in a lower court, conditioned as prescribed by these rules for the final outcome of the appeal.
(b) Supersedeas automatic. Unless otherwise ordered pursuant to this chapter the taking of an appeal by any party specified in Subdivision (a) of this rule shall operate as a supersedeas in favor of such party.

Appellant argues that as an agent and fiduciary of defendant, it is exempt as a “party acting in a representative capacity.” Pa.R.A.P. 1736(a)(3). Therefore, appellant concludes that it is entitled to an automatic supersedeas and that the garnishment action and its consequent judgment are improper.

In finding that appellant does not enjoy a Rule 1736 exemption, we look at the purpose of Rule 1736 and examine the other categories of exemptions under the Rule. Under Rule 1736(a)(1) and (a)(2), the Commonwealth, political subdivisions, and their respective officers acting in their official capacities, need not supply security. Obviously, a party awarded a judgment against governmental entities and their duly authorized agents can be certain that such judgment debtors will not become judgment proof while an appeal is pending. Under Rule 1736(a)(4) and (a)(5), parties who for various reasons have already filed security need not file an additional bond. Again, the party awarded a judgment below is assured that the judgment will be satisfied if the judgment is affirmed on appeal.

The purpose of these limited exemptions is clear. As long as the judgment is already adequately protected, additional security is not required pending the outcome of an appeal. In the case sub judice, we must determine whether appellant, an insurance company, was intended by the drafters of Rule 1736 to enjoy the exemption of a “party acting in a representative capacity.”

Although the expression “representative capacity" is not defined by Rule 1736, the clear precept uniting the enumerated Rule 1736 exemptions is that an appellant is excused from posting security for an appealed judgment only when the judgment winner is otherwise assured that the appellant will not be judgment proof after an unsuccessful appeal. Therefore, the types of representative capacity contemplated as Rule 1736 supersedeas security exemptions are those where there already exists a reliable guarantee of indemnification by the representative. For example, since they are statutorily required to file bonds as a condition of their being approved as personal representatives, guardians and trustees inter alia would be excused under Rule 1736 from posting added security during the pendency of an appeal. See 20 Pa.C.S. §§ 3171, 5121, & 7111.

In contrast, appellant is under no duty to post security and thus prevent itself from becoming judgment proof. Therefore, to assure that appellant will be able to satisfy the adverse judgment if appellant unsuccessfully appeals the underlying tort action, appellant is required to post security. To permit appellant to dispense with the obligation of filing supersedeas security before it pursues its appeal is to contravene the policy of Rule 1736, which assures satisfaction of judgments to appellees. We conclude appellant is not a “party acting in a representative capacity,” as contemplated by Rule 1736, and therefore, the trial court did not err.

Appellant’s final contention is that, due to certain acts by appellees, they are estopped from claiming appellant was not acting in a representative capacity. However, the acts alleged by appellant are not of record, and in fact do not involve appellees.

The order of the trial court is affirmed.


text:
    494 A.2d 869
    COMMONWEALTH of Pennsylvania, Appellant, v. Gerard HEALEY, Appellee.
    Superior Court of Pennsylvania.
    Submitted March 25, 1985.
    Decided June 21, 1985.

      Paul J. Walker, Assistant District Attorney, Scranton, for Commonwealth, appellant.
    James O’Brien, Assistant Public Defender, Scranton, for appellee.
    Before BECK, POPOVICH and TROMMER , JJ.

       Honorable Evelyn Trommer, Senior Judge of the Court of Common Pleas of Philadelphia County, is sitting by designation.

   BECK, Judge:

Appellee was convicted of aggravated assault and recklessly endangering another person. On this appeal by the Commonwealth, we are asked to determine under what circumstances a defendant visibly possesses a firearm, so as to come within the provisions of the mandatory sentencing requirement of section 9712 of the Sentencing Code, 42 Pa.C.S. § 9712.

The relevant facts are as follows. The victim received a call from a friend who told him appellee wanted to see him.

The victim went to appellee’s apartment house, climbed the stairs to appellee’s apartment, knocked on the door, and appellee fired a shotgun blast through the apartment door, hitting the victim and causing him injuries.

