author: POPOVICH, Judge:

text:
    675 A.2d 353
    Michelle BREUNINGER, Appellant, v. PENNLAND INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Jan. 10, 1996.
    Filed April 26, 1996.

      Mitchell S. Greenspan, Philadelphia, for appellant.
    Frederick T. Lachat, Jr., Philadelphia, for appellee.
    Before KELLY, POPOVICH and MONTEMURO , JJ.

       Retired Justice assigned to Superior Court.

   POPOVICH, Judge:

This is an appeal from an order of the Court of Common Pleas of Delaware County granting summary judgment in favor of Pennland Insurance Company (Pennland) in an action for declaratory judgment instituted to interpret coverage provided by a policy of automobile insurance. The lower court’s order was based on its belief that Breuninger (the insured) was entitled to $35,000.00 in uninsured and underinsured motorist coverage (UM/UIM), and not $100,000.00 as was claimed by her. On appeal, the insured contends that the lower court erred when it granted summary judgment in favor of Pennland. Specifically, the insured contends the following: 1) The lower court erred when it found that she knowingly and voluntarily selected $35,000.00 in UM/UIM coverage under her policy with Harleysville Mutual Insurance Company (Harleysville) and 2) The lower court erred when it found that she knowingly and voluntarily selected $35,000.00 in UM/UIM coverage under her policy -with Pennland or that, in the alternative, Pennland “stood in the shoes” of Harleysville. After a careful review of the rather recently developed case law in this area, we affirm.

Our scope of review is plenary when reviewing the propriety of a lower court’s entry of summary judgment. Schriver v. Mazziotti, 432 Pa.Super. 276, 638 A.2d 224, 225 (1994), alloc. denied, 539 Pa. 638, 650 A.2d 52 (1994). We must examine the entire record in the. light most favorable to the non-moving party and resolve all doubts against the moving party when determining if there is a genuine issue of material fact. Chrysler Credit Corp. v. Smith, 434 Pa.Super. 429, 643 A.2d 1098, 1100 (1994). We will only reverse the lower court’s grant of summary judgment if there is a manifest abuse of discretion. Accu-Weather, Inc. v. Prospect Communications, Inc., 435 Pa.Super. 93, 644 A.2d 1251 (1994). An abuse of discretion occurs “when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will.” Coker v. S.M. Flickinger Co., Inc., 533 Pa. 441, 625 A.2d 1181, 1185 (1993). Summary judgment should be granted “only in cases where the right is clear and free of doubt.” Chrysler Credit Corp., 643 A.2d at 1100 (citation omitted). “Summary judgment serves to eliminate the waste of time and resources of both litigants and the courts in cases where a trial would be a useless formality.” Liles v. Balmer, 389 Pa.Super. 451, 567 A.2d 691, 692 (1989).

Keeping this standard in mind, we find that the pertinent, undisputed facts underlying this cause of action are as follows: The insured originally procured automobile insurance from Harleysville. In 1984, the insured’s policy with Harleysville became subject to the Motor Vehicle Financial Responsibility Law (MVFRL). On February 24, 1984, the insured was issued an amended declaration page by Harleysville for the period from April 3,1984 to October 3,1984, providing liability coverage of $50,000.00 and UM/UIM coverage of $50,000.00. In July 1984, the insured received an “Important Notice” form from Harleysville as was required by Section 1791 of the MVFRL. The “Important Notice” explained that insurance companies were required to make certain benefits available to insureds, including the option to purchase uninsured, underinsured and bodily injury liability coverage up to at least $100,000.00 because of injury to one person in any one accident. In her own handwriting, the insured noted on the “Important Notice” that she wanted $35,000.00 in UM/UIM coverage. However, the “Important Notice” was neither signed nor returned to Harleysville by the insured.

The “Important Notice” indicated to the insured that “Your signature on the Coverage Selection Form or your payment of any renewal premiums evidences your actual knowledge and understanding of the availability of these benefits and limits as well as the benefits and limits you have selected.” The insured paid the renewal premium and on September 19, 1984, she received a renewal declarations page, effective for the policy period of October 3, 1984 to April 3, 1985, with liability limits of $50,000.00 and $35,000.00 in UM/UIM coverage.

On February 24,1987, Harleysville, at the insured’s request, issued a renewal declaration increasing the insured’s liability coverage to $100,000.00, but leaving the UM/UIM coverage at $35,000.00. The insured received her renewal declaration pages for the policy on a semi-annual basis, and, each time, she indicated which coverage and limits she wanted. On approximately July 14, 1990, Harleysville sent another coverage selection form to the insured. This form again advised her of her options under the MVFRL. Again, the insured indicated on the form that she wanted $100,000.00 for liability coverage and $35,000.00 in UM/UIM coverage. This form was then signed by the insured and was returned to Harleysville.

On approximately February 11, 1991, Harleysville sent the insured a policy jacket and declaration for the period from April 3, 1991 to October 3, 1991, reflecting $100,000.00 for liability coverage and $35,000.00 for UM/UIM coverage. The policy period from April 3, 1993 to November 3, 1993 also reflected $100,00.00 for liability coverage and $35,000.00 for UM/UIM coverage.

On April 3, 1991, Harleysville transferred the insured’s policy to Pennland, a wholly owned subsidiary of Harleysville, under the same policy number. This transfer was approved by the Insurance Department of Pennsylvania. Pennland did not send the insured an “Important Notice” form nor any other coverage selection form pursuant to Section 1791. Pennland did send the insured a form entitled “Renewal Notice,” whereby she was informed that her coverage was to remain the same.

On August 28, 1993, the insured was struck by a motor vehicle driven by Fernando Tellado. This accident is the genesis of the matter now before us. Shortly after the accident, the insured was paid $15,000.00 by Allstate Insurance Company, who insured Fernando Tellado. Pennland waived any and all subrogation rights which it may have had, and granted the insured consent to settle in accordance with the policy of insurance under which she was covered.

The insured later made a demand upon Pennland for under-insured motorist coverage benefits of $100,000.00, even though the policy under which she was covered provided for only $35,000.00 in underinsured motorist benefits. The insured argues that she did not knowingly and voluntarily elect the $35,000.00 UM/UIM limit as is mandated by MVFRL. In the absence of a valid election of UM/UIM limits, she argues that the MVFRL mandates that the UM/UIM limit be equal to the bodily injury limit of $100,000.00. The insured further argues that her election was not voluntary because Pennland never provided her with an “Important Notice” form. Pennland admits that it never provided the insured with an “Important Notice” form, but argues that it was not required to do so because of its relationship with Harleysville. Pennland paid the insured $35,000.00, but refused to pay her the remaining $65,000.00 which she claimed.

The insured filed an action for declaratory judgment. The parties cross-filed motions for summary judgment. The lower court held oral argument on these motions, and, subsequently, granted Pennland’s motion for summary judgment, thereby determining that the insured was not entitled to the $65,000.00 which she claimed. This appeal followed.

At the outset, we note that there was no genuine issue of material fact regarding the evidence submitted in this case. The only issue to be resolved by the lower court was whether the insured knowingly and voluntarily selected $35,000.00 in UM/UIM coverage as a matter of law. As stated previously, the lower court determined that the insured knowingly and voluntarily selected $35,000.00 in UM/UIM coverage. We find this decision was not an abuse of the lower court’s discretion, and, therefore, the lower court properly granted summary judgment in favor of Pennland.

The MVFRL provides that insurers must offer UM/ UIM coverage in amounts equal to the bodily injury liability coverage except where the named insured requests in writing coverage in amounts less than the limits of liability for bodily injury. 75 Pa.C.S.A. §§ 1731, 1733, 1734. See Tukovits v. Prudential Ins. Co., 448 Pa.Super. 540, 672 A.2d 786 (1996). The insurer must inform the named insured that she may reject UM/UIM coverage by signing a specific written rejection form. Insurance Co. of State of Pa. v. Miller, 426 Pa.Super. 519, 627 A.2d 797 (1993). In addition, Section 1791 of the MVFRL requires an insurer to furnish the policy applicant with an “Important Notice.” This notice must advise the applicant of the types and amounts of coverages which are required to be offered to her. Motorists Ins. Co. v. Emig, 444 Pa.Super. 524, 664 A.2d 559 (1995). This notice must also inform the applicant that she may purchase or reject these coverages. Id. The applicant must also be made aware that she may purchase coverages in higher or lower amounts than those set forth in the “Important Notice.” Id. Section 1791 provides the method of apprising an insured of the benefits and limits available pursuant to the statute. That section states 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 is given to the applicant at the time of application for the original coverage or at the time of the first renewal after October 1, 1984, and no other notice or rejection shall be required____

Miller, 627 A.2d at 799. Section 1791 then sets out the precise language required for the notice which informs the insured of the insurer’s statutory responsibility to make certain levels of benefits available and specifies the required amounts. Miller, supra. Finally, “[Section] ... 1791 provides ‘[y]our signature on this notice or your payment of any renewal premium evidences your actual knowledge and understanding of the availability of these benefits and limits as well as the benefits you have selected.’ ” Id., 627 A.2d at 799 (citation omitted).

