author: JOHNSON, Judge. HOFFMAN, Judge,

text:
    595 A.2d 617
    COMMONWEALTH of Pennsylvania v. Juan SANCHEZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 28, 1991.
    Filed Aug. 2, 1991.

      Floyd P. Jones, York, for appellant.
    Christy Haas Fawcett, Asst. Dist. Atty., Hanover, for the Com., appellee.
    Before POPOVICH, JOHNSON and HOFFMAN, JJ.
   JOHNSON, Judge.

A jury convicted Juan Sanchez of possession of cocaine with intent to deliver and of criminal conspiracy. The Honorable John F. Rauhauser, Jr. imposed a mandatory, minimum sentence of three to six years’ imprisonment and a mandatory fine of $15,000. On this direct appeal from judgment of sentence, Sanchez raises a single issue: Were the several references to Sanchez as an “illegal alien” inadmissible statements of unrelated, prior criminal activity which, by virtue of their prejudicial impact, required that a mistrial be granted?

We determine that the evidence permitted the jury to improperly conclude that Sanchez had engaged in prior criminal conduct. Also, we find the statements to have been irrelevant. We conclude, nevertheless, that the introduction of the testimony of Sanchez’ immigration status was harmless when viewed in the light of the entire record. Accordingly, we affirm the judgment of sentence.

The trial lasted one and one-half days, including jury deliberation of less than one hour. During the assistant district attorney’s opening statement to the jury, while previewing the first portion of the Commonwealth’s case, the following transpired:

MS. FAWCETT [ASST.D.A.]: ... .He [Sanchez] also told Officer Concepcion that he was an illegal alien and had come here from the Dominican Republic.
MR. JONES [ASST.P.D.]: Your Honor, can we approach the Bench?
* * * * * *
(Whereupon the following discussion was held on the record at sidebar:)
MR. JONES: We would move for a mistrial based on her reference to the fact that he allegedly said that he was an illegal alien which has no bearing on this case whatsoever.
THE COURT: The motion is denied.....

Transcript of Proceedings, January 8, 1990, page 9. Later the same morning, near the conclusion of the direct examination of the third witness, City of York Police Officer Ed Concepcion, the following occurred:

BY MS. FAWCETT:
Q. Continue, Officer Concepcion, but don’t continue there.
A. I . showed him the utility bill with his name and address of 42 College Avenue on it and I asked him if that was his and he said no. I asked him if Juan Sepeda was the same subject who ran out the back door and he said yes. I also asked Juan Sanchez if he was an illegal alien—
MR. JONES: Objection.
THE WITNESS: And he said yes.
THE COURT: Overruled.
MR. JONES: I would request a mistrial.
THE COURT: Overruled.

Id. at page 37.

Sanchez contends that the trial court erred in denying his requests for a mistrial after the comments were made regarding his status as an illegal alien. Specifically, he argues that those statements connote prior criminal activity for which Sanchez was not being charged. He further contends that the prejudicial impact of the statements outweighed their probative value.

A recent formulation of the rule regarding the admissibility of evidence of distinct crimes is set forth by our supreme court in Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835 (1989), where Justice Larsen declared:

Evidence of a defendant’s distinct crimes are not generally admissible against a defendant solely to show his bad character or his propensity for committing criminal acts, as proof of the commission of one offense is not generally proof of the commission of another. However, this general proscription against admission of a defendant’s distinct criminal acts is subject to numerous exceptions where special circumstances exist which render such evidence relevant for some legitimate evidentiary reason and not merely to prejudice the defendant by showing him to be a person of bad character. Some of the exceptions that this Court has recognized in the past as legitimate bases for admitting evidence of a defendant’s distinct crimes include (but are not limited to): (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one naturally tends to prove the others; (5) to establish the identity of the person charged with the commission of the crime on trial where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other; (6) to impeach the credibility of a defendant who testifies in his trial; (7) situations where defendant’s prior criminal history had been used by him to threaten or intimidate the victim; (8) situations where the distinct crimes were part of a chain or sequence of events which formed the history of the case and were part of its natural development (sometimes called “res gestae” exception).
Of course, the admissibility of evidence is a matter addressed to the sound discretion of the trial court and an appellate court may only reverse rulings on admissibility upon a showing that the lower court abused its discretion. As with any evidentiary ruling, the trial court should balance the relevancy and evidentiary need for the evidence of distinct crimes against the potential for undue prejudice.

521 Pa. at 177, 555 A.2d at 840. (Emphasis in original, citations omitted).

In support of the claimed admissibility of the two statements regarding Sanchez’ immigration status, the Commonwealth first looks to Commonwealth v. Bova, 180 Pa.Super. 359, 119 A.2d 866 (1956). There, a police officer was permitted to testify to a statement voluntarily made by one of three co-defendants in a burglary prosecution who had gotten out of a car, walked over to where the police officer had arrived in front of the building being burglarized, and blurted out his claim of innocence and ignorance of any wrongdoing, including his being on parole. We there held that the statement was not admitted for the purpose of showing other distinct crimes but “as a part of the entire action.” Id., 180 Pa.Superior Ct. at 363-64,119 A.2d at 868. We there relied upon Commonwealth v. Davis, 363 Pa. 91, 69 A.2d 123 (1949), which found admission of testimony concerning the defendant’s prior prison service to be harmless, after finding that a timely objection had not been made, the trial court had provided a cautionary instruction following the belated objection, and the evidence was part of an unrepudiated confession.

Since its publication in 1956, the case of Commonwealth v. Bova, supra, has never been cited for the proposition that statements that constitute “part of the entire action” may be admissible. Moreover, the Davis case, upon which the Bova court relied, involved review of an evidentiary instance where the trial judge had advised the jury following a recess that, had a timely objection been made, he would not have permitted an answer regarding the defendant’s alleged fugitive status. We therefore find Bova to be inadequate to support admission of the testimony here under review.

Based upon the Commonwealth’s references to Sanchez’ status as an illegal alien, the jury could reasonably infer that Sanchez had engaged in illegal conduct in the past. It would be reasonable for a jury to infer, upon hearing that Sanchez was in this country “illegally”, that he had engaged in prior criminal conduct. Thus, there was the danger that the jury would be predisposed to think of Sanchez as guilty. Commonwealth v. Knapp, 374 Pa.Super. 160, 542 A.2d 546 (1988).

In addition, Sanchez’ status as an illegal alien was completely unrelated to the charges upon which he was being tried. There was no suggestion, at trial, that his status was connected to the crimes at issue. In spite of this, the Commonwealth attempts to argue on appeal that Sanchez’ admission concerning his status as an illegal alien was relevant and probative to show intent. We reject this contention.

Specifically, the Commonwealth argues that Sanchez’ “status as an illegal alien was highly probative of his criminal intent because the jury could infer that one who enters this country illegally is often likely to have some illicit motive for doing so.” Brief for Appellee at page 8. There is no evidence in the record to support such an assertion. We find no connection whatsoever between a person’s status as an alien and that person’s propensity or desire to traffic in narcotics. The Commonwealth’s suggestion that those who enter this country illegally have some secondary criminal purpose is nothing more than dangerous speculation which we expressly reject. This sort of inference, which allows for a finding of guilt premised on a defendant’s supposed propensity to commit crime, is precisely the inference against which the rule set forth in Billa and Knapp is designed to guard.

We conclude that the reference to Juan Sanchez as an “illegal alien” should have been excluded from the trial because it was irrelevant and it allowed the jury to improperly conclude that Sanchez had engaged in prior criminal activity. This does not end the analysis, however. There is no per se rule requiring a new trial every time there is a reference to prior criminal activity. Commonwealth v. Wallace, 522 Pa. 297, 308, 561 A.2d 719, 724 (1989). Where the evidence establishing a defendant’s guilt is both overwhelming and uncontroverted, a reference that defendant’s prior criminal conduct may be found to be improper and yet harmless at most. Id., 522 Pa. at 308-309, 561 A.2d at 725.

Our supreme court, speaking through the Honorable James T. McDermott, has recently restated the rule governing a harmless error analysis:

Since this evidence was improperly admitted we must determine whether its admission constituted harmless error. The standard applied to determine whether an error is harmless is whether an appellate court is convinced beyond a reasonable doubt that the error is harmless.
An error may be harmless where the properly admitted evidence of guilt is so overwhelming and the prejudicial effect of the error is so insignificant by comparison that it is clear beyond a reasonable doubt that the error could not have contributed to the verdict. Furthermore, in applying the overwhelming evidence test to determine if an error is harmless a court may rely only on uncontradicted evidence.

Commonwealth v. Duffey, 519 Pa. 348, 365-366, 548 A.2d 1178, 1186 (1988) (citations omitted).

Applying this rule to the facts in this case, we have no difficulty in finding the evidence of guilt so overwhelming and the prejudicial effect of the error so insignificant by comparison that we must conclude the error was harmless and the judgment of sentence should be affirmed. Commonwealth v. Wallace, supra, 522 Pa. at 308-309, 561 A.2d at 724-25.

Sanchez was convicted by a jury of possession of cocaine with intent to deliver and of conspiracy. All of the testimony presented went uncontradicted inasmuch as Sanchez presented no witnesses and did not testify himself.

Police testified that when they arrived at Sanchez’ residence to execute a search warrant, Sanchez answered the front door. During the search, officers found $240 on Sanchez’ person; several bags of cocaine inside a car battery with a false compartment; utility bills addressed to Sanchez at the address searched; additional cocaine inside an aerosol can with a false bottom, and drug records.