After the appellee was convicted, the Commonwealth sought to have him sentenced under Section 9712:

(a) Mandatory sentence. — Any person who is convicted in any court of this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery as defined in 18 Pa.C.S. § 3701(a)(l)(i), (ii) or (iii) (relating to robbery), aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) (relating to aggravated assault) or kidnapping, or who is convicted of attempt to commit any of these crimes, shall, if the person visibly possessed a firearm during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary.

(Emphasis added.)

At his sentencing hearing, appellee argued that since he shot the victim from behind a closed door, he did not visibly possess a firearm because the victim did not see the firearm. The trial judge sentenced appellee to two and one-half (2V2) to five (5) years imprisonment, a term below the statutory mandate of section 9712. The Commonwealth appeals the judgment of sentence.

To determine the scope of section 9712, we must define “visibly possessed.” Appellee would have us hold that the victim must see the firearm brandished by his assailant. We decline to construe section 9712 so narrowly in contravention of the purpose of the section.

It is clear that section 9712 was enacted to deter the introduction of a firearm into the criminal acts specified in the statute. It is the potential danger of the firearm which section 9712 addresses, not just the visibility of the firearm. Under appellee’s definition of “visibly possessed,” a defendant who robs a victim while pointing a firearm at the victim’s chest would be subject to a mandatory sentence, but one who points a firearm at a victim’s back and robs him from behind would escape a mandatory sentence. Such a result would be absurd.

We define “visibly possessed” as possession which manifests itself in the process of the crime. This definition would include situations where a firearm is visible to the eye of the victim or a third party. Additionally, it would encompass situations where, as in the case sub judice, a firearm is hidden but has a visible effect on the victim. In the latter context, our definition would cover an individual who points a firearm inside his pocket and then threatens his victim by informing the victim that a firearm is aimed at the victim.

In the case sub judice, it does not matter that the victim could not see that appellee was visibly possessed of the firearm. The appellee possessed a firearm and used it to produce a visible effect on the victim. The appellee’s act falls squarely under the mandatory minimum five-year sentence of 42 Pa.C.S. § 9712.

We vacate appellee’s judgment of sentence and remand for resentencing. Jurisdiction relinquished.


author: WATKINS, Judge:

text:
    494 A.2d 1107
    Melvin T. MOORE v. Bernadette C. SMITH, Appellant.
    Superior Court of Pennsylvania.
    Argued March 6, 1985.
    Filed May 17, 1985.
    Reargument Denied July 12, 1985.
    Petition for Allowance of Appeal Denied Dec. 16, 1985.

      Spencer Ervin, Jr., Philadelphia, for appellant.
    Abe Lapowsky, Philadelphia, for appellee.
    Before ROWLEY, WATKINS and GEISZ, JJ.

       The Honorable John A. Geisz, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   WATKINS, Judge:

On March 2, 1981, the appellee, Melvin T. Moore, purchased 4704 Wayne Avenue, Philadelphia, PA at a Sheriff’s Tax Sale in Philadelphia County after judgment had been entered on a tax lien that had been filed by the City of Philadelphia. The Sheriff and Philadelphia County executed a deed on March 9, 1981 which conveyed the property to appellee.

Appellant, Bernadette C. Smith, was the former owner of the property. It is undisputed that the appellant was neither served with nor received notice of the tax lien action in which judgment was entered against her and upon which the Sheriffs sale was based. Further, it is undisputed that the claim for registered taxes against the appellant contains no notation or indication that notice of the assessment or lien was given to appellant. It is also conceded that the appellant was never personally served with nor received notice of the Writ of Execution upon which the judgment was based.

Appellant continued to occupy the property after the conveyance of the property to the appellee. On June 17, 1982 appellee filed a complaint in ejectment against appellant. On October 12, 1982 appellant filed an Answer and New Matter alleging that the judgment on which the Sheriffs Sale occurred was void in that no notice of the Sheriffs Sale was given to appellant and so the sale was a nullity. Appellee filed a Reply to the New Matter. Subsequently both parties filed Motions for Summary Judgment. On December 22, 1983 the lower court issued an order granting appellee’s Motion for Summary Judgment and denying appellant’s Cross Motion for Summary Judgment. This appeal followed.

Appellant presents one question on appeal: Is a Sheriff’s Sale to enforce a municipal tax lien void when the taxpayer was neither served with nor received notice of either the filing of the tax lien or the Writ of Execution upon which the judgment was based?