We have held that if the insurer strictly follows Section 1791, there is a conclusive presumption that the insured has actual knowledge of the coverage available to her under the MVFRL. Tukovits, supra; Lambert v. McClure, 407 Pa.Super. 257, 595 A.2d 629 (1991).

In this case, the insured’s first argument is that she did not knowingly and voluntarily select $35,000.00 in UM/ UIM coverage under her policy with Harleysville. Pennland asserts that Harleysville strictly followed the mandates of Section 1791 when it sent the “Important Notice” to the insured. The insured does not deny that she received the “Important Notice” form from Harleysville, but argues that she neither signed nor returned the “Important Notice” to Harleysville. Pennland contends that the insured’s receipt of the statutory “Important Notice,” her payment of the renewal premiums and her signature on the coverage selection form operate as a conclusive presumption that she actually knew and understood that her UM/UIM coverage limit was $35,-000.00 instead of $100,000.00. We agree that when Harleysville provided the insured with the “Important Notice” form, a conclusive presumption that the insured had notice of the UM/UIM limits and coverages available was established. See Emig, supra (holding that upon receipt of the “Important Notice,” a conclusive presumption of notice was established). However, under Section 1734, it is necessary for the insurer to demonstrate that not only did the insured have notice as to the limits and coverages available, but also that the insured voluntarily signed a waiver reducing her UM/UIM coverage. Here, Pennland has demonstrated that Harleysville met this requirement.

Section 1734 requires the named insured to request in writing that the limits of her coverage be lowered. Emig, 664 A.2d at 563. Short of a written request by the insured for the lower coverage, Harleysville was not authorized to alter her policy. The “Important Notice” required under Section 1791 is merely a notice to the insured that she must be offered certain benefits in certain amounts which she may accept, reject or reduce. Id., 664 A.2d at 569. “Thus, Section 1791 does not provide the means for selection, rejection or reduction of these offered benefits.... The ‘Important Notice’ merely informs ... [the insured] that she is presumed to know and understand those benefits offered and those benefits which she has selected____” Id. However, in order for the conclusive presumption of Section 1791 to be effective, an insured must have actually selected coverage, and the selection process must be in conformity with Section 1734, i.e., the insured must have requested in writing a lower UM/UIM coverage.

Here, it is undisputed that although the insured indicated on the “Important Notice” that she wanted $35,-000.00 in UM/UIM coverage, the insured neither signed nor returned the “Important Notice” to Harleysville. Therefore, the insured cannot be found to have requested a lower coverage in writing on this basis. In addition, the insured’s payment of her premiums for several years thereafter can not operate as a waiver under Sections 1734 and 1791. See Botsko v. Donegal Mut. Ins. Co., 423 Pa.Super. 41, 620 A.2d 30 (1993) (“The apparent absence of waiver is not changed by the fact that the insured paid the same annual premium for several years thereafter.”). However, the record is clear that on July 14,1990, Harleysville again provided the insured with notice of the UM/UIM coverage options available to her under the MVFRL and provided her with a coverage selection form. The insured signed and returned to Harleysville this coverage selection form whereby she indicated that she wished to reject the stacking of uninsured coverage limits. One of the questions on the coverage selection form was as follows: “Do you want to continue with your current uninsured and underinsured motorist limits? If you answered No, check the box with the limits you desire which cannot exceed your liability limits.” The form then provided the insured with the choices of $35,000.00, $50,000.00, $75,000.00, $100,000.00, $200,000.00, and $300,000.00 in UM/UIM coverage. The insured indicated on the coverage selection form that she wished to continue with her then current UM/UIM coverage, signed the form and returned it to Harleysville. The insured admits that when she signed this coverage selection form on July 14, 1990, she was aware that her then current UM/UIM coverage was $35,-000.00. Based on the insured’s receipt of the “Important Notice” and her completion of this coverage selection form, we find that the lower court did not abuse its discretion or commit an error of law when it determined that the insured knowingly and voluntarily selected $35,000.00 in UM/UIM coverage under her policy with Harleysville.

The insured’s next contention is an issue of first impression in this Commonwealth. The insured argues that when her automobile insurance policy was transferred from Harleysville to Pennland, the latter was required to meet the requirements under Section 1791 of the MVFRL and that it could not simply “stand in the shoes” of Harleysville for this purpose.

The record discloses that on April 3, 1991, Harleysville transferred the insured’s policy to its wholly owned subsidiary, Pennland. It is undisputed that Pennland sent the insured a form entitled “Renewal Notice,” whereby she was informed that her policy number remained in effect, that her coverage remained exactly the same and that her premium would not be changed. The insured’s policy with Harleysville was not cancelled and, therefore, the insured was not required to apply for automobile insurance with Pennland. That is, the insured was never an “applicant” for automobile insurance with Penn-land. The only relevant difference between the insured’s policy with Harleysville and her policy with Pennland was the name of the insurer. Moreover, the record reveals that the insured never objected to the transfer of her policy to Penn-land and that she made her premium payments to Pennland.

It is further undisputed that after the transfer of the insured’s policy was completed, Pennland never sent the insured an “Important Notice” form nor any other coverage selection form. The insured alleges that this was in violation of Section 1791 of the MVFRL, and, therefore, it cannot be shown that she knowingly and voluntarily selected $35,000.00 in UM/UIM coverage. We disagree.

Section 1791 of the MVFRL provides, in pertinent part, as follows:

§ 1791. NOTICE OF AVAILABLE BENEFITS AND LIMITS
It 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----

75 Pa.C.S.A. § 1791 (emphasis added). In determining whether Pennland’s failure to send the insured an “Important Notice” precludes the application of the conclusive presumption of Section 1791, we are guided by several provisions of the Statutory Construction Act, 1 Pa.C.S.A. §§ 1501 et seq. The first provision which we consider is Section 1921. This section provides, in pertinent part, that “[t]he object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly____” 1 Pa.C.S.A. § 1921(a). In construing a legislative enactment, we must ascertain and give effect to legislative intention as expressed in the language employed by the statute. Bonasi v. Board of Adjustment of Haverford Township, 382 Pa. 307, 115 A.2d 225 (1955).

In addition, under the mandates of Section 1903(a), when the language of a statute is clear, “[wjords and phrases shall be construed according to rules of grammar and according to their common and approved usage____” 1 Pa.C.S.A. § 1903(a). Statutes are presumed to employ words in their popular, plain and everyday sense, and the popular meaning of such words must prevail unless the statute defines them otherwise or unless the context of the statute requires another meaning. Treaster v. Union Township, 430 Pa. 223, 242 A.2d 252 (1968).

We find that the language of Section 1791 is plain, unambiguous and conveys a clear and definite meaning. Also, we find that the context of the statute does not require a meaning other than the popular, plain and everyday meaning of the words employed. Clearly, as the express language of Section 1791 indicates, the MVFRL requires insurers to provide individuals with notice concerning the availability of UM/UIM coverage only at the time of “application for original coverage” or at the time of the “first renewal after October 1, 1984.” Here, the statute does not define the meaning of “application for original coverage” or at the time of the “first renewal after October 1, 1984.” Therefore, we shall construe the language of Section 1791 according to its common, plain and everyday meaning. We note that Black’s Law Dictionary defines “application” in the context of insurance as “[t]he preliminary request, declaration, or statement made by a party applying for an insurance policy____” Black’s Law Dictionary 90 (5th ed. 1979).

The record is clear that the insured never applied for original coverage with Pennland. That is, she never made a preliminary request, declaration or statement in regard to the insurance policy at issue after it was transferred to Pennland. In fact, it would have been impossible for the insured to have done so because the policy held by Pennland was exactly the same policy held by Harleysville. It is undisputed that the insured’s policy remained in effect and unchanged when it was transferred to Pennland. In addition, the record is clear that she was provided with notice as to the available UM/UIM coverage prior to her first renewal after October 1,1984, when the policy at issue was held by Harleysville. Therefore, we find that based on the express language of Section 1791, the legislature did not intend for another “Important Notice” to be sent to the insured by Pennland in this situation. Accordingly, we reject the insured’s argument that Pennland was required to provide her with an “Important Notice” form pursuant to Section 1791.

Considering all of the evidence in the light most favorable to the insured, we find that the evidence proved waiver as a matter of law in regard to her UM/UIM coverage. Accordingly, we find that the lower court did not abuse its discretion when it determined that the insured knowingly and voluntarily reduced her UM/UIM coverage in writing and granted summary judgment in favor of Pennland.