William Harrison, a co-defendant, testified that he was in Sanchez’ apartment for the purpose of purchasing an eighth of an ounce of cocaine from Sanchez. Harrison had given money to Sanchez for the drugs and Sanchez was in the process of obtaining the cocaine when police raided. Harrison also testified, without contradiction, that he had purchased drugs from Sanchez at that same address on two occasions approximately a week before police raided.

Joseph Murray testified that he, also, was present in Sanchez’ apartment at the time the police raided. He testified that he and Harrison had agreed to pool their money to purchase cocaine from Sanchez in order to obtain a better price. After Sanchez answered the door to his apartment, Murray handed him the money for the drugs and Sanchez sent another person to retrieve the cocaine from its hiding place. It was at this point that police entered the residence. Murray also testified to having purchased cocaine from Sanchez at the same residence the day before the police raided.

Detective John A. Daryman of the York City Police Department was qualified as an expert in the area of illegal drug transactions and testified that in his opinion, the person who possessed the drugs found in Sanchez’ apartment possessed them with intent to deliver. Prasad Dasgupta, a chemist with the Pennsylvania State Police Crime Lab, testified that the substance seized from Sanchez’ apartment was pure cocaine weighing over 61 grams.

None of this evidence has been challenged on this appeal. The sole argument advanced by Sanchez' is that, in spite of the overwhelming evidence of his guilt on both charges, the erroneous introduction of his own admission as being an illegal alien mandates a new trial. On these facts this would result in the creation and application of a per se rule which clearly would not be in accordance with Pennsylvania law. Commonwealth v. Wallace, supra, 522 Pa. at 308-309, 561 A.2d at 724 (citing Commonwealth v. Stephen Quintin Morris, 513 Pa. 169, 175-76, 519 A.2d 374, 376-77 (1986)); accord Commonwealth v. Kelvin Morris, 522 Pa. 533, 540-541, 564 A.2d 1226, 1229 (1989).

We recognize that the conclusion—that the properly admitted evidence is so overwhelming and the prejudicial effect of the error is so insignificant by comparison that it is clear beyond a reasonable doubt that the error is harmless,—is not to be arrived at lightly. Commonwealth v. Story, 476 Pa. 391, 413, 383 A.2d 155, 166 (1978), citing (Commonwealth v. Davis, 452 Pa. 171, 178-79, 305 A.2d 715, 720 (1973)). We also understand that the harmless error analysis is a two-step process, and that a reviewing court must first determine whether the untainted evidence, considered independently of the tainted evidence, overwhelmingly establishes the defendant’s guilt before it may proceed to consider whether the error was so insignificant by comparison that it could not have contributed to the verdict. Story, supra, 476 Pa. at 409, 383 A.2d at 166.

Sanchez does not even intimate on this appeal that the evidence of guilt was anything other than overwhelming. Turning then to the irrelevant references to Sanchez as an “illegal alien”, they occurred but twice during the trial. First, the prosecutor during her opening statement to the jury gave a detailed description of the statement that Sanchez had given to the police at the time of his arrest. This included Sanchez admitting to the police that he was an illegal alien and had come to the United States from the Dominican Republic. Defense counsel moved for a mistrial and it was denied. Later, Officer Concepcion testified to his conversation with Sanchez at the time of the latter’s arrest. Concepcion testified that he asked Sanchez if he was an illegal alien and Sanchez responded, “Yes.” Again, defense counsel moved for a mistrial, following a general objection, and that was denied.

In his brief, Sanchez advances only two assertions to support his claim that he was irreparably injured by the references to his illegal status within this country. At page 7 of his brief, Sanchez states:

Clearly, establishing that the appellant is “illegal”, Hispanic, and from the Dominican Republic can have nothing but a deleterious effect upon the members of the jury. Such evidence without question appeals to those qualities which a juror must leave behind when he fulfills his function as a juror.

At page 9 of his brief, Sanchez concludes by asserting:

Simple [sic] put, the Commonwealth chose to use prejudicial and non-relevant evidence in this case. Such evidence clearly created prejudice and animosity among the jury. Such tactics are not permissible, wherefore a new trial is mandated.

Sanchez through his brief has not applied the second step of the two-step process in the harmless error analysis: Were the two references to Sanchez’ alien status, both of which attributed that status to an admission by Sanchez to the arresting officer, of such a nature as to have contributed to the guilty verdict on the drug charges? Is there any possibility that, without the references to his alien status, Sanchez would have been found not guilty by the jury on the untainted evidence? Were the one reference during opening and the one reference during Concepcion’s testimony to the defendant’s immigration status of such quality or import that, by comparison to all of the testimony from at least five other witnesses, it would have contributed to the verdict causing the jury to move from a possible not guilty verdict to a guilty verdict? The answer to all three, or any one, of these questions must be in the negative.

This is not a case in which the credibility of the defendant, or of any defense witnesses, is a critical issue before the jury. Nor is it a case where a defense theory of misidentification may have been impeded by the introduction of improper testimony relating to prior crimes not involving dishonesty or false statement. Compare Commonwealth v. Williams, 524 Pa. 404, 573 A.2d 536 (1990). Sanchez was arrested in his apartment while in the process of completing the sale of cocaine to third persons. The uncontradicted testimony established his presence and control of substantial amounts of pure cocaine. The evidence was clear that Sanchez was working with another person in making his drug sales.

We find the evidence of guilt to be overwhelming. We find the isolated reference to Sanchez as an illegal alien to be totally inconsequential. We are convinced beyond a reasonable doubt that the introduction of the testimony of Sanchez’ immigration status was, at most, harmless. Accordingly, we affirm the judgment of sentence.

Judgment of sentence AFFIRMED. Jurisdiction relinquished.

HOFFMAN, J., files a dissenting statement.

HOFFMAN, Judge,

dissenting:

I respectfully note my dissent. I believe that the harmless error doctrine has been indiscriminately exaggerated and overextended. The jury here reasonably could have made the inference that appellant had engaged in prior criminal activity. Indeed, to the average juror the revelation that appellant was an “illegal alien” connotes malodorous and repugnant behavior. From those deliberate references to this unrelated and irrelevant criminal activity, the juror could derive appellant’s guilt. Therefore, I would find that the error was not harmless and that there was a reasonable possibility, even likelihood, that the references by the Commonwealth contributed to the conviction. See Commonwealth v. Story, 476 Pa. 391, 409, 383 A.2d 155, 166 (1978) (citation omitted). Accordingly, I would remand for a new trial.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    595 A.2d 623
    Barry W. KILMORE, Appellant, v. ERIE INSURANCE COMPANY and Blue Shield of Pennsylvania. Deborah L. PETERSEN, Appellant, v. USAA PROPERTY & CASUALTY INSURANCE CO. and Medical Service Assoc. of Pennsylvania, Inc., t/d/b/a Blue Shield.
    Superior Court of Pennsylvania.
    Argued June 12, 1991.
    Filed Aug. 19, 1991.

      David W. Knauer, Mechanicsburg, for appellants.
    Robert E. Kelly, Jr., Harrisburg, for appellee Erie Ins. Co.
    Bradford Dorrance, Harrisburg, for appellee Blue Shield.
    Danya Armenti-George, Philadelphia, for appellee USAA Property & Cas. Ins. Co.
    Before CIRILLO, TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

On application of counsel for appellee USAA Property and Casualty Insurance Company (“USAA”), these cases were listed consecutively for oral argument, and sua sponte this Court will address the merits of the cases simultaneously as they involve identical issues. As an initial matter, however, we will set forth briefly the facts which led to each of these appeals.

KILMORE

This appeal was taken from the Order of June 6, 1990, granting defendant/appellees’ motions for summary judgment and dismissing plaintiff/appellant’s complaint. On February 26, 1986, appellant Barry W. Kilmore sustained various injuries in an automobile accident, including a fractured and dislocated jaw. At the time of the accident, appellant was insured under an automobile insurance policy with appellee Erie Insurance Company (“Erie”) and a health insurance policy with appellee Medical Service Association of Pennsylvania, t/d/b/a Pennsylvania Blue Shield (“Blue Shield”). As required by the Motor Vehicle Financial Responsibility Law, the Erie policy provided up to $10,000 in first party benefits, as well as coverage beyond the $100,000 threshold for the Catastrophic Loss Fund (“CAT Fund”). The Blue Shield group policy, obtained through appellant’s employer, provided certain medical coverage for the gap between the $10,000 and $100,000 levels set by the Erie policy. The Blue Shield policy, however, contained certain specifically enumerated exclusions from coverage, including treatment of the jaw injury suffered by appellant, temporomandibular joint syndrome (“TMJ”). Appellant sought and received payment from Erie for the full $10,000 in first party benefits under his automobile policy, thus exhausting his medical coverage prior to any surgery to correct his TMJ.

On September 8, 1987, appellant filed a complaint on behalf of himself and his putative class against, inter alia, Blue Shield and Erie, alleging breach of contract, fraud and consumer violations in connection with his respective insurance policies. Appellant specifically alleged Blue Shield breached its obligations by failing to explain the terms of its group policy, including its contractual exclusion of TMJ treatment. Appellant also averred neither Blue Shield nor Erie explained the extent to which each company’s policy differed from the other. Appellant further sought to represent all policyholders who purchased Erie’s $10,000 first party benefit coverage, suffered loss and were subsequently denied coverage for injuries due to exclusions in their Blue Shield policies. Blue Shield and Erie each filed answers with new matter alleging appellant failed to state a cause of action, appellant lacked standing to assert his individual and class actions and appellant’s individual claims were not typical of those of his alleged class. Following the completion of discovery, Blue Shield and Erie each filed motions for summary judgment and dismissal of appellant’s complaint, which were granted by the Order of June 6, 1990.