Appellant argues that she has been deprived of her property by a Sheriff’s Sale without notice or an opportunity to be heard. Appellant contends that the Fourteenth Amendment to the United States Constitution requires personal service of a written notice prior to a Sheriffs Sale and that to the extent 53 P.S. § 7283 provides to the contrary, it cannot be given effect. Appellant accordingly argues that since appellee claims title under a void Sheriff’s Sale, his complaint in ejectment should have been dismissed.

Under the Municipal Claims and Tax Liens Act, 53 P.A. § 7101, et seq., real estate taxes imposed by the City are a first lien against a property dating back to the moment the assessment is made (53 P.S. § 7102). These liens are given the effect of a judgment only after docketing with the prothonotary (53 P.S. 7106(b)).

The Act contains no provision for notifying a property owner or any other interested party prior to the filing of tax lien. As the trial court stated in its opinion this provision of the Act was held to be constitutional citing Sager v. Burgess, 350 F.Supp. 1310 (E.D.Pa.1974) and Winpenny v. Krotow, 574 F.2d 176 (3rd Cir.1978).

The Court in Winpenny had determined that the procedure was proper because there is no deprivation of the use of the debtor property. Therefore, the lack of notice prior to the filing of the tax lien would not serve to void the Sheriffs Sale.

The Act provides that in order for the City to execute on such a lien it must follow the requirements of the Act (53 P.S. 7106(c)). The Act requires that the City petition the Court for leave to expose a tax delinquent property to tax sale. All interested parties of record, including the property owner, must be served in the manner provided in the Act for service of writs scire facias as well as contemporaneous publication. (53 P.A. § 7283(d))

The manner of service of writs of scire facias is found at 53 P.S. § 7186. That Section requires that the property be posted with a copy of the writ in all cases and also that the Sheriff attempt to personally serve “as in the case of a summons, such of those named in the writ, or added thereto, as may be found in the county in which the writ is issued.” (53 P.S. 7186(a))

Only when the Sheriff cannot find the owner at his last known address is alternate service made. The Act requires that alternate service is to be by publication of a brief notice of the writ once a week for three successive weeks in one newspaper of general circulation and in the legal periodical. (53 P.S. 7186(c))

It is uncontested that the Sheriff posted the premises after finding it vacant, attempted to serve the property owner at her last known address and when appellant could not be found, completed service by publishing notice in one newspaper of general circulation and in the legal publication.

It is apparent that the City complied with all of the notice requirements of the Act. Therefore, appellant’s defense to the ejectment proceeding, that the sale was void and a nullity must be based upon the alleged unconstitutionality of the Act itself.

Appellant, in her brief, by implication, raises the constitutionality of the notice provision of the Act. However, she neither raised the constitutionality of the notice provision of the Act in the lower court nor did she give notice that she was raising the constitutionality of the Act to the Attorney General as required by Rule 235 of Pa.R.C.Pro. It is a well established principle that the failure to raise the constitutionality of a statute in the lower court causes a waiver of that issue and that issue will not be considered by the Court on appeal. Feld v. Merriam, 314 Pa.Superior Ct. 414, 461 A.2d 225 (1983).

Order affirmed.


author: HOFFMAN, Judge:

text:
    494 A.2d 1109
    Michael CHICARELLA, Appellant, v. Frank S. PASSANT, Michael P. Vincent, Ralph R. Passant, Business Information Company, State Automobile Mutual Insurance Company, Beverly Petrone and South Side Hospital. (Two cases)
    Superior Court of Pennsylvania.
    Argued March 19, 1985.
    Filed May 17, 1985.
    Reargument Denied July 15, 1985.

      David L. Schwartz, Pittsburgh, for appellant.
    Gerard J.A. Cipriani, Pittsburgh, for Passant, appellees.
    David R. Johnson, Pittsburgh, for Petrone, appellees.
    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:

Appellant contends that the lower court erred in granting appellee’s preliminary objections and motion for summary judgment. We affirm in part and reverse in part.

In September, 1982, appellant filed a complaint alleging that an insured under a policy issued by defendant, State Automobile Mutual Insurance Company, had struck appellant with his automobile. The insured denied that the accident had occurred. Therefore, because appellant’s credibility appeared to be at issue, the insurance company hired Business Information Company (BIC) to investigate appellant’s work history, physical condition, and community standing. As part of their investigation, BIC’s employees researched appellant’s criminal record and obtained information regarding his visits to South Side Hospital from Beverly Petrone, the hospital’s credit manager. Appellant obtained BIC’s report to the insurance company in the course of discovery regarding his personal injury claim.