Order affirmed.

      . In this case, the insurance policy at issue was procured by the insured's mother, under which the named insured was covered.

      . 75 Pa.C.S.A. §§ 1701-1799.7.


source: Caselaw Access Project

author: MONTEMURO, Senior Judge:

license: Public Domain

text:
    675 A.2d 711
    Basile PAPPAS and Theodora Pappas, H/W v. David S. ASBEL, D.O. and Pennsylvania Hospital Insurance Co. (PHICO). The COMMONWEALTH OF PENNSYLVANIA MEDICAL PROFESSIONAL LIABILITY CATASTROPHE LOSS FUND (CAT FUND) v. UNITED STATES HEALTHCARE SYSTEMS OF PENNSYLVANIA, INC. Appeal of PHICO INSURANCE COMPANY and The Pennsylvania Medical Professional Liability Catastrophe Loss Fund.
    Superior Court of Pennsylvania.
    Argued Jan. 9, 1996.
    Filed March 15, 1996.
    Reargument Denied May 23, 1996.

      Stephen A. Ryan, Bala Cynwyd, for appellant.
    Sheila A. Harén, Philadelphia, for Asbel, appellee.
    Before KELLY and HOFFMAN, JJ. and MONTEMURO, Senior Judge.

       Retired Justice assigned to Superior Court.

   MONTEMURO, Senior Judge:

This appeal lies from an order granting summary judgment to appellee, United States Healthcare, Inc. (USHC), on the basis that the third party complaint of appellant Haverford Community Hospital is preempted by Section 1144(a) of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001, et seg.

On May 20, 1990, Basile Pappas, a subscriber to USHC, an HMO provided through his wife’s employment, presented himself at the offices of his primary care physician, Dr. David Asbel, complaining of neck and shoulder pain. The treatment administered was an intramuscular injection of steroids. By the next day, Mr. Pappas’ condition had deteriorated significantly, and, unable to walk, complaining of numbness in his arms, chest, abdomen and legs, he was transported to appellant Haverford Community Hospital at 11:00 a.m. There, after examination and preliminary testing which revealed an abnormally elevated white blood cell count, Mr. Pappas was preliminarily diagnosed as suffering from a cervical epidural abscess which was compressing his spinal cord. Dr. Dickter, the emergency room physician responsible for Mr. Pappas’ care, determined that the case constituted a neurologic emergency requiring further, immediate diagnosis and treatment at a university hospital with more extensive facilities than those available at Haverford.

After telephone consultation with Dr. Asbel, as well as Haverford’s staff neurologist and neurosurgeon, arrangements were made by 12:30 to transfer Mr. Pappas to Thomas Jefferson University Hospital, which, possessing a spinal cord trauma unit, was able to assure Mr. Pappas’ immediate admission. However, at 12:40 the ambulance service which was to transport Mr. Pappas informed the physicians at Haverford that as Jefferson was not an approved facility, authorization for Mr. Pappas’ removal there was not forthcoming from USHC. At 12:50, Dr. Dickter telephoned USHC in an attempt to obtain authorization, and to do so quickly in view of the nature of the emergency. At 1:05, Dr. Dickter was informed by USHC that, after review, authorization for treatment at Jefferson was still being denied, but that Mr. Pappas could be removed to Hahnemann University, Temple University or Medical College of Pennsylvania. The USHC physician who had made this decision refused to speak directly to Dr. Dickter, despite several requests that he do so, and after USHC was informed that Mr. Pappas’ condition could worsen or become permanent. Rather, USHC’s position was communicated through administrative personnel. Since Dr. Asbel expressed a preference for Hahnemann, that facility was contacted immediately but advised Haverford at about 2:20 p.m. that it would not have information on its ability to receive Mr. Pappas for at least another half hour. MCP was then reached and within minutes notified the physicians that it could accept Mr. Pap-pas, who was ultimately transported there at about 3:30 p.m. Mr. Pappas now suffers from permanent quadriplegia resulting from compression of his spine by the abscess.

Mr. Pappas brought suit against Asbel and Haverford, claiming various forms of malpractice as to the former, and as to the latter, negligence in causing an inordinate delay in transferring him to a facility equipped and immediately able to address the neurological emergency, thus exacerbating the compression of the spine which caused his quadriplegia. Haverford then filed a third party complaint against USHC, joining it as a party defendant for its refusal to authorize the transfer of Mr. Pappas to the hospital selected by the Haverford physicians, and adopting the negligence claims lodged against it in the original complaint. In his answer and new matter, Dr. Asbel filed a cross claim against USHC seeking contribution and/or indemnity. After filing both Answer and New Matter and Preliminary Objections, which failed to mention preemption, USHC successfully filed a motion for summary judgment alleging that the third party complaint should be dismissed, having been preempted by § 1144(a) of ERISA. This appeal followed, presenting the question of whether ERISA was correctly determined to preempt Haverford’s claim, characterized by appellant as a state law claim unrelated to ERISA or employee benefits, against USHC.

The terms "employee welfare benefit plan” and welfare plan mean any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that such plan, fund or program was established or maintained for the purpose of providing for its participants or beneficiaries, through the purchase of insurance or otherwise, (A) medical surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits, apprenticeship or other training programs, or day care centers, scholarship funds, or prepaid legal services, or (B) any benefits described in section 3023(c) of the Labor Management Relations Act, 1947 [29 USCS § 186(c) ] (other than pensions on retirement or death, and insurance to provide such pensions).

In reviewing a grant of summary judgment we must determine whether, in view of the pleadings, depositions, answers to interrogatories, admissions on file, together with any affidavits, any genuine issue of material fact exists in the case, and, if not, whether the moving party is entitled to judgment as a matter of law. Moreover, the moving party’s right to such a judgment must be clear and free from doubt. Musser v. Vilsmeier Auction Co., Inc., 522 Pa. 367, 562 A.2d 279 (1989); Pa.R.C.P. 1035.

29 U.S.C. § 1144(a) reads in pertinent part as follows:

Except as provided in subsection (b) of this section, the provisions of this title ... shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan ... (emphasis added).

It may, without fear of contradiction, be asserted that the Supremacy Clause, United States Constitution, Art. VI, expressly or by implication commands preemption of a state law where such law conflicts with federal law. Pacific Gas and Electric Co. v. State Energy Resources Conservation and Development Commission, 461 U.S. 190, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983). It is also well settled that ERISA’s supersession provision is vast in its application. Ingersoll-Rand v. McClendon, 498 U.S. 133, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990). However, the question still remains as to the precise reach of the phrase “insofar as they ... relate to ...” In Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983), the United States Supreme Court held that “[a] law ‘relates to’ an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan.” Id. at 97, 103 S.Ct. at 2900. The trial court in this matter found that the allegations in Haverford’s third party complaint all “f[e]ll within the rubric of administration of an employee benefit plan” because they concerned specific actions taken by USHC, namely its refusal to approve Mr. Pappas’ transfer to a facility where the care he needed was available immediately as the emergent nature of his condition required.

Because the limitations supplied by the cases attempting to define “relate to” are necessarily vague, the district and circuit courts which have considered the matter of HMO involvement are split on the precise extent of ERISA’s reach. A number of federal court cases impose preemption on efforts to hold an HMO liable for injuries resulting from certain of its decisions on the basis that any attempt to seek redress constitutes an attack on the administration of the HMO, the position adopted by the trial court herein, and thus imposes a restriction such as the Act seeks to avoid. See, e.g., Kuhl v. Lincoln National Health Plan, 999 F.2d 298 (8th Cir.1993), cert. denied, 510 U.S. 1045, 114 S.Ct. 694, 126 L.Ed.2d 661 (1994) (claim against HMO for denying surgical precertification preempted by ERISA); Corcoran v. United Healthcare, Inc., 965 F.2d 1321 (1992), cert. denied, 506 U.S. 1033, 113 S.Ct. 812, 121 L.Ed.2d 684 (1992) (claims against HMO for failure to provide hospitalization to expectant mother resulting in death of unborn child). All of these cases have in common the reasoning that the state law claims involved necessarily “relate to” administration of the plans in question and are therefore preempted under the broad sweep of § 1144(a).

The United States Supreme Court, however, albeit in dealing with factual settings which differ from the sorts of claims involved in these cases, has refined the “relate to” language, thus truncating it to some extent. In Mackey v. Lanier Collection Agency and Service, 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988), attendant upon a finding that a state garnishment action against participants in an ERISA plan providing vacation and holiday benefits was not preempted, the Court noted:

ERISA plans may be sued in a second type of civil action as well. These cases — lawsuits against ERISA plans for run of the mill state law claims such as unpaid rent, failure to pay creditors, or even torts committed by an ERISA plan — are relatively commonplace. Petitioners and the United States (appearing here as amicus curiae) concede that these suits, although obviously affecting and involving ERISA plans and their trustees, are not preempted by ERISA § 514(a).