PETERSEN

This appeal was taken from the August 30, 1990, Order sustaining the demurrer of appellee USAA and dismissing appellant Deborah L. Petersen’s amended complaint. On August 5, 1986, appellant sustained injuries in an automobile accident, including a fractured and dislocated jaw. At the time of her accident, appellant had automobile insurance with USAA and health insurance with Blue Shield. Appellant’s USAA policy provided $20,000 in first party benefits and coverage beyond the $100,000 CAT Fund threshold. Appellant’s Blue Shield policy was similar to appellant Kilmore’s in that it contained certain exclusions, among them one for treatment of TMJ. Appellant exhausted her $20,-000 of USAA coverage without receiving treatment for her TMJ, only to discover such treatment was excluded under the terms of her Blue Shield medical coverage.

On March 26, 1990, appellant filed an amended complaint in class action against USAA and Blue Shield, similar to that of appellant Kilmore, alleging breach of contract, fraud and violations of consumer protection law with respect to her insurance coverages, and setting forth the same class action allegations. USAA filed preliminary objections in the nature of a demurrer, which the trial court sustained, finding appellant had failed to state a cause of action against USAA because USAA had no general duty to review and advise appellant of the coverages and exclusions in her Blue Shield policy.

DISCUSSION

These appeals present this Court with the issues of whether an automobile insurance carrier has a duty to explain to its insured the extent and limits of its coverage and whether Blue Shield has a duty to inform an insured of its policy exclusions and their applicability to automobile accident cases.

On an appeal from the sustaining of preliminary objections in the nature of a demurrer, as well as the granting of a motion for summary judgment, our standard of review is essentially the same. We must accept as true all well-pleaded material facts set forth in the pleadings as well as all inferences reasonably deducible therefrom. Di-Marco v. Lynch Homes, 525 Pa. 558, 583 A.2d 422 (1990); Jefferson v. State Farm Insurance, 380 Pa.Super. 167, 551 A.2d 283 (1988). We will overturn the trial court’s decisions only if there has been an error of law or a clear abuse of discretion. McCain v. Pennbank, 379 Pa.Super. 313, 549 A.2d 1311 (1988). As we find no such error or abuse in these cases, we affirm the respective Orders of court.

The law in this Commonwealth with regard to the interpretation of a contract of insurance is clear and well settled.

The goal of [interpretation] is, of course, to ascertain the intent of the parties as manifested by the language of the written instrument. Where a provision of a policy is ambiguous, the policy provision is to be construed in favor of the insured and against the insurer, the drafter of the agreement. Where, however, the language of the contract is clear and unambiguous, a court is required to give effect to that language.

Standard Venetian Blind Co. v. Am. Empire Ins., 503 Pa. 300, 304, 469 A.2d 563, 566 (1983) (citations omitted). The Supreme Court in Venetian Blind went on to hold that where a “policy limitation relied upon by the insurer to deny coverage is clearly worded and conspicuously displayed, the insured may not avoid the consequences of that limitation by proof that he failed to read the limitation or that he did not understand it.” Id., 503 Pa. at 307, 469 A.2d at 567.

In a later case, this Court relied upon Venetian Blind and expanded its holding to also conclude that where the contested policy provisions are “clear and unambiguous, neither the insurer nor its agents have a duty to explain all of the hypothetical consequences which may result” from the coverage the insured has specifically requested. Banker v. Valley Forge Ins. Co., 363 Pa.Super. 456, 465, 526 A.2d 434, 438 (1987) (rev’d on other grounds, Banker v. Valley Forge Ins. Co., 401 Pa.Super. 367, 585 A.2d 504 (1991)); see also Hess v. Allstate Insurance Co., 614 F.Supp. 481 (W.D.Pa.1985), aff'd, 804 F.2d 1248 (3d Cir.1986).

Nonetheless, appellants remind us a plurality of the Supreme Court also has offered this recent admonition:

The duty of an insurance company to deal with the insured fairly and in good faith includes the duty of full and complete disclosure as to all of the benefits and every coverage that is provided by the applicable policy or policies along with all requirements____

Dercoli v. Pennsylvania Nat. Mut. Ins., 520 Pa. 471, 478, 554 A.2d 906, 909 (1989) (emphasis added). While “we find the duty enunciated in Dercoli to be a logical and rational one which flows from the relationship as it in fact exists between insurers and their insured,” Miller v. Keystone Ins. Co., 402 Pa.Super. 213, 222, 586 A.2d 936, 940 (1991), we do not find Dercoli to supplant or even conflict with the controlling precedent of Venetian Blind. As a result, the distinguishing facts of the cases now before us prevent appellants from finding the refuge they seek by attempting to expand Dercoli beyond its natural bounds to require insurers to disclose all possible information as to the benefits of coverage that is not provided.

The imposition of the duty in Dercoli was premised on three factors: (1) the insurer had assumed the responsibility for processing its insured’s claims; (2) the insurer knew that the insured was relying exclusively on its advice and counsel; and, (3) the insurer had knowledge regarding an additional claim for benefits to which Mrs. Dercoli was entitled and it failed to disclose such information.

Miller, supra, 402 Pa.Superior Ct. at 223, 586 A.2d at 941.

In the instant cases, we do not find the circumstances created in the insurers the same duty as was presented in Dercoli. Assuming, arguendo, the nature of an insurance contract presumes the insurer assumes the responsibility for processing its insured’s claims, we find no evidence the remaining Dercoli factors were established. Appellants have not asserted that they, as the insureds, were acting in reliance upon the insurers’ advice and counsel. In fact, it appears advice and counsel from the respective insurers was neither sought nor offered, and in the absence of the former action we find no requirement of the latter.

The third and most important prong of the Dercoli duty as it relates to these cases concerns whether the insurers had knowledge of benefits to which appellants were entitled and failed to disclose such information. We find no evidence of any knowledge known only to the insurers, inasmuch as the insurers were unaware of the purposes to which appellants intended to apply any benefits which they might claim. The insurers’ only duty was to pay out the benefits to which appellants were entitled and to provide the coverage specified in their policies, subject to any enumerated exclusions. This, it is clear, the insurers did. We find no justification in the law to impose the additional burden on insurers that they anticipate and then counsel their insured on the hypothetical, collateral consequences of the coverage chosen by the insured. The basic contractual nature of insurance coverage set forth in Venetian Blind, supra, and Dercoli, supra, requires fair dealing and good faith on the part of the insurer, not hand holding and substituted judgment. While we acknowledge insurance is an area in which the contracting parties stand in somewhat special relationship to each other, the relationship is not so unique as to compel this Court to require an insurer to explain every permutation possible from an insured’s choice of coverage. Each insured has the right and obligation to question his insurer at the time the insurance contract is entered into as to the type of coverage desired and the ramifications arising therefrom. Once the insurance contract takes effect, however, the insured must take responsibility for his policy. We, therefore, decline to extend the duties of an insurer to provide ongoing advice concerning the limits of its coverage, or even more remotely, the prospective limits of another insurer’s coverage.

For the foregoing reasons, we find appellants’ arguments without merit, and we affirm the Orders of court.

Orders affirmed.

      . The Order was entered on June 7, 1990, and on July 3, 1990, counsel for appellant filed a praecipe to enter judgment. Notice of appeal was also filed on July 3, 1990. An Order granting summary judgment is a final, appealable Order, and therefore there was no need to take the additional step of reducing the Order to judgment. While this appeal is timely, we note this harmless defect to save counsel, who is counsel for both appellants, from the future risk of filing an untimely notice of appeal.

      . Erie has maintained throughout this case that appellant’s insurance policy was issued through Erie Insurance Exchange, a related but separate and distinct insurer from Erie Insurance Company. As we decide this appeal on alternate grounds, we do not reach the merits of this argument.

      . 75 Pa.C.S. § 1701 et seq.

      . During the course of discovery, appellant admitted he had not received treatment for his TMJ, and had not submitted to Blue Shield, nor had Blue Shield denied, a claim for medical expenses. Questions of ripeness and standing are not easily overlooked, but in the interests of judicial economy and fairness, and to forestall unnecessary relitigation in this matter, we will address appellant’s arguments, ignoring any procedural defects which do not impinge directly on our resolution of the issues presented.

      . In Kilmore, supra, the Blue Shield coverage was issued under a group policy. In the present case, appellant's amended complaint does not indicate whether her Blue Shield policy is a group policy or an individual policy.

      . The policy provided for $10,000 in first party benefits and an additional $10,000 because appellant was wearing her seat belt when the accident occurred.

      . " Blue Shield technically is not an “insurance company” under Pennsylvania law, but rather a "general medical service corporation” operating “nonprofit professional health service plans,” and statutorily regulated by the Professional Health Services Plan Corporation Act, 40 Pa.C.S. § 6301 et seq. This designation is immaterial to our disposition of these cases, however, as we find the duties owed by Blue Shield to its subscribers/insureds are no greater than those in the typical insurance contract.


author: WIEAND, Judge:

text:
    595 A.2d 627
    William H. KELLEY and Patricia J. Kelley v. WOLFF PETROLEUM, INC. v. Charles GAYSON. Appeal of William H. KELLEY, Patricia J. Kelley, Parties Plaintiff and Fireman’s Fund Insurance Company.
    Superior Court of Pennsylvania.
    Submitted May 23, 1991.
    Filed Aug. 20, 1991.