In the instant action, filed December 1, 1983, appellant seeks to recover damages from appellees, BIC and its employees, alleging that (1) their report contained defamatory statements, and (2) their efforts to investigate appellant’s hospital records constituted an invasion of privacy. He also seeks damages from appellees, Ms. Petrone and South Side Hospital, alleging that (1) Ms. Petrone made defamatory remarks about appellant, and (2) her release of information to BIC’s employees was an invasion of privacy.

On January 13, 1984, BIC and its employees filed preliminary objections in the nature of a demurrer. On February 3, the lower court granted the preliminary objections, dismissing the defamation claim for lack of publication and the invasion of privacy claim due to failure to plead legally cognizable damages. On May 23, 1984, Ms. Petrone and South Side Hospital filed a motion for summary judgment which was granted on June 13, 1984. The lower court held that (1) appellant had failed to allege special damages and (2) the allegedly defamatory statements were true. These consolidated appeals followed.

A. Preliminary Objections of BIC and its Employees

When reviewing a grant of a demurrer, all well-pleaded facts averred in the complaint are deemed admitted, and in order for the demurrer to be sustained, the complaint must indicate on its face that the claim cannot be satisfied and the law will not permit recovery. Rosenwald v. Barbieri, 501 Pa. 563, 566, 462 A.2d 644, 646 (1983), cert. denied, 465 U.S. 1024, 104 S.Ct. 1279, 79 L.Ed.2d 683 (1984).

Appellant’s complaint alleged first that the report prepared by BIC for the insurance company contained defamatory matter concerning appellant.

In an action for defamation, the plaintiff has the burden of proving, when the issue is properly raised:
(1) The defamatory character of the communication.
(2) Its publication by the defendant.
(3) Its application to the plaintiff.
(4) The understanding by the recipient of its defamatory meaning.
(5) The understanding by the recipient of it as intended to be applied to the plaintiff.
(6) Special harm resulting to the plaintiff from its publication.
(7) Abuse of a conditionally privileged occasion.

42 Pa.C.S.A. § 8343(a). Following the United States Supreme Court’s decision in Gertz v. Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), a private figure plaintiff must also prove negligence or wilful misconduct by the defendant. Hepps v. Philadelphia Newspapers, Inc., 506 Pa. 304, 323, 485 A.2d 374, 384 (1984). See also Restatement (Second) of Torts § 613 (1977) [hereinafter cited as Restatement].

In the instant case, the lower court held that BIC’s report to the insurance company did not constitute publication. See Lower Court Opinion of February 3, 1984 at 1. We disagree. Publication of defamatory matter is the intentional or negligent communication of such matter to one other than the person defamed. Gaetano v. Sharon Herald Co., 426 Pa. 179, 182, 231 A.2d 753, 755 (1967); Agriss v. Roadway Express, Inc., 334 Pa.Superior Ct. 295, 328, 483 A.2d 456, 463 (1984); Restatement § 577. Here, BIC’s report did communicate the allegedly defamatory matter to a third party, the insurance company.

However, a publisher of defamatory matter is not liable if the publication was made subject to a privilege, and the privilege was not abused. Restatement § 593. “Communications made on a proper occasion, from a proper motive, in a proper manner, and based upon reasonable cause are privileged.” Beckman v. Dunn, 276 Pa.Superior Ct. 527, 536, 419 A.2d 583, 587 (1980); see also Baird v. Dun & Bradstreet, Inc., 446 Pa. 266, 275, 285 A.2d 166, 171 (1971). An occasion giving rise to a conditional privilege occurs when (1) some interest of the publisher of the defamatory matter is involved; (2) some interest of the recipient of the matter, or a third party, is involved; or (3) a recognized interest of the public is involved. Beckman v. Dunn, supra, 276 Pa.Superior Ct. at 536, 419 A.2d at 587. Although the defendant in a defamation action ordinarily bears the burden of establishing a privilege to publish defamatory matter, 42 Pa.C.S.A. § 8343(b)(2), where a conditional privilege is evidenced, as here, in the plaintiffs complaint, the plaintiff will be nonsuited unless he can prove abuse of the privilege. Baird v. Dun & Bradstreet, Inc., supra, 446 Pa. at 275, 285 A.2d at 171; Rankin v. Phillippe, 206 Pa.Superior Ct. 27, 32, 211 A.2d 56, 58 (1965).