Id. at 833,108 S.Ct. at 2187 (emphasis added).

In the recent case of New York Blue Cross v. Travelers Insurance Co., — U.S. —, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995), the Court has indicated that § 1144(a) may well be further limited. There, the Court examined a New York statute which requires hospitals to collect surcharges from patients covered by designated commercial insurers and imposes a surcharge on certain HMO’s, but exempts from the surcharges those patients insured by a Blue Cross/Blue Shield plan. In holding that the surcharge provisions do not “relate to” employee benefit plans, the Court noted that the language of ERISA is so expansive as to be, for all practical purposes, infinite: unless read in conjunction with the structure and purpose of the statute as a whole, the words of limitation, “insofar as they ... relate to ...,” are not limiting at all, and Congress’ intention must be interpreted as a sham. Id. at —, 115 S.Ct. at 1677. Rather, the Court determined to “go beyond the unhelpful text and the frustrating difficulty of defining its key term, and look instead to the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive.” Id. The Court then observed that “[t]he basic thrust of the preemption clause ... was to avoid a multiplicity of regulation in order to permit the nationally uniform administration of employee benefit plans,” id. at —, 115 S.Ct. at 1677-78, that is, to protect it from conflicting directives. However, the Court went on to note that “nothing in the language of the Act or the context of its passage indicates that Congress chose to displace general health care regulation, which historically has been a matter of local concern.” Id. at —, 115 S.Ct. at 1680. The Court extrapolated from its findings that “a law operating as an indirect source of merely economic influence on administrative decisions ... should not suffice to trigger preemption.” Id.

This last is especially pertinent to the question presented here despite the variance in context. What is at issue is a negligence claim identical to the one lodged against Haverford by Mr. Pappas in the underlying complaint. The type of recovery sought is based on negligence attributable to the delay occasioned by a cost containment protocol set by a for-profit organization, and which is aimed at conserving and increasing its profits, an intention diametrically opposed to ERISA’s general purpose of protecting the rights of a plan’s beneficiaries. Decisions such as that made by USHC concerning where Mr. Pappas might receive treatment are propelled by dollar savings, not the protection of worker’s rights, in this case the right to the most effective medical care, which was the original focus of ERISA. In fact, the argument has never been advanced that the decision to withhold approval for transfer to Jefferson was at all related to medical considerations.

Considerations of cost containment of the type which drive the decision making process in HMO’s did not exist for employee welfare plans when ERISA was enacted. It cannot therefore be argued that the type of recovery sought here was deliberately excluded from the Congressional schema in order to protect ERISA plans from conflicting directives which would, in attempting to control expenses, affect medical judgments. A tort claim such as that advanced here is, in fact, “an indirect source of merely economic influence on administrative decisions.” Id. To find that such claims are preempted because they may interfere with what is in essence a business decision made in the financial interests of a commercial entity is inconsistent with the intention of ERISA and should not “suffice to trigger preemption.” Id.

This conclusion is consistent with cases in which courts found that a particular state claim is not preempted, based on the rationale that the state law involved affects ERISA in an indirect manner, or is so tenuous or remote as to obviate the necessity for preemption. Greenblatt v. Budd, 666 F.Supp. 735, 741 (E.D.Pa.1987) (common law action for misrepresentation by employee whose pension benefits were denied after company merger not preempted.) To make such a determination, it is the state statute which must be examined, and an assessment made of whether the action represents exercise of a classically important state function preempted neither expressly or impliedly by ERISA. Id. Contrast, Memorial Hospital System v. Northbrook Life Insurance Company, 904 F.2d 236 (5th Cir.1009) (action for deceptive trade practices by health care provider against plan trustees not preempted, because enforcing allocation of risks between commercial entities conducting business in a state is a classically important state interest, and because health care provider is not a party to plan.) General health care regulation is, as has already been noted, traditionally an area of state concern. New York Blue Cross, supra.

While decisions of the federal district courts and courts of appeal, including those of the Third Circuit, are not binding on Pennsylvania courts, even where a federal question is involved, Breckline v. Metropolitan Life Insurance Company, 406 Pa. 573, 578, 178 A.2d 748, 751 (1962), they are both persuasive as to federal questions, Chiropractic Nutritional Associates, Inc. v. Empire Blue Cross and Blue Shield, Inc., 447 Pa.Super. 436, 445, 669 A.2d 975, 980 (1995), and those of the Third Circuit are appropriate for this court to follow where the United States Supreme Court has not spoken. Id. In Dukes v. US Healthcare, Inc., 57 F.3d 350, 357 (3d Cir.1995) (claims for direct negligence of HMO remanded to state court for determination of whether preemption was mandated), the Third Circuit recognized that “Quality control of benefits ... is a field traditionally occupied by state regulation, and we interpret the silence of Congress as reflecting an intent that it remains so.” See also, Independence HMO, Inc. v. Smith, 733 F.Supp. 983 (1990) (state court action for medical malpractice under ostensible agency theory not preempted by ERISA).

In Krashna v. Oliver Realty Inc., 895 F.2d 111 (3d Cir.1990), albeit in another context, the Court of Appeals for the Third Circuit stated that in order to show that what purports to be a state law claim is completely preempted by federal statute, two factors must be shown:

First, “the statute relied upon by the defendant as preemptive [must] eontain[ ] civil enforcement provisions within the scope of which the plaintiffs state claim falls.” ... The federal statute must subsume the interest vindicated by the state law, not the remedy provided.... Second, there must be “a clear indication of a Congressional intention to permit removal despite the plaintiffs exclusive reliance on state law.”

Id. at 114, quoting Railway Labor Executives Ass’n. v. Pittsburgh & L.E. R.R., 858 F.2d 936, 942 (3d Cir.1988). See also, Plucinski v. I.A.M. National Pension Fund, et al, 875 F.2d 1052 (3d Cir.1989) (In accountancy malpractice case brought by a plan, the conclusion was reached that ERISA does not generally preempt state professional malpractice claims.)

ERISA’s civil enforcement provision, § 1132(a)(1)(B), permits beneficiaries of employee welfare plans to “recover benefits due ... under the terms of the plan,” “to enforce ... rights under the terms of the plan or to clarify rights to future benefits under the terms of the plan.” As the Dukes court observes,

Inherent in the phrases “rights under the terms of the plan” and “benefits due ... under the terms of [the] plan” is the notion that plan participants and beneficiaries will [by means of litigating tort claims] receive something to which they would not otherwise be entitled. But patients enjoy the right to be free from medical malpractice regardless of whether or not their medical care is provided through an ERISA plan. Id. at 358.

This court has ruled that negligence claims are not preempted by ERISA, as they are not “related to” it. See, McClellan v. Health Maintenance Organization of Pennsylvania, 413 Pa.Super. 128, 604 A.2d 1053, appeal denied, 532 Pa. 664, 616 A.2d 985 (1992) (suit based on liability of HMO for negligence of agent/physician and on intentional misrepresentation or fraud by HMO itself); DeGenova v. Ansel, 382 Pa.Super. 213, 555 A.2d 147 (1988) (suit based on vicarious liability of HMO for the negligence of its agent/physician). Nor are these claims covered by ERISA’s civil enforcement provisions. The DeGenova court specifically found that the “appellants were not seeking ERISA benefits or claiming improper distribution or administration of ERISA benefits,” Id. at 219, 555 A.2d at 150, and thus preemption did not apply.

The negligence claims at issue here too have, in fact, no connection to the benefit scheme which Congress sought to protect by preempting laws tending to produce conflicting systemic demands; ERISA is in no way implicated by the claim that USHC negligently caused Mr. Pappas’ injuries by its delay in authorizing his transfer. Appellants do not seek benefits denied, because Mr. Pappas was transferred to a hospital capable of supplying the needed services; they do not seek to challenge the administration of the Plan, again because there is no complaint that USHC did not perform its duties. Rather, the argument is that USHC performed its duties in a negligent manner given the exigent nature of the emergency. Finally, if the original complaint had claimed that USHC was vicariously liable because of the negligence of its contracting agents, Dr. Asbel and Haverford, in securing Mr. Pappas’ transfer, there would be no question under McClellan and DeGenova that the claim would withstand preemption.