      Laurence M. Kelly, Montrose, for appellants.
    Paul A. Barrett, Scranton, for appellee Gayson.
    Before WIEAND, BECK and HUDOCK, JJ.
   WIEAND, Judge:

This appeal is from an order which denied a petition by a workmen’s compensation carrier seeking intervention by the carrier in the plaintiff-employee’s third party tort action. After careful review, we conclude that the trial court’s order in this case was interlocutory and that an appeal, therefore, will not lie.

As a general rule, an appeal will not lie from an order denying intervention, because such an order is not a final determination of the claim made by the would-be intervenor. However, in some cases, the order denying intervention has the practical effect of denying relief to which the intervenor is entitled and which he can obtain in no other way. Such an order will be deemed final, and an appeal therefrom will be allowed. See: Van Den Heuval v. Wallace, 382 Pa.Super. 242, 555 A.2d 162 (1989); Maginley v. Robert J. Elliott, Inc., 345 Pa.Super. 582, 498 A.2d 977 (1985); Boise Cascade Corp. v. East Stroudsburg Savings Association, 300 Pa.Super. 279, 446 A.2d 614 (1982). In order to determine the appealability of an order denying intervention, therefore, one must examine the ramifications of the order to determine whether it constitutes a practical denial of relief to which the petitioner for intervention is entitled and which he can obtain in no other way.

In the past, the Superior Court has accepted appeals from workmen’s compensation carriers who were denied the right to intervene in third party actions by employees who had been paid workmen’s compensation benefits. Orders denying intervention in such cases had had the practical effect of denying or impairing the subrogation rights which were guaranteed to the carrier by Section 319 of the Workmen’s Compensation Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 671. See: Maginley v. Robert J. Elliott, Inc., supra. See also: Van Den Heuval v. Wallace, supra. In the instant case, however, the circumstances are different. Here, it is clear from the record that the interests of the workmen’s compensation carrier are already adequately represented and that it will suffer neither loss nor impairment of its subrogation rights if it is not permitted to intervene.

The plaintiff-employee in this action and the workmen’s compensation carrier are represented by the same lawyer, and the carrier has not alleged, either expressly or by implication, that its subrogation interests will not be adequately represented. Prior to recovery by the plaintiff, his interests and those of the workmen’s compensation carrier will not be adverse; and in the unlikely event that a disagreement should arise after a verdict or settlement, the carrier would have adequate opportunity to protect its interest at that time. See: McGinnis v. United Screw & Bolt Corp. 637 F.Supp. 9, 11 (E.D.Pa.1985), aff'd in part and dismissed in part, 791 F.2d 919 (3d Cir.1986). Under these circumstances, we conclude that the trial court’s order denying intervention has not had the effect of denying relief which the workmen’s compensation carrier can obtain in no other way. Accordingly, an immediate appeal will not lie.

Appeal dismissed.

BECK, J., concurs in the result.

      . The appellee has argued with some merit that the petition to intervene was a sham, intended to enable plaintiffs counsel to argue to the jury for a verdict in excess of benefits already paid by the workmen's compensation carrier. This was demonstrated by counsel’s pre-trial statement of questions intended to be asked during voir dire and was accepted by the court as a reason for denying intervention. It may also explain why the instant appeal was filed on behalf of both the workmen’s compensation carrier and the plaintiff. Because of our decision to dismiss the appeal, we find it unnecessary to comment upon counsel's motives for seeking intervention, except to observe that if the trial court’s observations are correct it becomes even clearer that the order denying intervention is not a final order.


author: HOFFMAN, Judge: WIEAND, Judge

text:
    595 A.2d 629
    Wendy A. LAMBERT, Administratrix of the Estate of Timothy D. Lambert, Deceased v. Darrell Dean McCLURE and Donegal Mutual Insurance Company. Appeal of DONEGAL MUTUAL INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued March 21, 1991.
    Filed Aug. 21, 1991.

      Richard A. Lanzillo, Erie, for appellant.

      Henry W. Gent, III, Franklin, for Lambert, appellee.
    Before ROWLEY, President Judge, and WIEAND, and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from a July 31, 1990 order granting the motion of appellee, Wendy Lambert, for judgment on the pleadings. Appellant, Donegal Mutual Insurance Co. (“Donegal”), contends that the trial court erred in holding that the liability limitation provision in appellee’s decedent’s insurance policy was contrary to the public policy of the Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL”), 75 Pa.C.S.A. §§ 1701-1798.4, and, thus, was void. For the following reasons, we affirm.

This case arises from a single vehicle automobile accident that occurred on July 15, 1988 in Mineral Township, Venango County. At the time of the accident, Darrell Dean McClure was operating the vehicle, and appellee’s decedent, Timothy Lambert (“Lambert”), was a passenger. Lambert was killed when McClure lost control of the vehicle causing it to leave the roadway. The vehicle was owned by Lambert and insured by Donegal. Under the insurance policy, Donegal provides $100,000 liability coverage for one person injured in a single accident. If, however, that one person is the insured or a family member, an Endorsement to the policy limits the liability coverage to the statutory minimum ($15,000). On October 11, 1988, appellee filed a complaint against McClure and Donegal. The first two counts were directed at McClure, and the third count was directed at Donegal. In the third count, appellee alleged that because McClure was an uninsured motorist, Donegal was liable to appellee under the terms of Lambert’s insurance policy in the amount of $100,000. Donegal responded that its maximum potential liability was $15,000 due to the specific limitation set forth in the policy at Endorsement No. PP0151. On August 16, 1989, with the consent of Donegal and McClure, appellee filed an amended complaint. Thereafter, on September 22, appellee filed a motion for judgment on the pleadings with respect to the third count solely against Donegal. On October 2, Donegal filed a cross-motion for judgment on the pleadings against appellee with respect to the third count of the complaint. Subsequently, appellee, Donegal, and McClure entered into a stipulation, filed on November 21, 1989, in which they agreed to amend appellee’s complaint and Donegal’s answer. On July 31, 1990, the court granted appellee’s motion for judgment on the pleadings and denied appellant’s cross-motion. This timely appeal followed.

Our review of the trial court’s order granting judgment on the pleadings is guided by the following standard:

[A] motion for judgment on the pleadings may be granted in cases which are so free from doubt that a trial would clearly be a fruitless exercise. Such a motion is in the nature of a demurrer; all of the opposing party’s well pleaded allegations are viewed as true but only those facts specifically admitted by him may be considered against him.

Gallo v. J.C. Penney Cas. Ins. Co., 328 Pa.Super. 267, 270, 476 A.2d 1322, 1324 (1984) (citations omitted). See also Pa.R.Civ.P. 1034. Furthermore, in conducting this inquiry, the court’s consideration is confined to the pleadings and other relevant documents; no affidavits, depositions or briefs may be considered. See Gallo v. J.C. Penney Cas. Ins. Co., supra (citations omitted). Finally, we note that in cases turning upon the construction of a written agreement, the granting of a motion for judgment on the pleadings may be particularly appropriate. See id., 328 Pa.Superior Ct. at 270-71, 476 A.2d at 1324 (citation omitted).

In granting appellee’s motion, the trial court found that Endorsement No. PP0151 was ineffective because it was contrary to the public policy embodied in the MVFRL. Appellant contends that the court’s construction of the policy and the MVFRL was erroneous. Specifically, appellant claims that the liability limitation provision is consistent with §§ 1791 and 1792 of the MVFRL and, therefore, is not void. Thus, appellant claims that appellee is entitled to recover a maximum amount of $15,000.

It is well-settled that the interpretation of an insurance policy is a question of law for the Court. See Geisler v. Motorists Mut. Ins. Co., 382 Pa.Super. 622, 626, 556 A.2d 391, 393 (1989) (citations omitted); Duffy v. Nationwide Ins. Co., 374 Pa.Super. 55, 57, 542 A.2d 144, 145 (1988) (citation omitted). We are mindful to construe policy clauses providing coverage “in a manner which affords the greatest possible protection to the insured____ The in-

sured’s reasonable expectations are the focal point in reading the contract language.” Geisler v. Motorists Mut. Ins. Co., supra. With these principles in mind, we turn to the policy at issue.

The insurance policy issued by appellant provides liability coverage in the amount of $100,000 for each accident. An amendment to the policy, however, includes Endorsement No. PP0151 which provides as follows:

We do not provide Liability Coverage for any person for “bodily injury” to you or any “family member” to the extent that the limits of liability for this coverage exceed the limits of liability required by the Pennsylvania Motor Vehicle Financial Responsibility Law of 1984.

See Complaint, Exhibit A, Form No. PP0151. After looking to the relevant provision of the MVFRL, the effect of this policy provision becomes clear. The MVFRL requires a minimum liability of $15,000 for an accident causing injury to one person. Id. § 1702. Thus, the Endorsement, if it is enforceable, reduces the available coverage in this case to $15,000. The question we now must decide is whether the provision is contrary to the MVFRL.

The MVFRL must be construed liberally to effect its objects and promote justice. See 1 Pa.C.S.A. § 1928(c); Wolgemuth v. Harleysville Mut. Ins. Co., 370 Pa.Super. 51, 62, 535 A.2d 1145, 1151 (1988) (citation omitted) (en banc), alloc. denied, 520 Pa. 590, 551 A.2d 216 (1989). Moreover, with regard to the interpretation of a statute, legislative intent controls. See 1 Pa.C.S.A. § 1921. “When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” Id. § 1921(b). One purpose of the MVFRL is to reduce the escalating costs of purchasing motor vehicle insurance. See Wolgemuth v. Harleysville Mut. Ins. Co., supra 370 Pa.Super. at 63, 535 A.2d at 1151. The statute also attempts to address the problems caused by the increasingly high numbers of uninsured motorists. See id. To reach these objectives, the statute explicitly sets out the minimum amounts of .coverage that must be offered to the insured. See Tallman v. Aetna Cas. and Sur. Co., 372 Pa.Super. 593, 597, 539 A.2d 1354, 1356 (1988) (citation omitted).