In the instant case, the insurance company’s interest in paying only legitimate claims was raised by appellant’s personal injury action. It is also in society’s best interest for valid insurance claims to be ascertained and fabricated claims exposed. Forster v. Manchester, 410 Pa. 192, 197, 189 A.2d 147, 150 (1963). Although no Pennsylvania case has held that an investigator’s report to an insurance company is a conditionally privileged occasion, we find support for this privilege in two similar situations. In Baird v. Dun & Bradstreet, Inc., supra, our Supreme Court held that a credit reporting agency has a conditional privilege to publish defamatory matter, provided that the publication is made in response to a request. 446 Pa. at 274-75, 285 A.2d at 171. The basis for the privilege is that the subscriber who requests information from a credit agency has a legitimate business interest in the information gathered by the agency. In Campbell v. Willmark Service System, Inc., 123 F.2d 204 (3d Cir.1941), the owner of a chain of stores hired the defendant to inspect the stores and report on the results of the inspection. During the course of the inspection, the defendant discovered that the plaintiff was violating store rules and reported these violations to the owner and the manager of the store where the plaintiff worked. The court held that defendant’s publications of the plaintiff’s violations to both the manager and the owner were privileged because of the recipients’ interest in the information published. Here, as in Baird and Campbell, the publication of information collected by a defendant at the request of a party with an interest in the information should be privileged. We therefore find that BIC’s report to the insurance company constituted a conditionally privileged publication.

Thus, in order to recover, appellant must show that BIC abused the conditional privilege.

Abuse of a conditional privilege is indicated when the publication is actuated by malice or negligence, Baird v. Dun & Bradstreet, Inc., supra, is made for a purpose other than that for which the privilege is given, Rankin v. Phillippe, supra, or to a person not reasonably believed to be necessary for the accomplishment of the purpose of the privilege, id., or includes defamatory matter not reasonably believed to be necessary for the accomplishment of the purpose. See Restatement (Second) Torts § 599 (1976).

Beckman v. Dunn, supra, 276 Pa.Superior Ct. at 537, 419 A.2d at 588 (footnote omitted). After reviewing appellant’s complaint, we find that it does not allege facts which, if proved, would demonstrate abuse of the conditional privilege.

Appellant also contends that the efforts of BIC’s employees to obtain information concerning his visits to the hospital were an invasion of privacy. According to BIC’s report, which is attached to the complaint, BIC’s investigators “utilized a pretext” to talk with the hospital’s credit manager and secure the records she had of appellant’s outpatient treatments. These records apparently contained a brief summary of appellant’s medical complaint, diagnosis, and charge for each visit. They revealed that between October, 1981 and November, 1982 appellant was treated for bronchitis, hematemisis, a shoulder injury, and a series of migraine headaches.

Our Court has adopted the definition of the tort of invasion of privacy promulgated by the Restatement §§ 652B-E. Harris v. Easton Publishing Co., 335 Pa.Superior Ct. 141, 153, 483 A.2d 1377, 1383 (1984). Section 652B of the Restatement provides:

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

Here, appellant’s complaint alleges that BIC’s employees intentionally intruded upon his private affairs by securing the hospital’s records. However, liability will not attach to that act unless the intrusion is substantial and highly offensive to a reasonable person. Harris v. Easton Publishing Co., supra, 335 Pa.Superior Ct. at 154, 483 A.2d at 1383-84; Restatement § 652B comment d. In the instant case, we find that appellant has not pleaded sufficient facts to establish a substantial intrusion of a highly offensive nature. Cf. Nagy v. Bell Telephone Co., 292 Pa.Superior Ct. 24, 436 A.2d 701 (1981) (act of obtaining from telephone company a list of telephone numbers dialed long distance from subscriber’s phone was not a highly offensive act to which liability would attach). The brief descriptions of appellant’s medical treatment cannot be deemed a substantial intrusion. Furthermore, the information disclosed by the hospital records is not of the sort which would “cause mental suffering, shame or humiliation to a person of ordinary sensibilities.” Hull v. Curtis Publishing Co., 182 Pa.Superior Ct. 86, 99, 125 A.2d 644, 646 (1956), quoting Smith v. Doss, 251 Ala. 250, 252-53, 37 So.2d 118, 120-21 (1948). Clearly, the conduct of BIC and its employees falls short of this standard.