As the Corcoran court points out, to conclude that the preemption of all other claims was incorporated into Congress’ intent in enacting ERISA necessarily assigns to Congress the concomitant intent to deprive plaintiffs injured by such negligence of any remedy, state or federal, for serious errors perpetrated by HMO’s. However, the Supreme Court of the United States, in analyzing the application of preemption clauses in other statutes, found it “difficult to believe that Congress would, without comment, remove all judicial recourse for those injured by illegal conduct.” Silkwood v. Kerr-McGee Corporation, 464 U.S. 238, 251, 104 S.Ct. 615, 623, 78 L.Ed.2d 443 (1984) (Award of punitive damages arising out of escape of plutonium from federally licensed nuclear facility not preempted by Atomic Energy Act). See also, United Construction Workers v. Laburnum Construction Corporation, 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025 (1954).

We, too, do not believe that Congress can have intended, prior even to invention of the cost containment system which inheres in USHC’s review process, to foreclose recovery to plan beneficiaries injured by negligent medical decisions. We therefore conclude that the negligence claims against appellee are not preempted by ERISA.

The question then becomes what, if any, impact the procedural posture of this case has on the implementation of the preemption provision. The trial court concedes that the “no relation” theory may be a valid one, but concludes that because Haverford Hospital and not Mr. Pappas joined USHC as a party defendant, no theory of recovery which would -otherwise be available could apply. Pa.R.C.P. 2255(d) dispenses with such a distinction:

The plaintiff shall recover from an additional defendant found liable to him alone or jointly with the defendant as though such defendant had been joined as a defendant and duly served and the initial pleading of the plaintiff had averred such liability.

See also, Solomon v. Cedar Acres East, Inc., 455 Pa. 496, 317 A.2d 283 (1974).

The effect of a third party complaint joining an additional defendant is thus to make the additional defendant “immediately subject to the plaintiffs claim in every respect and with the same force and effect as if the additional defendant had been originally named as the defendant” in the plaintiffs complaint. 3 Standard Pennsylvania Practice 2d (1994), § 14:359. The character of the claim does not alter with the procedure used to present it.

Accordingly, we reverse the trial court’s order granting summary judgment and remand for further proceedings consistent with this Opinion.

      . The record does not reveal the field of specialization of this physician, a Dr. Liebowitz.

      . Mr. Pappas’ claims against Dr. Asbel and Haverford were setded by agreement of the parties, and Haverford’s interests vis a vis USHC are now represented by the Pennsylvania Hospital Insurance Company and the Commonwealth of Pennsylvania Medical Professional Catastrophic Loss Fund.

      . There is no question that USHC is an employee benefits plan as defined by ERISA, 29 USCS § 1002(1):

      . Appellee argues that this case is inapposite as it concerned only the issue of whether it was proper to remove the case to federal court based on ERISA’s preemption provision — no decision was reached as to whether this provision actually applied. However, as appellant points out, the court was not able to articulate any plan-created right that was threatened by the plaintiffs’ state law negligence claims. Had it been able to do so the decision as to preemption would not even be regarded as equivocal; the claim would have been dismissed.


text:
    675 A.2d 718
    COMMONWEALTH of Pennsylvania, Appellant, v. Joan McGraw BOWERSOX, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Leroy George BOWERSOX, Appellee.
    Superior Court of Pennsylvania.
    Submitted March 21, 1996.
    Filed April 23, 1996.

      Daniel E. Holmes, Assistant District Attorney, Williams-port, for Commonwealth, appellant.
    Lee A. Ciccarelli, Williamsport, for appellees.
    Before POPOVICH, SAYLOR and EAKIN, JJ.
   POPOVICH, Judge:

The Commonwealth appeals the order of the Court of Common Pleas of Lycoming County granting the appellees’ motions to suppress evidence. We affirm.

Initially, we note that when reviewing the Commonwealth’s appeal from the decision of the suppression court, “we must consider only the evidence of the ... appellees’ witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted.” Commonwealth v. Baer, 439 Pa.Super. 437, 654 A.2d 1058, 1058 (1995) (citation omitted). “If the evidence supports the factual findings of the trial court, we are bound by. such findings, and we may reverse only if the legal conclusions drawn therefrom are in error.” Commonwealth v. Espada, 364 Pa.Super. 604, 528 A.2d 968, 969 (1987) (citation omitted).

After a careful review of the record, we are satisfied that the trial court’s factual findings are supported by the record. However, we are compelled to note several important omissions from the trial court’s summary of the salient facts.

On April 22, 1994, Police Officer Randy Eddinger was on patrol duty in Hughesville, Pennsylvania. While on duty, he was patrolling the area near the Uni-Mart in Hughesville. At around 9:45 p.m., he was parked next to the Uni-Mart. While he was in his vehicle, Officer Eddinger observed the appellees’ vehicle as it pulled into the parking lot of the Uni-Mart. After the vehicle was parked, the officer observed that a male exited the vehicle from the driver’s seat and went into the store. A female passenger and three children, who were seated in the back seat, remained in the vehicle. While the male was in the Uni-Mart, the officer saw the female passenger turn and stare at his police cruiser several times. After approximately three minutes, the male came out of the store and the female climbed over the console in the vehicle to the driver’s seat, and pointed at the male to get into the passenger’s seat. The female then drove the car out of the parking lot. The officer followed the vehicle. Although he did not witness any actual traffic violations, Officer Eddinger immediately activated his cruiser’s lights to stop the appellees’ vehicle. The vehicle pulled over. The officer then approached the vehicle and requested identification from the female driver and the male passenger. The male indicated that he didn’t have a valid driver’s license because it had been suspended. When questioned, the female stated that she knew that the male did not have a valid driver’s license but that she permitted him to drive to the Uni-Mart because she did not want to “fight with him” over who was going to drive. The officer then issued a citation to the male for driving while his operator’s privilege was suspended or revoked. He also issued a citation to the female, the male’s wife, for permitting the male to drive while his operator’s privilege was suspended or revoked.

Following a hearing held before the district justice, the appellees were found guilty of the charged offenses. Timely appeals were made to the Court of Common Pleas of Lycoming County, and the appellees filed motions to suppress all statements and evidence obtained as a result of the stop of their vehicle. The lower court granted the appellees’ motions to suppress all statements and evidence. This appeal followed.

The Commonwealth contends that the trial court erred in concluding that Officer Eddinger did not have articulable and reasonable grounds to suspect or probable cause to believe that appellant was violating the Vehicle Code when Officer Eddinger stopped the appellees’ vehicle. After a careful review of the record, the parties’ briefs and the applicable law, we disagree with the Commonwealth’s contention.

“When [a] police [officer] stop[s] a vehicle in this Commonwealth for investigatory purposes, the vehicle, and its occupants, are considered “seized” and this seizure is subject to constitutional constraints.” Commonwealth v. Knotts, 444 Pa.Super. 60, 663 A.2d 216, 218 (1995) (citation omitted). Here, when Officer Eddinger stopped the appellees’ vehicle on April 22, 1994, the appellees and their vehicle were clearly “seized.” Accordingly, we must determine whether the seizure was justified.

The issue regarding the standard to be applied when reviewing an officer’s stop of a vehicle for a Vehicle Code violation has been the subject of rather recent appellate scrutiny. “Confusion had arisen in recent case law as to whether, in order to stop a vehicle for a traffic violation, the officer must possess ‘probable cause to believe’ or a ‘reasonable suspicion to believe’ that a violation of the Vehicle Code had occurred.” Commonwealth v. Hamilton, 543 Pa. 612, 673 A.2d 915, 918 (1996). In Hamilton, our supreme court again addressed the issue of the standard to be applied when a police officer stops a vehicle for a traffic violation. The court concluded that a “police officer ... may stop a vehicle whenever ... [he has] articulable and reasonable grounds to suspect that a violation of the Vehicle Code has occurred.” Id. 673 A.2d at 918 (citation omitted). Accordingly, we must determine whether the information available to Officer Eddinger at the time he stopped the appellees’ vehicle created reasonable grounds to suspect that a violation of the Vehicle Code had occurred.

Here, the officer who stopped appellees’ vehicle never specifically articulated the basis for the stop. However, from the officer’s testimony at the suppression hearing, it can be inferred that the officer stopped the vehicle because he “suspected” that a violation of the Vehicle Code had occurred based on activities he observed on April 22, 1994. The officer testified that he observed a male drive into a Uni-Mart parking lot and exit his vehicle. He further observed a female passenger looking in the direction of his cruiser several times. Finally, he observed that when the male exited the Uni-Mart, the female passenger climbed over the console in the vehicle into the driver’s seat, and pointed at the male to get into the passenger’s seat. When the vehicle drove out of the parking lot, the officer followed it and stopped it. The officer further testified that he did not observe any violations of the Vehicle Code from the time the vehicle entered the Uni-Mart parking lot until he stopped the vehicle after it had left the parking lot. Based on the totality of these circumstances, we cannot find that Officer Eddinger had articulable and reasonable grounds to suspect that a violation of the Vehicle Code had occurred.