The MVFRL requires that certain liability coverages be made available to an insured:

[A]n insurer issuing a policy of bodily injury liability coverage pursuant to this chapter shall make available for purchase higher limits of uninsured, underinsured and bodily injury liability coverages up to at least $100,000 because of injury to one person in any one accident____

Id. § 1792 (emphasis added). Furthermore, regarding adequate notice of these coverage options to an insured, the MYFRL provides that

[i]t shall be presumed that the insured has been advised of the benefits and limits available under this chapter provided the following notice in bold print of at least ten-point type is given to the applicant at the time of application for original coverage or at the time of the first renewal after October 1, 1984, and no other notice or rejection shall be required____

Id. § 1791. Section 1791 then sets out the “Important Notice,” which would inform potential insureds of, inter alia, (1) the insurance company’s legal responsibility “to make available for purchase the following benefits” for the insured and the insured’s family; and (2) the amounts of those benefits. Id.

Here, a careful review of the pleadings reveals that appellant never made the insured aware that he had an option to purchase more than $15,000 for bodily injury to family members or that they offered such coverage. Furthermore, appellant did not allege that it gave Lambert the “Important Notice” of § 1791 or any other adequate notice of the benefits and limits that were available to him. See id. Indeed, in a stipulation with appellee that amended the pleadings, appellant directly rebutted the presumption in § 1791 by admitting that,

[s]ince 1986, Endorsement No. PP0151 has been automatically issued by the Defendant, Donegal Mutual Insurance Company as part of each personal motor vehicle insurance policy which it issues in the Commonwealth of Pennsylvania.

Stipulation as to Amendment of Pleadings, filed November 21, 1989. The effect of this stipulation was to amend appellee’s complaint and appellant’s answer and new matter to include the averment and admission. See id. In light of these undisputed facts, we find that appellant did not “make available” to the insured those benefits required by the MVFRL.

Appellant nevertheless suggests that Lambert was free to purchase other accident benefits, and, in fact, it would have provided Lambert greater benefits if he had sought them. Thus, argues appellant, it complied with the MVFRL. We cannot agree. In our construction of the policy, we must focus on Lambert’s reasonable expectations. See Geisler v. Motorists Mut. Ins. Co., supra. Here, appellant’s admitted practice of automatically attaching Endorsement No. PP0151 to its insurance policies without explaining the coverage options that it was required to offer under the MVFRL would leave the insured with the belief that there were no other coverage options offered by the insurer. Such a practice violates the language and intent of the MVFRL. See 75 Pa.C.S.A. §§ 1791, 1792; see also Trial Court Opinion at 14. Accordingly, the trial court did not err in finding that the liability limitation contained in Endorsement No. PP0151 is void, and appellee may be entitled, under Lambert’s policy, to the full amount of liability coverage of $100,000, less the amount of additional premiums that appellee’s decedent would have paid, had he been offered, and accepted, the option to purchase additional bodily injury coverage for himself and his family.

For the foregoing reasons, we affirm the trial court’s order granting appellee’s motion for judgment on the pleadings.

Order affirmed.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge

dissenting:

I respectfully dissent. The majority’s decision to nullify a clear and unambiguous limitation on the coverage provided by a policy of automobile insurance issued by Donegal Mutual Insurance Company (Donegal) is not warranted by the decided cases or by the provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §§ 1701 to 1798.4 (MVFRL) and, in my judgment, establishes bad law.

Timothy Lambert died of injuries received while riding as a passenger in a vehicle which he owned but which was being driven by Darrell Dean McClure. The vehicle was insured under a policy of automobile insurance which had been issued by Donegal. Letters of administration were issued to Wendy Lambert in the estate of her deceased brother, and she filed an action for declaratory judgment to determine the limits of Donegal’s liability in providing coverage to McClure, the driver of the decedent’s car.

The policy was written to provide coverage up to one hundred thousand ($100,000.00) dollars per accident. This coverage, however, was subject to the following limitation:

We do not provide liability coverage for any person for “bodily injury” to you or any “family member” to the extent that the limits of liability for this coverage exceed the limits of liability required by the Pennsylvania Motor Vehicle Financial Responsibility Law of 1984.

In a motion for judgment on the pleadings, Donegal contended that its limit of liability for the death of its insured was fifteen thousand ($16,000.00) dollars, the amount required by MVFRL. The plaintiff argued, however, that the limiting language was null and void because it was contrary to the provisions of MVFRL and violated public policy. The trial court held the policy limitation void because the decedent had not had a knowing opportunity to purchase coverage for one hundred thousand ($100,000.00) dollars free of such limitation and held that the policy limitation, therefore, was unenforceable. The majority agrees and affirms. I disagree and dissent.

Pennsylvania courts have long recognized and enforced policy provisions which limit or exclude liability coverage for injuries to the named insured or members of the named insured’s family. See: Pennsylvania Manufacturers Assoc. Ins. Co. v. Aetna Casualty & Surety Ins. Co., 426 Pa. 453, 233 A.2d 548 (1967); Great American Insurance Co. v. State Farm Mutual Automobile Co., 412 Pa. 538, 194 A.2d 903 (1963) (exclusion in motor vehicle policy); Puller v. Puller, 380 Pa. 219, 110 A.2d 175 (1955) (same). See also: Neil v. Allstate Insurance Co., 379 Pa.Super. 299, 549 A.2d 1304 (1988), allocatur denied, 522 Pa. 578, 559 A.2d 38 (1989) (exclusion in homeowner’s policy); Paiano v. Home Insurance Co., 253 Pa.Super. 519, 385 A.2d 460 (1978); Grott v. State Farm Fire and Casualty Co., 646 F.Supp. 973 (E.D.Pa.1986). Such provisions serve the important purpose of discouraging collusive claims. Puller v. Puller, supra 380 Pa. at 223, 110 A.2d at 177-178; Neil v. Allstate Insurance Co., supra, 379 Pa.Super. at 307, 549 A.2d at 1308. They do not violate public policy.

“It is only when a given policy is so obviously for or against the public health, safety, morals or welfare that there is virtual unanimity of opinion in regard to it, that a court may constitute itself the voice of the community in [declaring that policy to be against public policy].”

Neil v. Allstate Ins. Co., supra, 379 Pa.Superior Ct. at 303, 549 A.2d at 1305, quoting Mamlin v. Genoe, 340 Pa. 320, 325, 17 A.2d 407, 409 (1941).

When the language of an insurance policy is clear and unambiguous, a court is required to give effect thereto. Pennsylvania Manufacturers’ Association Insurance Co. v. Aetna Casualty & Surety Insurance Co., supra; Neil v. Allstate Insurance Co., supra. In such cases, it is not a defense that the insured failed to read or understand the language of the policy. Standard Venetian Blind Company v. American Empire Insurance Co., 503 Pa. 300, 469 A.2d 563 (1983). A court should not rewrite or ignore the clear terms of an insurance agreement in order to expand coverage beyond that provided in the policy. Guardian Life Insurance Co. v. Zerance, 505 Pa. 345, 353, 479 A.2d 949, 953 (1984); Monti v. Rockwood Ins. Co., 303 Pa.Super. 473, 450 A.2d 24, 26 (1982); Adelman v. State Farm Mutual Auto Ins. Co., 255 Pa.Super. 116, 386 A.2d 535 (1978). An insured will not be heard to complain that his reasonable expectations were frustrated by policy limitations which are clear and unambiguous. Neil v. Allstate Insurance Co., supra, 379 Pa.Superior Ct. at 311, 549 A.2d at 1309.

Provisions limiting liability with respect to claims made by the named insured or members of his family are not prohibited by any provision of MVFRL. The requirement that an insurer make available for purchase a coverage for bodily injury liability in an amount up to at least one hundred thousand ($100,000.00) dollars cannot be construed as preventing the limitation imposed by the Donegal policy with respect to claims made by the named insured or members of his family. The requirements imposed by MVFRL should not be expanded “under the pretext of pursuing [the statute’s] spirit.” 1 Pa.C.S. § 1921(b). See also: Wolgemuth v. Harleysville Mutual Insurance Co., 370 Pa.Super. 51, 62, 535 A.2d 1145, 1151 (1988) (en banc), allocatur denied, 520 Pa. 590, 551 A.2d 216 (1989). One of the statute’s objectives was to reduce the escalating costs of motor vehicle insurance. Wolgemuth v. Harleysville Mutual Insurance Co., supra, 370 Pa.Superior Ct. at 63, 535 A.2d at 1152. An unwarranted expansion by the courts of statutory duties imposed upon insurers will serve only to increase the cost of insurance and thereby undermine the statute’s principal objective. Coverage for liability of up to one hundred thousand ($100,000.00) dollars was, in fact, purchased by the insured in this case, and coverage in the same amount for claims by the insured or members of his family was available for purchase.

The majority holds that the endorsement imposing the limitation is void because it was not called to the attention of the named insured with instructions that it could be removed by the payment of an additional premium. I am unable to accept this reasoning. In the first place, I find no such requirement in the statute. The majority relies upon the requirement of the statute that an insured be advised that coverage in excess of that required by MVFRL be made available for purchase by payment of an additional premium. In the instant case, however, it is clear that the insured was aware that excess coverage was available. He was aware of it because, in fact, he purchased such additional coverage. The statute contains no mandate that additional notice be given of the limitation which pertained to liability coverage for bodily injury sustained by the named insured or members of his family.