B. Motion for Summary Judgment by Beverly Petrone and South Side Hospital

When reviewing the grant of summary judgment, the court must accept as true all well-pleaded facts in the non-moving party’s pleadings and give the non-moving party the benefit of all reasonable inferences to be drawn therefrom. In order to uphold a grant of summary judgment, the record must demonstrate both an absence of genuine issues of material fact and an entitlement to judgment as a matter of law. Curry v. Estate of Thompson, 332 Pa.Superior Ct. 364, 366, 481 A.2d 658, 659 (1984). See also Pa.R.Civ.P. 1035(b).

Appellant’s complaint alleges that Ms. Petrone made defamatory statements to BIC’s employees as follows: ;

(a) By falsely describing and labeling Plaintiff as ... “obnoxious, a smart aleck, and ‘locally known as being a man who has ‘ladies of the night’, and a ‘pimp’
(b) By falsely stating that he ... “has several outpatient treatments here at the hospital at least since 1981, none of which he has paid for ..;
(c) By falsely stating that ... “it is common knowledge that (plaintiff) runs or has a stable of women and is a ‘pimp’ ...”.

See Complaint at 9. In her response to appellant’s interrogatories and her affidavit in support of the motion for summary judgment, however, Ms. Petrone stated

I know specifically that I did not make all of the comments which are quoted in the complaint or on pages 10 and 11 of Exhibit “A”. I do not know whether any of the alleged quotes are accurate but I do know for certain that many of the alleged quotes were not spoken by me.

See Answers to Interrogatories Directed to Beverly Petrone at # 4; Affidavit of Beverly Petrone at 4. We believe that these conflicting allegations by the parties create a genuine issue of material fact, that is, whether Ms. Petrone actually made the defamatory statements. Accordingly, we find that the motion for summary judgment was improperly granted on the defamation claim.

Appellant also argues that Ms. Petrone’s release of his hospital records to BIC’s employees constituted an invasion of privacy. As discussed above, we find that appellant has not alleged facts sufficient to show a substantial, highly offensive intrusion as required by Restatement § 652B or to show the extent of publicity necessary to state a cause of action under Restatement § 652D. We therefore hold that summary judgment was properly granted on this count.

For the foregoing reasons, we affirm the grant of the demurrer of BIC and its employees to appellant’s defamation and invasion of privacy claims. While we also find that the motion for summary judgment filed by Ms. Petrone and South Side Hospital was properly granted with regard to appellant’s count alleging invasion of privacy, we hold that summary judgment should not have been granted on the defamation count. Therefore, we reverse and remand for further proceedings on that issue.

Order of February 3, 1984 is affirmed. Order of June 13, 1984 is affirmed in part, reversed in part, and remanded for further proceedings. Jurisdiction is not retained.

      . State Automobile Mutual Insurance Company is not a party to this appeal.

      . Appellant’s complaint alleges that Frank S. Passant, Michael P. Vincent, and Ralph R. Passant are the BIC employees who performed the investigation and made the report to the insurance company.

      . Appellant also argues that he has a cause of action for invasion of privacy as defined in Restatement § 652D, which provides:
      One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that
      (a) would be highly offensive to a reasonable person, and
      (b) is not of legitimate concern to the public.
      However, as the Restatement and our caselaw make clear, the publicity required by this section is that the matter be communicated to the public at large, not merely to a few persons. See Harris v. Easton Publishing Co., supra, 335 Pa.Superior Ct. at 154, 483 A.2d at 1384; Restatement § 652D comment a. Here, appellant’s complaint does not allege communication of defamatory matter to anyone other than the insurance company.