We have held that an officer need not establish that an actual violation of the Vehicle Code has occurred prior to stopping a vehicle. Commonwealth v. Benton, 440 Pa.Super. 441, 655 A.2d 1030 (1995). Therefore, the fact that Officer Eddinger did not actually observe a violation of the code prior to stopping the appellees’ vehicle does not preclude a finding that the vehicle was stopped properly. However, in the absence of an actual violation, the officer must provide a reasonable basis for his belief that the Vehicle Code was being violated in order to validate the stop. Benton, supra. This reasonable basis must be “linked with his observation of suspicious or irregular behavior on behalf of the particular ... individuals stopped.” Espada, 528 A.2d at 970. Moreover, the reasonable basis necessary to justify a stop is less stringent than probable cause, but the detaining officer must have more than a mere hunch as the basis for the stop. In Interest of S.D., 429 Pa.Super. 576, 633 A.2d 172, 174 (1993).

Keeping these standards in mind, we must agree with the trial court’s conclusion that the circumstances in this case were not specific instances of unusual and suspicious conduct on the part of the appellees that could have reasonably led Officer Eddinger to conclude that the Vehicle Code was being violated. Simply put, the fact that the female appellee looked at the officer’s cruiser several times, and relinquished the passenger’s seat to the male appellee cannot be construed as unusual and suspicious conduct. Officer Eddinger’s mere hunch that a violation of the vehicle code may have occurred was insufficient to justify stopping the appellees’ vehicle.

For all of the foregoing reasons, the trial court’s order suppressing the evidence is affirmed.

Order Affirmed.

      . In this case, charges were brought against Leroy George Bowersox and Joan McGraw Bowersox. Because the issues in both cases were identical, this Court granted the Commonwealth’s motion to consolidate the appeals.

      . In its statement of jurisdiction, the Commonwealth certifies that the suppression order substantially handicaps or effectively terminates its prosecution of the case. This permits appellate review of the suppression order. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).

      . In its brief, the Commonwealth misstates our standard of review. The Commonwealth mistakenly asserts that ”[i]n determining whether the findings [of fact] are supported by the record, the court should consider only the evidence of the appellant and so much evidence of the appellee which remains uncontradicted.” Commonwealth's Brief p. 10. As discussed previously, in reviewing the Commonwealth's appeal from the decision of the suppression court, we consider only the evidence of the appellees’ witnesses and so much of the evidence for the appellant which remains uncontradicted.

      . The Commonwealth argues that the trial court erred because its findings of fact are not supported by the record. Specifically, the Commonwealth states that “[t]he trial court’s finding of fact with which the Commonwealth disputes is [the court’s finding] that the officer’s observations simply rose to the level of suspicion based upon an intuition or mere hunch.” Commonwealth's Brief p. 11. We find that this is not a finding of fact. Rather, the trial court’s statement that the officer's suspicion was based on a mere hunch is a conclusion of law. Therefore, the Commonwealth’s dispute is actually in regard to the trial court's conclusions of law and not its findings of fact.

      . 75 Pa.C.S.A. § 1543(a).

      . 75 Pa.C.S.A. § 1543(a).

      . The Commonwealth asserts that the trial court erred because it did not consider the testimony “of the officer from an objective viewpoint based upon his training, observations and experience." Commonwealth’s Brief p. 8. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court held that in determining whether an officer is justified in conducting a brief stop, the court must determine whether the officer had articulable and reasonable grounds to justify the stop based on the officer’s special skills and training. Assuming arguendo that the trial court did not view the testimony in this manner, our application of this standard to the facts of this case leads us to conclude that the trial court did not err in finding that the officer had insufficient reasonable suspicion to justify a stop of the appellees’ vehicle.


author: HOFFMAN, Judge:

text:
    675 A.2d 722
    Cynthia VINESKI v. Joseph VINESKI, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 25, 1996.
    Filed April 23, 1996.

      Joseph Vineski, Troy, in propria personna.
    Before McEWEN, President Judge, and SAYLOR, and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from a September 15,1994 order approving appellee Cynthia Vineski’s petition for relocation. Appellant, Joseph Vineski, now raises the following issues for our review:

(1) SHOULD THE COURT HAVE REQUIRED EVIDENCE THAT MOTHER EXPLORED ALTERNATIVE GEOGRAPHICAL AREAS TO MOVE THAT WERE CLOSER TO FATHER THAN KINGSPORT, TENNESSEE?
(2) SHOULD MOTHER HAVE PROVIDED EVIDENCE OF HER PAST INCOME AND WHAT HER FUTURE INCOME WAS EXPECTED TO BE?
(3) WAS [THE] MOVE TO KINGSPORT, TENNESSEE PROPERLY MOTIVATED WHERE MOTHER ADMITTED THAT SHE HAD NEVER BEEN THERE UNTIL TWO WEEKS BEFORE SHE PLANNED TO MOVE?
(4) DID MOTHER DEMONSTRATE A LIKELIHOOD THAT THE MOVE WOULD SUBSTANTIALLY IMPROVE THE QUALITY OF LIFE FOR SHE AND THE CHILDREN?
(5) DID [THE] TRIAL COURT PLACE UNDUE EMPHASIS ON GRANTING MOTHER’S RELIEF BASED ON A MEDICAL CONDITION WHEN THE ALLEGED CONDITION WAS NOT PLEAD [SIC] IN THE ORIGINAL PETITION SEEKING TO MOVE?

Appellant’s brief at 4. We affirm.

Appellant and appellee were married in 1976 in Bradford County, Pennsylvania, and three children were subsequently born of the marriage. Following the parties’ divorce in October 1988, appellee took primary physical custody of the children. On August 24, 1994, appellee filed a petition for special relief, seeking to move to Kingsport, Tennessee with the children, then ages twelve (12), eight (8), and seven (7). On September 14, 1994, a Plowman hearing was held, after which the court concluded that appellee could relocate to Tennessee with the children, and ordered the parties to work out the details of a new partial custody schedule for appellant. Following a denial of appellant’s motion for a stay and supersedeas of the order approving relocation, this timely appeal followed.

Appellant now argues that the trial court erred in approving appellee’s relocation to Tennessee with the children.

In reviewing a child custody order,

[Our] scope of review ... is of the broadest type; the appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the reviewing court accept a finding that has no competent evidence to support it____ However, the broad scope of review does not vest in the reviewing court the duty or the privilege of making its own independent determination____ Thus, an appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support its factual conclusions, but it may not interfere with those conclusions unless they are unreasonable in view of the trial court’s factual findings; and, thus, represent a gross abuse of discretion.

Kaneski v. Kaneski, 413 Pa.Super. 173, 178, 604 A.2d 1075, 1077 (1992). To justify the relocation of children by the custodial parent,

the custodial parent must demonstrate (1) that the move is likely to significantly improve the quality of life for the parent and the children; (2) that the move is not motivated simply by a desire to frustrate the visitation rights of the non-custodial parent or to impede the development of a healthy relationship between the child and the non-custodial parent; and (3) the feasibility of creating substitute visitation arrangements to ensure a continuing, meaningful relationship between the children and the non-custodial parent.

Id. at 179, 604 A.2d at 1078 (citing Gruber v. Gruber, 400 Pa.Super. 174, 583 A.2d 434 (1990)); see White v. White, 437 Pa.Super. 446, 451, 650 A.2d 110, 113 (1994). Moreover, “in determining the best interests of the child in the post-divorce situation, the focus must be mainly on the primary custodial family.” Kaneski, 413 Pa.Super. at 179, 604 A.2d at 1078.

In the instant case, the trial court analyzed appellee’s reasons for moving to Tennessee, including (1) appellee’s desire to leave a weak local economy for one with more growth opportunities; (2) her wish to find a warmer climate which would be easier on her arthritic medical problems; and (3) her desire to find an environment similar to Bradford County for her children with a rural and “small town” character. Trial Court Op. at 2-3. The trial court then concluded that these were “reasonable considerations, the product of serious and prolonged deliberation, and appropriately motivated.” Trial Court Op. at 5. Accordingly, we find that the trial court did not err as these reasons are adequately supported in the record.

As for the second and third factors, there was conflicting testimony regarding appellee’s desire to frustrate the amount of the children’s contact with appellant. However, after conducting a full evidentiary hearing at which appellant, appellee, and the children all testified, the trial court was satisfied with appellee’s promise to have the children maintain a relationship with appellant by making them available for long weekends, holidays, and vacations, as well as the children’s desire to remain with their mother despite the move. Thus, we agree with the trial court that “[t]he move is not being undertaken for the purpose of diminishing contact with the non-custodial parent[,] means are available to adequately foster a significant on-going relationship between the child and the non-custodial parent” and that “the best interests of the child[ren] are consistent with the proposed move____” Trial Court Op. at 4.