The limitation in this case was expressed by policy language which was clear and unambiguous, and the insured, under all the cases, had an obligation to read it. This is particularly so in the instant case. Here, the insured’s attention was specifically directed by language on the Declaration page to Endorsement PP. 0151. This is the special limitation which the majority voids because, it contends, the insured was not made aware that it could be erased by an additional premium.

The majority also errs, in my judgment, when it assumes that, as a matter of law, the insured was unaware of the limitation on coverage or that it could be removed by the payment of an additional premium. My review of the complaint fails to reveal any averment that the insured was not aware that liability coverage of up to one hundred thousand ($100,000.00) dollars could also be purchased for claims made by him or members of his family. Indeed, the estate’s action was not based upon an absence of such knowledge. The complaint averred only that the clause violated public policy. Contrary to the majority, I cannot infer a lack of such knowledge solely from the general policy of Donegal to insert a limitation on liability for claims by the named insured or members of his family in the absence of contrary instructions from the insured.

In my judgment, the insured was chargeable with notice of the limitations upon Donegal’s liability which were clearly and unambiguously stated in the policy which he purchased. The limitation here being reviewed did not violate public policy or any provisions of MVFRL. Therefore, I would hold, consistently with the language of the policy, that Donegal’s limit of liability for the death of its insured was fifteen thousand ($15,000.00) dollars. Because the majority holds otherwise, I respectfully dissent.

      . Appellant also contends that the trial court erred in its alternative finding that the insurance policy, including the liability limitation provision, was ambiguous. In light of our finding that the provision is void, we need not address this issue.

      . On August 28, the trial court entered an amended order limiting the grant of appellee’s motion for judgment on the pleadings to the issue of liability coverage and the validity of the liability limitation provision of the policy.

      . Although the dissent properly notes that when the language of an insurance policy is clear and unambiguous, a court is required to give effect thereto, see Dissenting Op. at 634, we cannot agree with the dissent’s conclusion that Endorsement No. PP0151 was clear and unambiguous. Rather, the coverage for bodily injury to the insured was confined to the "limits of liability required by the Pennsylvania Motor Vehicle Financial Responsibility Law of 1984" (emphasis added.) The insured could not ascertain the amount of the limitation from the face of the document or the language of the provision, but was instead compelled to go outside the policy, to the referenced law, to determine the extent of coverage.

      . Contrary to the dissent’s assertion that "it is clear that the insured was aware that excess coverage was available ... because, in fact, he purchased such additional coverage,” Slip Dissenting Op. at 634, there is no indication that the insurer ever informed the insured of the option to purchase additional bodily injury coverage for himself and his family. It appears that the insurer did offer the insured the option to purchase additional liability coverage, an offer the insured ultimately accepted. However, absent any other evidence, this fact does not establish that the insured was offered the disputed option as well. Section 1791's presumption that the insured has been fully advised of available benefits arises only when the required notice is given. We cannot create by judicial construction a presumption greater than that afforded by the MVFRL.

      . Appellant also admitted in the stipulation that Endorsement No. PP0151 was included in Lambert’s first policy, which was obtained on April 24, 1987, and cancelled on August 31, 1987. Appellant did not explicitly admit that Endorsement No. PP0151 was included in Lambert's second policy, which was in effect at the time of the accident. However, the second policy was issued in January of 1988, and, as noted above, the stipulation stated that since 1986 appellant automatically included the Endorsement as part of each motor vehicle insurance policy. See Stipulation as to Amendment of Pleadings, filed November 21, 1989.

      . The dissent appears to misperceive the focus of our holding. We do not hold that."the endorsement imposing the limitation is void because it was not called to the attention of the named insured with instructions that it could be removed by the payment of an additional premium.” Dissenting Op. at 634. Rather, we are most concerned with the insurer's failure to comply with sections 1791 and 1792 of the MVFRL, and we hold that this noncompliance, combined with the insurer’s automatic issuance of the disputed limitation, left the insured with the impression that $15,000 was the extent of bodily injury coverage available to him and his family members, a result inconsistent with the MVFRL.

      . In light of our conclusion, we need not reach appellant’s argument regarding the propriety of the trial court’s conclusion that Endorsement No. PP0151 also violates public policy. See Trial Court Opinion at 12.


author: HOFFMAN, Judge.

text:
    595 A.2d 635
    COMMONWEALTH of Pennsylvania, Appellant, v. George SANDERS.
    Superior Court of Pennsylvania.
    Submitted June 6, 1991.
    Filed Aug. 21, 1991.
    Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for the Com., appellant.
    Sally A. Frick, Pittsburgh, for appellee.

      Before OLSZEWSKI, HUDOCK and HOFFMAN, JJ.
   HOFFMAN, Judge.

This appeal by the Commonwealth is from the order below granting appellee’s motion to arrest judgment. The motion was granted based upon the trial court’s finding that it had erred in denying appellee’s pre-trial motion to suppress physical evidence, cocaine, that had been seized without a warrant. The Commonwealth contends that the evidence seized was admissible because appellee had abandoned it, and thus the court erred in arresting judgment. We affirm.

On September 18, 1989, appellee was charged with possession and possession with intent to deliver a controlled substance (cocaine), as well as escape. Before trial, appellee filed a motion to suppress cocaine that had been seized without a warrant. On January 19, 1990, a hearing was held, and the court below denied the motion. That same day, appellee waived his right to a jury, and proceeded to a bench trial. Testimony from the suppression hearing was incorporated into the trial. After hearing further testimony, the court found appellee guilty of all charges.

Appellee filed timely post-verdict motions and a supportive Memorandum alleging, inter alia, error in the disposition of the motion to suppress. The Commonwealth responded with a post-trial brief arguing that appellee lacked standing to contest the legality of the search because he had abandoned the property in question. On May 21, 1990, the trial court arrested judgment, finding that the cocaine had been illegally seized, and that, without this evidence, the Commonwealth’s case was insufficient to support appellee’s conviction. This timely appeal by the Commonwealth followed.

The propriety of the trial court’s decision to arrest judgment turns on the court’s determination of the suppression issue. The only witness to testify at the suppression hearing was Lieutenant Jackie Jones of the Duquesne Police Department. The trial court aptly summarized Lt. Jones’s pertinent testimony as follows:

Lieutenant Jackie Jones’ testimony was that on July 3, 1989, [police received] an anonymous call____ The nature of the call was that a black male, bald or with a short haircut, was standing by a brown car with two other black males selling drugs in Burns Heights Project____ There was no [further] description of the activity in which he was engaged____ Lt. Jones proceeded to the parking lot of Burns Heights Project. She observed the defendant, George Sanders, with two other men standing next to a brown car____ The Lieutenant observed the defendant with a black pouch in his hands. Mr. Sanders placed the black pouch on the trunk of the car. Lt. Jones exit[]ed her vehicle, walked up to him, picked up the pouch, looked inside and saw suspected narcotics. She placed the defendant under arrest and asked him to take steps away from the car. At this point, she was assisted by Officer Dudley. While Officer Dudley was frisking Mr. Sanders, the defendant ran____
Subsequent analysis of the pouch revealed eight (8) pieces of aluminum foil each containing crack-cocaine, the total of which was 1.33 grams. Also present in the pouch was one (1) plastic bag filled with rice and a second inner bag holding 13.67 grams of [what proved to be] 50% pure cocaine.

Trial Court Opinion at 2-3. The Commonwealth does not dispute the trial court’s factual findings, but takes issue with the court’s conclusion of law—i.e., its finding that the seizure of the black pouch was unlawful. Specifically, the Commonwealth argues that appellee had no standing to challenge the legality of the seizure because, when he placed the pouch on the trunk of the car, he abandoned it.

It is well-settled that “no one has standing to complain of a search or seizure of property that he has voluntarily abandoned.” Commonwealth v. Shoatz, 469 Pa. 545, 553, 366 A.2d 1216, 1220 (1976); see also Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). The Shoatz Court summarized the principles governing an abandonment analysis as follows:

The theory of abandonment is predicated upon the clear intent of an individual to relinquish control of the property he possesses.
Abandonment is primarily a question of intent, and intent may be inferred from words spoken, acts done, and other objective facts facts____ All relevant circumstances existing at the time of the alleged abandonment should be considered____ Police pursuit or the existence of a police investigation does not of itself render abandonment involuntary____ The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.

Id. 469 Pa. at 553, 366 A.2d at 1219-20 (1976) (quoting United States v. Colbert, 474 F.2d 174, 176 (5th Cir.1973) (citations omitted)). See also Commonwealth v. Williams, 380 Pa.Super. 227, 551 A.2d 313 (1988); Commonwealth v. Anderl, 329 Pa.Super. 69, 82-83, 477 A.2d 1356, 1362-63 (1984); 1 W. LaFave, Search and Seizure, § 2.6(b), at 467 (1987 & Supp.1991) (“The fundamental question is whether the relinquishment occurred under circumstances which indicate [the defendant] retained no justified expectation of privacy in the object.”).