      . The lower court granted summary judgment on the grounds that (1) appellant failed to plead special damages and (2) appellees had proved the truth of the allegedly defamatory statements by submitting evidence that appellant had not paid his hospital bills and had been convicted in 1980 of transporting women across state lines for the purpose of prostitution. We note first that slander per se (words imputing a criminal offense, a loathsome disease, business misconduct, or serious sexual misconduct) is actionable without proof of special harm. See Restatement § 570; cf. Agriss v. Roadway Express, Inc., 334 Pa.Superior Ct. 295, 312-15, 483 A.2d 456, 468-71 (1984) (reviewing relationship between libel and slander). Furthermore, in order to prove the truth of a defamatory statement as a defense to a defamation action, the defendant must prove that it is substantially true. Kilian v. Doubleday & Co., Inc., 367 Pa. 117, 123, 79 A.2d 657, 660 (1951). "However, if the charge is one of persistent misconduct, the committing of a single instance of that conduct is not enough unless the instance is such as to imply its repetition.” Restatement § 581A comment c. Here, proof that appellant was once convicted of transporting women for the purpose of prostitution would not be sufficient to prove that he was engaged in an ongoing effort to promote prostitution.


author: CAVANAUGH, Judge:

text:
    494 A.2d 1115
    Richard HAEFNER, Appellant, v. Richard A. SPRAGUE, Edward H. Rubenstone, Sprague and Rubenstone, A Partnership, Jack L. Gruenstein, Michael Minkin, Julie T. Barsel.
    Superior Court of Pennsylvania.
    Argued April 4, 1985.
    Filed June 14, 1985.

      Richard Haefner, in propria persona.
    Gene E.K. Pratter, Philadelphia, for appellees.
    Before CAVANAUGH, OLSZEWSKI and HOFFMAN, JJ.
   CAVANAUGH, Judge:

At issue in this pro se appeal by Richard Haefner is whether the trial court properly granted preliminary objections thereby striking appellant’s complaint on the basis that the previous entry of a judgment of non pros for failure to file a complaint on the same cause of action barred the filing of a new complaint.

PREVIOUS HISTORY

Appellant, Richard Haefner, acting pro se, commenced a legal malpractice action by summons against appellee, attorneys, in August of 1983. He was thereafter served with a rule to file a complaint within twenty days. Haefner failed to file a complaint within that period of time, but did file an “Answer” to the rule, stating his desire to conduct discovery in aid of his preparation of a complaint, and seeking time to find an attorney to represent him. Appel-lees filed a praecipe to enter a judgment of non pros. Thereafter, appellant filed his complaint but, upon preliminary objections, the complaint was stricken. Haefner’s petition to open the judgment of non pros was subsequently denied on May 24, 1984. On appeal to this court, a panel majority affirmed the order of the trial court. Haefner v. Sprague, No. 1873 Philadelphia, 1984 (Pa.Super.Ct. filed April 4, 1985). Meanwhile, Haefner had instituted the present action by summons in April of 1984, followed by a Complaint filed June 5, 1984 an “Amended Complaint” on July 6, 1984, and a “Reinstated Amended Complaint” on July 25, 1984. The present appeal is from the court’s order on preliminary objections dated September 17, 1984 which struck the complaints.

DISCUSSION

The decision of the trial court and appellees’ brief on appeal rely upon a single decision of this court for authority that the new complaint could not be filed. Bon Homme Richard, Etc. v. Three Rivers Bank, 298 Pa.Super. 454, 444 A.2d 1272 (1982). In that case, a panel majority affirmed an order which dismissed a complaint under Allegheny County Local Rule 229(e). The court held that under authority of International Telephone and Telegraph Corp. v. Philadelphia Electric Co., 250 Pa.Super. 378, 378 A.2d 986 (1977) the claimant failed to either seek permission to bring a second action or to properly reactivate the complaint which had been dismissed under the local rule. Indeed, in International Telephone, supra, the court adopted an “open judgment” standard for reactivation of complaints which were dismissed for unreasonable inactivity. Thus, in such situations it must be shown that: (1) the petition [for reactivation] is timely filed; (2) the reason for default [inactivity] is reasonably explained; and, (3) facts constituting a meritorious cause of action be alleged. The Bon Homme court found that the appellant there had failed to seek permission to file a second complaint or reactivate the previous complaint and, hence, dismissed the complaint. Indeed, therefore, if Bon Homme, supra, applies to the present action, the dismissal by the court below was proper since Haefner did not successfully seek to reactivate under the International Telephone and Telegraph standard nor did he seek permission to file a second complaint. We find the International Telephone and Telegraph and Bon Homme line of cases, however, to be inapposite. These cases are matters which were dismissed pursuant to local rules of court adopted pursuant to Pennsylvania Rule of Judicial Administration 1901. That rule, with its stated policy of promoting the prompt conclusion of matters pending in the judicial system, mandated the termination of matters which have “been inactive for an unreasonable period of time____” 1901(a). Each court of common pleas is thus directed to make local rules for the implementation of the policy. As a “minimum standard” Rule 1901 provides that each party be given at least thirty days notice of opportunity for hearing on the proposed termination and if notice is given by publication matters may be reinstated for good cause shown. Accordingly, local rules enacted pursuant to Rule 1901 are intended to reach cases inactive for an unreasonable length of time, and may only be dismissed after reasonable notice. It would follow that reinstatement may be permitted only after meeting an open judgment standard of promptness and merit, otherwise the policy of terminating stale claims as enunciated by Rule 1901 and implemented by local rules would be but an empty fulmination against stale matters pending in the judicial system. Haefner’s first "suit was not dismissed under any local rule applicable to inactive cases, however. Granted, it was dismissed for failure to timely file a complaint, but the delay by Haefner is measured in terms of months, not the kind of prolonged inactivity contemplated by Rule 1900; and, true enough, decided cases recognize this distinction.