Therefore, upon application of our factors originally set forth in Gruber, we cannot say that the lower court committed a “gross abuse of discretion” in concluding that appellee’s reasons for relocation were reasonable. Kaneski, supra. Consequently, the order is affirmed.

Order affirmed.

      . Our docket reflects that appellant originally filed two separate appeals: 00592 HBG 94 from the trial court order of September 15, 1994, and 00593 HBG 94 from the order of August 11, 1994. On September 22, 1994, appeal 00592 HBG 94 was quashed sua sponte for appellant’s failure to file a brief. Appellant also filed a brief with the label 00593 HBG 94 even though he clearly intended to appeal the September 15, 1994 order. In the interest of equity and the consistency of our docket, we quash 00593 HBG 94 from the August 11, 1994 order for appellant’s failure to file a brief and reinstate 00592 HBG 94 as a proper appeal from the September 15, 1994 order.

      . “[Wjhere either parent files a petition which raises the issue of whether it is in the best interest of the child to move with the custodial parent outside of the jurisdiction, a hearing must be held either before the move, or under exigent circumstances, within a reasonable time thereafter." Plowman v. Plowman, 409 Pa.Super. 143, 153, 597 A.2d 701, 706 (1991).

      . We note that this order approving the relocation is appealable as a final order even though the trial court directed the parties themselves to resolve the details of appellant’s new visitation schedule. See Cady v. Weber, 317 Pa.Super. 481, 487, 464 A.2d 423, 426 (1983) (fact that details of implementation of order remain to be worked out does not vitiate finality of court’s custody determination). We also note that the order is appealable although it technically violated the statutory requirement that an order be on a separate page apart from the findings and conclusions of the trial court. Pa.R.A.P. 301(b).

      . New York has recently adopted a similarly broad test for considering a custodial parent's petition for relocation. See Tropea v. Tropea, 87 N.Y.2d 727, 642 N.Y.S.2d 575, 665 N.E.2d 145 1996 N.Y. LEXIS 300 (1996) (custodial parent no longer must show "exceptional" circumstances to justify relocation with minor children).

      . As we noted in Plowman, supra, appellant cannot merely "attempt to relitigate the issues already addressed by the trial court,” as "it is inappropriate for the Superior Court to make factual determinations based on conflicting evidence.” 409 Pa.Super. at 157 n. 4, 597 A.2d at 708 n. 4. In his five questions presented on appeal, appellant merely attempts to relitigate disputed factual issues resolved adversely to his interests by the trial court.


author: CIRILLO, President Judge Emeritus:

text:
    675 A.2d 724
    COMMONWEALTH of Pennsylvania v. Ronald MAYS, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 11, 1996.
    Filed April 22, 1996.

      Daniel Silverman, Philadelphia, for appellant.
    Peter J. Gardner, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CIRILLO, President Judge Emeritus, and DEL SOLE and HOFFMAN, JJ.
   CIRILLO, President Judge Emeritus:

Ronald Mays appeals from an order of the Court of Common Pleas of Philadelphia County denying his petition under the Post Conviction Relief Act, 42 Pa.C.S.A. § 9541 et seq. [PCRA]. We affirm.

On October 18, 1984, a jury found Mays guilty of second-degree murder, robbery, and criminal conspiracy. Post-verdict motions were filed and denied. Mays was subsequently sentenced to life imprisonment for murder, with a concurrent term of two and one half to five years in prison for the charge of conspiracy. Mays filed an appeal and a prior panel of this court affirmed his judgment of sentence. Our supreme court denied Mays’ petition for allowance to appeal. On July 31, 1991, Mays filed a PCRA petition which the court denied without an evidentiary hearing. He now appeals from the denial of this petition.

Our court aptly stated the facts as follows:

On February 17, 1984, appellants [Mays and codefendant, Jeffrey Bland], entered the decedent’s apartment in Philadelphia and demanded that the victim “give up the stuff.” Mays kicked him in the chest while Bland, holding a gun, threatened to kill the victim if he moved. After a continued struggle, Bland kicked the victim and Mays directed Bland to “just kill him.” Bland then shot the victim and both men fled.

Commonwealth v. Mays, 361 Pa.Super. 554, 557, 523 A.2d 357, 358 (1987).

Mays raises the following issues for our review:

(1) Did the trial court err in dismissing appellant’s P.C.R.A. petition without an evidentiary hearing where counsel on direct appeal failed to raise the meritorious issue that trial counsel was ineffective for failing to request an alibi instruction when the primary defense at trial was one of alibi; and
(2) Did the trial court err in dismissing appellant’s P.C.R.A. petition without an evidentiary hearing where counsel on direct appeal failed to raise the meritorious issue that trial counsel was ineffective for failing to request a jury instruction that if appellant only intended to recover goods or property which he believed belonged to him, as the evidence at trial suggested, that would not constitute a robbery since the required “felonious intent” would be absent?

On appeal from the denial of PCRA relief, this court must determine whether the post-conviction court’s findings were supported by the record and whether the court’s order is otherwise free of legal error. Commonwealth v. Blackwell, 436 Pa.Super. 294, 647 A.2d 915 (1994), allocatur denied, 540 Pa. 576, 655 A.2d 509 (1995). The findings of the post-conviction court will not be disturbed unless they have no support in the record. Id.

Mays first contends that because he presented an alibi witness at trial to corroborate his alibi defense, trial counsel was ineffective in not requesting- an alibi instruction for the jury. We disagree.

Our standard of review when evaluating a claim of ineffective assistance of counsel is well settled. We presume that trial counsel is effective and place on the defendant the burden of proving otherwise. Commonwealth v. Williams, 524 Pa. 218, 230, 570 A.2d 75, 81 (1990). We are first required to determine whether the issue underlying the claim is of arguable merit. Commonwealth v. Johnson, 527 Pa. 118, 122, 588 A.2d 1303, 1305 (1991). If the claim is without merit, our inquiry ends because counsel will not be deemed ineffective for failing to pursue an issue which is without basis. Id. Even if the underlying claim has merit, the appellant still must establish that the course of action chosen by his counsel had no reasonable basis designed to effectuate the client’s interests and, finally, that the ineffectiveness prejudiced his right to a fair trial. Id.; Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Significantly, in the recent case of Commonwealth v. Buehl, 540 Pa. 493, 658 A.2d 771 (1995), the Pennsylvania Supreme Court announced that

where a claim of ineffective assistance is advanced on collateral attack, the PCRA renders more stringent the prejudice requirement which must be satisfied before relief can be granted. Specifically, Section 9543 requires a defendant to prove that counsel’s ineffectiveness “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.”

Id. at 505, 658 A.2d at 777 (citing 42 Pa.C.S.A. § 9543(a)(2)(h)). Additionally, “[p]rior decisions of our Supreme Court have held or acknowledged that ineffectiveness of all prior counsel constitutes extraordinary circumstances which, when raised, preserves the issues for consideration.” Commonwealth v. Reese, 382 Pa.Super. 564, 568, 555 A.2d 1344, 1346 (1989), allocatur denied, 522 Pa. 624, 564 A.2d 916 (1989) (citations omitted). Accordingly, we find that the claims of trial and appellate counsels’ ineffectiveness, for failing to instruct on the existence of an alibi and lack of felonious intent, are properly before us for disposition.

This court, in Commonwealth v. Poindexter, 435 Pa.Super. 509, 646 A.2d 1211 (1994), allocatur denied, 540 Pa. 580, 655 A.2d 512 (1995), summarized case law regarding alibi instructions:

An alibi instruction is required if the defendant presents evidence which covers the time period when the crime was committed and which puts him at a different location than that of the crime scene. Commonwealth v. Repaci, 419 Pa.Super. 591, 594-95, 615 A.2d 796, 798 (1992). It is not necessary for an alibi defense to be corroborated in order to constitute an alibi. See [Com. v.] Roxberry, 529 Pa. [160] at 165, 602 A.2d [826] at 828 [ (1992) ]; Commonwealth v. Saunders, 529 Pa. 140, 602 A.2d 816 (1991); Commonwealth v. Willis, 520 Pa. 289, 553 A.2d 959 (1989) (all requiring an alibi instruction when the alibi defense had been presented solely by the unsupported testimony of the defendant). There is no minimum or threshold quantum of physical separation necessary for a defense to constitute an alibi, so long as the separation makes it impossible for the defendant to have committed the crime. Id.

Id. at 524-25, 646 A.2d at 1218 (emphasis added). Furthermore, our supreme court has stated that an alibi “places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party.” Commonwealth v. Whiting, 409 Pa. 492, 498, 187 A.2d 563, 566 (1963) (emphasis added).