Here, we cannot agree with the Commonwealth that appellee’s equivocal act of placing his black pouch on the hood of the car reflects a clear intent to relinquish his interest in the property. Appellee did not walk away from the car or otherwise attempt to disassociate himself further from the pouch. Moreover, appellee’s “placing” the pouch on the hood cannot be equated with acts in other cases where the defendant made clear an intent to abandon by discarding the evidence. See, e.g., Commonwealth v. Brown, 388 Pa.Super. 187, 565 A.2d 177 (1989) (as police lawfully approached defendant, he walked around police vehicle, pretended to trip, and as he did so, tossed evidence (plastic bag containing cocaine) under his car); Commonwealth v. Rodriguez, 385 Pa.Super. 1, 559 A.2d 947 (1989), allocatur denied, 524 Pa. 619, 571 A.2d 381 (1989) (undercover narcotics officers purchased cocaine on street from defendant who kept drugs stashed in locked abandoned house nearby; after cocaine was field-tested, police officers in marked car approached defendant; when defendant saw them, she dropped keys to house, thereby abandoning rights in premises). The case at bar is also distinguishable from Brown and Rodriguez because the defendant did not discard the evidence in reaction to the lawful approach of a police officer. Indeed, the record is silent concerning whether appellee was even aware of Lt. Jones’ presence: there is no record evidence that Jones was in uniform or in a marked police car, or that appellee looked in her direction as she approached or otherwise indicated an awareness of her presence. Thus, this case is unlike “the typical case in which abandonment has been found because the defendant attempted to disassociate himself from incriminating evidence by throwing it away upon the lawful approach of police.” Commonwealth v. Williams, supra 380 Pa.Super. at 234-35, 551 A.2d at 316-17 (citing Commonwealth v. Hall, 475 Pa. 482, 380 A.2d 1238 (1977); Commonwealth v. Bulling, 331 Pa.Super. 84, 480 A.2d 254 (1984); Commonwealth v. Derrick, 322 Pa.Super. 517, 469 A.2d 1111 (1983); 1 W. LaPave, Search and Seizure, § 2.6(b), at 466 & nn. 39-43).

It is important to remember that in order to retain an expectation of privacy in our possessions, we are not required to place them in our homes or our pockets, or to clutch them closely to our breasts. As always, the determination whether a person reasonably may expect that his or her possessions shall be free from unwarranted governmental intrusion depends on the facts and circumstances attending the particular confrontation. And here, because the only action taken by appellee with regard to the pouch was equivocal, we are satisfied that he retained an expectation of privacy in the pouch, and thus, to be lawful, the search had to comply with the fourth amendment. Cf. Smith v. Ohio, 494 U.S. 541, -, 110 S.Ct. 1288, 1290, 108 L.Ed.2d 464 (1990) (“[A] citizen who attempts to protect his private property from inspection, after throwing it on a car to respond to a police officer’s inquiry, clearly has not abandoned that property.”).

In summary, we hold that the evidence in the suppression hearing did not demonstrate that appellee abandoned his pouch prior to the police seizure in this case. Thus, the trial court did not err in determining that the evidence should have been suppressed. As we have determined that the only argument presented by the Commonwealth on appeal is meritless, we must affirm the order arresting judgment.

Order affirmed.

      . The Commonwealth’s right to appeal the granting of an arrest of judgment is settled. See Commonwealth v. Rawles, 501 Pa. 514, 462 A.2d 619 (1983); Commonwealth v. Coleman, 367 Pa.Super. 108, 532 A.2d 477 (1987), allocatur denied, 518 Pa. 635, 542 A.2d 1365 (1988).

      . Although we are bound by the court's findings of fact, we are not bound by its conclusions of law. See Commonwealth v. Lark, 505 Pa. 126, 477 A.2d 857 (1984); Commonwealth v. White, 358 Pa.Super. 120, 516 A.2d 1211 (1986).

      . The trial court found that the police lacked probable cause to arrest appellant or search the pouch. The Commonwealth does not challenge this finding.

      . We should note that the Commonwealth does not claim that an arrest of judgment is an inappropriate remedy in this case. But cf. Commonwealth v. Lovette, 498 Pa. 665, 669, 450 A.2d 975, 977 (1982) (sufficiency of evidence claim will not be assessed on diminished record, but rather on evidence actually presented to trier of fact), cert. denied sub nom. Pennsylvania v. Lovette, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983); Commonwealth v. Tabb, 417 Pa. 13, 16, 207 A.2d 884, 886 (1965) (same).
      In addition, the Commonwealth does not argue that the court erred in arresting judgment on the escape charge.


author: MONTEMURO, Judge:

text:
    595 A.2d 1147
    Lynne ALTUS-BAUMHOR v. Larry BAUMHOR, Appellant.
    Superior Court of Pennsylvania.
    Argued June 13, 1991.
    Filed July 16, 1991.
    Reargument Denied Sept. 26, 1991.

      Larry Baumhor, pro se.
    Carolyn O’Garro-Moore, Philadelphia, for appellee.
    Before MONTEMURO, BECK and CERCONE, JJ.
   MONTEMURO, Judge:

This is an appeal from an order altering the schedule by which the parties have custody of their minor child.

The parties were married in March of 1984, and separated in July of 1987, when their son was two and a half years old. An order was entered by agreement awarding appellee primary physical custody of the child, with partial custody in appellant to be exercised two nights each week, and every weekend. The schedule did not vary to account for special holiday or vacation periods. Both parties petitioned for modification of the order, and after hearing, the order now appealed from was entered, granting appellee primary custody of the child, with appellant receiving partial custody one evening a week, alternate weekends and holidays, and four weeks during the summer. This appeal followed.

Appellant has advanced four issues for our consideration, asserting various errors in the trial court’s assessment of the facts and circumstances of the case, and aimed at achieving a return to an approximation of the original schedule, but with the addition of established vacation and holiday times. However, in custody matters, as all parties agree, the primary consideration is the best interests of the child. In deciding whether this overriding concern has been properly addressed,

In an appeal of a child custody determination made by a trial court, the paramount concern must be the best interest of the child. In reviewing a custody order, we are not bound by findings of fact made by the trial court which are unsupported in the record, nor are we bound by the court’s inferences drawn from the facts. Commonwealth ex rel Spriggs v. Carson, 470 Pa. 290, 294-5, 368 A.2d 635, 637 (1977). However, on issues of credibility and weight of the evidence, we defer to the findings of the trial judge, who has had the opportunity to observe the proceedings and the demeanor of the witnesses. Id., 470 Pa. at 295, 368 A.2d at 637. Only where we find that the custody order is “manifestly unreasonable as shown by the evidence of the record ...” will an appellate court interfere with the trial court’s determination. Murphey v. Hatala, 350 Pa.Super. 433, 439, 504 A.2d 917, 920 (1986) , appeal denied, 516 Pa. 634, 533 A.2d 93 (1987), citing Mielcuszny v. Rosol, 317 Pa. 91, 176 A. 236 (1934); Commonwealth ex rel Berman v. Berman, 289 Pa.Super. 91, 432 A.2d 1066 (1981). Therefore, unless the trial court’s ruling represents a gross abuse of discretion, we will not interfere with an order awarding custody. Commonwealth ex rel. Rainford v. Cirillo, 222 Pa.Super. 591, 597-98, 296 A.2d 838, 841 (1972), quoted in Lombardo v. Lombardo, 515 Pa. 139, 148, 527 A.2d 525, 529 (1987) .

Mumma v. Mumma, 380 Pa.Super. 18, 21, 550 A.2d 1341, 1343 (1988). See also, Karis v. Karis, 518 Pa. 601, 544 A.2d 1328 (1988); Commonwealth ex rel Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984).

Moreover, as the trial court points out, the court may inquire into the best interests of the child irrespective of whether a substantial change in circumstances has been demonstrated. Karis, supra.

In his first three claims, appellant posits essentially the same argument, that any alteration to the existing schedule, except the inclusion of specified holidays and vacations, would serve to interfere with the relationship he has established with his son, and is therefore an abuse of the trial court’s discretion. This claim is accompanied by a litany, repeated in support of every claim, of the actions he has taken to provide the boy with appropriate care.

However, despite appellant’s argument that the new order is punitive, the trial court found both parents to be fit, loving and attentive to their son’s needs. There is no question raised by either party that the other represents a threat to the child’s continued well-being, or that custody changes were warranted by ill treatment or neglect. Rather, the trial court found that while the arrangement had in the past inured to the child’s benefit, his needs as he grew older and began more involvement in school and other activities, had already, and would continue to change in ways which would render the constant shifting called for by the schedule no longer workable. It was concluded that shuttling the boy back and forth each day between his parents would become more and more disruptive, confusing and eventually detrimental.

The facts of this case bear a striking resemblance to those in Mumma v. Mumma, supra. There, a panel of this court found that the public policy which promotes the parent child relationship does not dictate that physical custody of the child be divided equally between the parents. The boy in Mumma had been on a schedule which required him to shift households on a weekly basis. The court determined that this peripatetic existence lacked the stability and predictability necessary for the child’s continued development, although prior to his entering school the arrangement was not seen as harmful. Moreover, the parents were unable to cooperate in shared custody and, as in the instant case, on one occasion the police had been called to effectuate a custody exchange.

Appellant’s own custody petition was in fact prompted by the parties’ documented inability to agree consistently on custody during holiday and vacation times. Further, appellee has been deprived of any extended contact with her son during the week or on weekends, the motive for her petition. As to her, the previous arrangement did represent a disruption of her relationship with her son, in violation of that public policy to which appellant resorts. See, Schwarcz v. Schwarcz, 378 Pa.Super. 170, 548 A.2d 556 (1988) (Every parent has the right to develop a good relationship with the child, and every child has the right to develop a good relationship with both parents.) The new schedule, despite appellant’s claims, merely establishes joint custody in a more equitable way. The trial court noted that custody had been geared entirely to appellant’s own schedule of school and work, and that appellant had avoided full time employment to maintain the status quo, thus deliberately limiting his ability to provide financial support. We find no abuse of discretion in the trial court’s assessment of the parties’ situations, and in the steps taken to rectify the errors of the previous custody schedule.