In very similar circumstances, Gordon-Stuart, Ltd. v. Allen Shops, Inc., 239 Pa.Super. 35, 361 A.2d 770 (1976) a judgment of non pros was entered when plaintiff failed to comply with an order to file a more specific Complaint. More than two months thereafter plaintiff commenced a new action identical to the non prossed suit. This court reversed the trial court order stricking the second complaint. The court noted that plaintiff had tendered the costs incurred in the first action to the defendant and that the statute of limitations had not expired. Following the reasoning of Bucci v. Detroit Fire & Marine Ins. Co., 109 Pa.Super. 167, 167 A. 425 (1933), our court reversed the trial court and held:

In either instance, that is, where the plaintiff is non-prossed for neglecting to file a seasonable complaint, or failing to file an amended pleading, the judgment for the defendant is not on the merits and does not preclude the plaintiff from commencing another suit on the same cause of action, provided that the statute of limitations has not expired and the plaintiff has made payment for the costs of the former suit

Gordon-Stuart Ltd. v. Allen Shops, Inc., 239 Pa.Super. 35, 361 A.2d 770, 772 (1976).

The legal effect of the entry of a judgment of non pros is not such as to preclude a plaintiff who suffers such a judgment from instituting another suit on the same cause of action provided, however, that the second suit is brought within the period of the statute of limitations. Doner v. Jowitt and Rodgers Co., 299 Pa.Super. 492, 445 A.2d 1237 (1982). Accord: Commonwealth v. Bailey, 278 Pa.Super. 51, 419 A.2d 1351 (1980); Kulp v. Lehigh Valley Transit Co., 81 Pa.Super. 296 (1923); Murphy v. Taylor, 63 Pa.Super. 85 (1916); Derrickson v. The Colonial Trust Co., 17 Pa.D. 80 (1907); 7 Standard Pa. Practice 2nd § 39:97.

We find the latter line of cases to control the present situation and further note that there is no contention that Haefner has not offered to pay the costs of the non prossed complaint or that the statute of limitations has expired. Accordingly, the complaint is reinstated and the matter is remanded for further proceedings.

Reversed and remanded. Jurisdiction relinquished.

      . See, e.g., Thompson v. Cortese, 41 Pa. Commonwealth Ct. 174, 398 A.2d 1079 (1979), Commonwealth Department of Public Welfare v. Flowers, 46 Pa. Commonwealth Ct. 326, 407 A.2d 896 (1979); Chaplynsky v. Broad St. Hospital, 305 Pa.Super. 497, 451 A.2d 757 (1982); Faulks v. Papo Bar, Inc., 280 Pa.Super. 454, 421 A.2d 810 (1980).

      . See, e.q., Philadelphia Court of Common Pleas Rule 130 which requires that a case be inactive for two years before being subjected to dismissal. Since most Rule 1901 dismissals for inactivity are ipso facto for cases where the statute of limitations has expired for purposes of a new action, the plaintiff is relegated to seeking reinstatement.

      . We note that Mr. Haefner was granted in forma pauperis status by order of Judge White on April 26, 1984.

      . In an apparent effort to cover all contingencies appellant has, in fact, filed a new Complaint, an "Amended Complaint” and a "Reinstated Amended Complaint.” Of course, the trial court may properly cause appellant to justify the multiplicity of actions or face appropriate dismissal.