Next, appellant asserts that the trial court’s in camera examination of the child was intimidating, threatening and coercive. He further contends that the trial court abused its discretion by failing to accede to the preferences of a seven year old, and, not incidentally, to appellant’s as well, when altering the custody schedule.

In support of what would be outrageous behavior, had it in fact occurred, appellant strings together phrases taken out of context from questions directed at the child by the trial court during the in camera interview. He then presents these remarks to us, without citation to the record, as proof that his child had been mistreated. We would remind appellant that we too have access to the transcript, and that his accusations in no way reflect actual events.

Insofar as the court’s failure to be guided by the child's preferences is concerned, as appellant himself points out, such preferences are not controlling, Ellingsen v. Magsamen, 337 Pa.Super. 14, 486 A.2d 456 (1984), particularly where the situation for which the child has expressed a desire was determined not to be in his best interests. Moreover, the boy’s preference was accompanied by no explanation such as occurred in Commonwealth v. Barbara M. v. Joseph M., 286 Pa.Super. 51, 428 A.2d 567 (1981), the case relied upon by appellant. See, Commonwealth ex rel E.H.T. v. R.E.T., 285 Pa.Super. 444, 427 A.2d 1370 (1981). Like the court in E.H.T., we are satisfied that the child’s preferences, despite being overruled, were nevertheless considered.

For the foregoing reasons, we find no abuse of discretion in the trial court’s disposition of this matter.

Order affirmed.

      . Appellant notes that he only requested two weeks vacation time with his son.

      . As part of his argument, appellant accuses the court of sex discrimination, and violations of the public policy of the Commonwealth, as well as the fundamental liberty interest protected by the Fourteenth Amendment. He also claims that in altering the custody arrangement, the trial court has reinstituted the now discredited tender years doctrine. We are unpersuaded by any of these charges, as the record is devoid of any matter supportive of them. Accordingly, they may be disposed of summarily.


text:
    595 A.2d 1150
    William HASTINGS, Appellant, v. PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY and John Kennedy Ford and American Fire and Casualty Company. William HASTINGS v. PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY and John Kennedy Ford and American Fire and Casualty Co. Appeal of: JOHN KENNEDY FORD and American Fire and Casualty Co.
    Superior Court of Pennsylvania.
    Argued June 13, 1991.
    Filed July 25, 1991.
    Reargument Denied Sept. 26, 1991.

      Thomas J. Mettee, Philadelphia, for appellant (at 2859) and for appellee (at 3062).
    Timothy J. Graham, Philadelphia, for appellants (at 3062) and appellees (at 2859).
    Glenn A. Ricketti, Philadelphia, for Pa. Nat. Mut., appellee.
    Before MONTEMURO, BECK and CERCONE, JJ.
   MONTEMURO, Judge:

This is an appeal, from an order granting appellees’ motion for summary judgment.

In January of 1984, William Hastings sustained serious and permanent injuries when the vehicle he was driving home from his place of employment, appellant John Kennedy Ford, was struck in the rear by another car. Mr. Hastings began receiving first party medical and wage loss benefits from appellee Pennsylvania National Mutual Insurance Company (Penn Mutual), the carrier of John Kennedy Ford’s no fault insurance policy. However, the payments ceased in May of 1984, and Mr. Hastings instituted suit against Penn Mutual, alleging wrongful denial of benefits. In its Answer and New Matter, Penn Mutual contended that all required payments had been made, and alleged that as the injuries had occurred within the course and scope of Mr. Hastings employment, they were compensable by worker’s compensation. Penn Mutual then impleaded John Kennedy Ford, and its worker’s compensation carrier, appellant American Fire and Casualty Company as third party defendants; their answer contained a cross claim against Penn Mutual.

The third party defendants unsuccessfully filed a summary judgment motion alleging that Mr. Hastings was not acting within the course and scope of his employment when the accident occurred. Penn Mutual’s subsequent motion for summary judgment claiming entitlement to reimbursement of all payments made to Mr. Hastings was granted, and this appeal followed.

The crux of the matter before us, and the basis of the single issue presented, is whether Mr. Hastings was acting in the course and scope of his employment because the vehicle he was driving at the time of the accident had been provided by the automobile dealership which employed him as a salesman.

Prior to addressing this issue, we reiterate the standard to be applied where the grant of summary judgment has been challenged.

We will uphold a grant of summary judgment only in those cases in which the pleadings, depositions, interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035(b). In reviewing a grant of summary judgment, we 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. Lookenbill v. Garrett, 340 Pa.Super. 435, 490 A.2d 857 (1985).

Rosen v. Tessoro Petroleum Corporation, 399 Pa.Super. 226, 228-29, 582 A.2d 27, 28-29 (1990).

In defining the scope of employment for purposes of worker’s compensation, our Supreme Court has ruled that

Ordinarily the [Worker’s Compensation] Acts have no application where the employe is going to or coming from his work. But where the contract of employment provides that the employer shall furnish the means of going and returning from work, the employe is regarded as engaged in the furtherance of his employer’s business during such transportation. Butrin v. Manion Steel Barrel Company, 361 Pa. 166, 63 A.2d 345 [1949].

McIntyre v. Strausser, 365 Pa. 507, 509, 76 A.2d 220, 221 (1950) (emphasis in original).

The exceptions to the “going and coming” rule have been further refined to include four conditions under which the rule would not apply:

1) where the contract of employment included the provision of transportation to and from work;
2) where the claimant has no fixed place of work;
3) where the claimant is on a special mission for his employer;
4) where special circumstances exist such that the claimant is furthering the business of the employer.

Rittner v. Workmen’s Compensation Appeal Board, 76 Pa.Cmwlth. 596, 600, 464 A.2d 675, 678 (1983). See also, Hall v. Midland Insurance Company, 320 Pa.Super. 281, 467 A.2d 324 (1983); Newman v. Congregation of Mercy and Truth, 196 Pa.Super. 350, 353, 175 A.2d 160, 162 (1961).

It is undisputed that at the time the car was struck, Mr. Hastings was off his employer’s premises at the end of a normal work day, with no plans to return until the following morning. The car in question, a 1984 Ford Thunderbird, was unregistered, bearing dealer’s license plates, and insured under a fleet policy. Appellant John Kennedy Ford was reimbursed by Mr. Hastings at the rate of approximately $25 per week for the use of this vehicle. It is the status of the car upon which the trial court and the parties have focused their attention in arguing whether Hastings was or was not acting within the course and scope of his employment, appellants insisting that the automobile was furnished solely for Mr. Hastings’ benefit, and appellees that the salesman’s operation of the car constituted it a mobile advertisement for the manufacturer and the dealership. It is with the latter that the trial court agreed, relying on decisional law from Tennessee, Anderson v. Sam Monday Motors, 619 S.W.2d 382 (1981), to support its conclusion that Mr. Hastings was engaged in furthering his employer’s business while driving the car it provided. We are not, however, bound by the law of another state. Apfelbaum v. Markley, 134 Pa.Super. 392, 3 A.2d 975 (1939).

In Hall v. Midland Insurance Company, supra, this court has addressed a situation with some features closely approximating those herein. In that case the injured party was also a salesman, albeit not of automobiles, who had left for his home at the end of a workday driving a car provided by his employer. He was employed under an oral contract which did not include the provision of transportation to and from work; he had a fixed place of work, did not intend to conduct business at home on the night of the accident, and was not engaged on a special mission for this employer or in any deliberate furtherance of its interests. We found that under those circumstances, the mere fact that the car was owned by the employer could not support the conclusion that Hall’s injuries had occurred in the course of his employment. See also, Hess v. Workman’s Compensation Appeal Board, 17 Pa.Cmwlth. 87, 329 A.2d 923 (1975).

The result in Hall serves to underscore two major difficulties with the instant case. As Mr. Hastings accurately points out, only two of the four exceptions could possibly apply, i.e., those concerning contractual arrangements, and furtherance of the employer’s business, the latter being based purely on the fact that the car involved is a demonstrator model belonging to an automobile dealer.

Addressing these in reverse order, we find that despite the factual difference between Hall and the instant case as to the business in which the claimant is engaged, Hall nevertheless controls. Appellee’s arguments, which are based on this difference, would have us accept that the small fee charged Hastings by appellant John Kennedy Ford for use of the car evidenced his furtherance of the employer’s business, as did the fact that the car bore a sticker advertising its source. We find neither of these persuasive. In the first instance, and under the circumstances, we find the car to have been provided as a benefit to the employee, the reduced price being incidental to the nature of the employer’s business, and thus to the ready availability of such a benefit. As to the sticker, we find that such an advertising method is no more peculiar to a car salesman than to any other driver whose automobile bears the name of the seller.

As to the first of these exceptions, the record contains no evidence as to the contents of Hastings’ employment contract. Hastings’ deposition testimony has been made part of the record only in excerpted form, and we have before us no evidence of the employment relationship from appellants save denials made in the pleadings responsive to appellee’s assertions. Whether Hastings was acting in the course and scope of his employment is a question of law to be determined on the basis of the facts of record. Helinek v. Helinek, 337 Pa.Super. 497, 502, 487 A.2d 369, 372 (1985). Here, whether appellant John Kennedy Ford was contractually obligated to provide the car, thus constituting Hastings’ accident as in the course and scope of his employment, is a genuine issue of material fact. We therefore find that summary judgment was inappropriately entered.

Reversed and remanded for further proceeding consistent with this memorandum. Jurisdiction is relinquished.

      . We assume that the contract is oral since no allegation has been made to the contrary, and since no document purporting to be an employment contract has been produced.