At trial, Mays presented one alibi witness, William Mangum, who testified to the following: he was with Mays from 3:00-4:00 p.m. on the afternoon of the murder; he and Mays had decided to buy marijuana, drove to the home of the decedent and while Mangum remained in the car around the corner from the victim’s home, Mays went into the decedent’s residence and later returned to the car with a five dollar bag of marijuana; he drove Mays back to his home; and he heard no shots fired while Mays was in the decedent’s home. After returning to Mays’ home, Mangum stated that he and Mays sat outside smoking “joints.” Mangum said that while they smoked marijuana, they talked about going to Reading to visit Mangum’s girlfriend. The two then left for Reading, but were stopped by a police officer at a Pennsylvania Turnpike toll booth, at 8:20 p.m., for an expired inspection sticker. After the officer issued a ticket to Mangum, the two continued on their way to Reading where they went to Mangum’s girlfriend’s residence. After a short time at the girlfriend’s house, Mays apparently left with another girl, while Mangum remained.

The testimony at trial revealed that the victim was murdered at approximately 6:00 p.m., on the evening of February 17, 1984. While there was evidence presented by defense witness Mangum that Mays was with him on the day of the murder between 3 and 4 o’clock p.m. and then later in the evening around 8:00 p.m., the record reveals no testimony, either elicited by Mays or any other witness, including Man-gum, that placed Mays at a place other than the victim’s home at the “relevant time ” of the murder — 6:00 p.m. See Commonwealth v. Fanase, 446 Pa.Super. 654, 667 A.2d 1166 (1995) (when defendant’s wife was uncertain as to important facts on the night of the alleged crime and was less than certain that the defendant was home “at the exact time the crime occurred,” trial counsel was not ineffective for failing to request alibi instruction); Commonwealth v. Repaci, 419 Pa.Super. 591, 615 A.2d 796 (1992), allocatur denied, 535 Pa. 633, 631 A.2d 1006 (1993) (speculative testimony of alibi witnesses did not provide defendant with alibi, thus not requiring that alibi instruction be given; witness stated that he could not “say definitely” if defendant had been in another place at the exact time of the crime; other witness stated that defendant had not been gone from his home for “very long” on the night of the crime). Cf. Commonwealth v. Roxberry, 529 Pa. 160, 602 A.2d 826 (1992) (when victim claimed that alleged crimes occurred between 11:00 p.m. and 1:00 a.m. of succeeding days, defendant’s testimony that he was drinking in a bar from 8:00 p.m. until 1:00 a.m. was sufficient alibi defense warranting alibi instruction); Commonwealth v. Brunner, 341 Pa.Super. 64, 491 A.2d 150 (1985) (when Commonwealth witness claimed that she and the defendant committed burglary “around noontime,” testimony by alibi witness that defendant was with her at an ice cream parlor between noon and 12:30 p.m. was sufficient alibi defense requiring counsel to request alibi instruction).

We conclude that it was not “impossible for Mays to have committed the crime,” Willis, supra, because no testimony actually placed Mays in another place at 6:00 p.m. on the evening of February 17, 1984. Repaci, supra. With no established alibi, Mays was not entitled to an alibi instruction. Mays’ claim, therefore, is without merit, Buehl, supra, and we will not deem counsel ineffective for failing to raise this meritless claim. Johnson, supra.

Mays next asserts that trial counsel was ineffective for failing to request a “felonious intent” instruction regarding the underlying crime of robbery in relation to the charge of felony-murder. He claims that because his codefendant went to the victim’s home to recover a debt, and not to rob, the required felonious intent for the felony, robbery, would be missing and the jury could not convict him of felony-murder. We disagree.

The question we must ask about a proposed charge to the jury is whether it is warranted by the evidence presented in the case. Commonwealth v. Mayfield, 401 Pa.Super. 560, 563, 585 A.2d 1069, 1075 (1991), citing Commonwealth v. Schaller, 493 Pa. 426, 431, 426 A.2d 1090, 1093 (1981). If the requested instruction is inapplicable and improper, the court should not charge on it. Commonwealth v. Cottam, 420 Pa.Super. 311, 333, 616 A.2d 988, 999 (1992), citing Commonwealth v. Kyle, 367 Pa.Super. 484, 509-10, 533 A.2d 120, 133 (1987), allocatur denied, 518 Pa. 617, 541 A.2d 744 (1988). If we find that the court should have included the instruction, then we must determine whether its omission prejudiced the defendant. Commonwealth v. Woodward, 483 Pa. 1, 4, 394 A.2d 508, 510 (1978). If we determine the decision not to give an instruction was an error of law which might have prejudiced the defendant, then we must determine the error was not harmless before granting a new trial. Commonwealth v. Lesher, 473 Pa. 141, 150-51, 373 A.2d 1088, 1093 (1977).

While it is true that felonious intent is one of the important elements of the crime of robbery, Commonwealth v. Tarver, 446 Pa. 233, 284 A.2d 759 (1971), overruled on other grounds by Commonwealth v. Graves, 461 Pa. 118, 334 A.2d 661 (1975), our supreme court has held that if a defendant is owed money by a victim, and commits murder of the victim when attempting to regain this money, the defendant will be guilty of robbery in the taking of said victim’s property by such force. Commonwealth v. Sleighter, 495 Pa. 262, 433 A.2d 469 (1981); see also Commonwealth v. Namack, 444 Pa.Super. 9 n. 2, 663 A.2d 191 n. 2 (1995) (citations omitted) (claim of right defense not available to one who employs force or stealth to recoup or to collect an unliquidated debt).

Accordingly, we find that the shot fired into the victim’s torso by Mays’ co-conspirator, Bland, at Mays’ insistence, was clearly an abuse of force used to recover property which the victim may have owed Bland. Sleighter, supra. The evidence in the case does not entitle Mays to a special instruction on “felonious intent,” based on Bland’s alleged “claim of right” to recover property from the victim. In fact, such an instruction would have been improper and against established law. Cottam, supra; Namack, supra. Without any merit to Mays’ argument, we will not hold counsel ineffective for failing to assert this claim. Johnson, supra. Having determined that the PCRA court’s findings were supported by the record and free of legal error, Blackwell, supra, we affirm the order denying PCRA relief.

Order affirmed.

      . Mays’ robbery conviction merged with his second-degree murder conviction for sentencing purposes.

      . See Commonwealth v. Mays, 361 Pa.Super. 554, 523 A.2d 357 (1987), allocatur denied, 516 Pa. 613, 531 A.2d 780 (1987) (our court held that: defendant failed to preserve for appeal the issue of admissibility of his codefendant's incriminating statements; any reference to the defendant's post-arrest silence was cured by a cautionary instruction; and the defendants were not entitled to instructions on “heat of passion” manslaughter or "unreasonable belief” manslaughter).

      . In addition to the various state court proceedings, Mays also filed a federal habeas corpus petition which was denied, as was an appeal to the Third Circuit Court of Appeals.

      . The PCRA court determined that a decision could be made from the existing record. See Commonwealth v. Brimage, 398 Pa.Super. 134, 580 A.2d 877 (1990) (holding that the trial court properly dismissed a PCRA petition without a hearing, as no purpose would be served by further proceedings); see also Pa.R.Crim.P. 1507 (sets forth procedure for a judge in reviewing such a motion; if judge is satisfied from this review that there are no genuine issues concerning any material fact and that the defendant is not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings, judge shall give notice to the parties of the intention to dismiss the motion and shall state in the notice the reasons for the dismissal).

      . Our supreme court has held that newly appointed counsel or retained counsel must raise on appeal the ineffectiveness of his predecessor trial counsel or that claim will be deemed waived. See Commonwealth v. Hubbard, 472 Pa. 259, 276 n. 6, 372 A.2d 687, 694-95 n. 6 (1977) (citations omitted). Newly appointed counsel must raise ineffectiveness of prior counsel at the earliest stage in the proceedings at which counsel whose ineffectiveness is being challenged no longer represents the defendant. Id. See Commonwealth v. Chmiel, 536 Pa. 244, 639 A.2d 9 (1994).

      . The Pennsylvania Criminal Code defines the crime of robbery as follows:
      § 3701. Robbery
      (a) Offense defined.—
      (1) A person is guilty of robbery if, in the course of committing a theft, he:
      (i) inflicts serious bodily injury upon another; ____
      18 Pa.C.S.A. § 3701 (emphasis added).
      Serious bodily injury is defined as "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." 18 Pa.C.S.A. § 2301.
      "Theft” is defined as:
      (a) Movable property. — A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof.
      18 Pa.C.S.A. § 3921.

      . The trial judge gave a rather complete charge to the jury regarding the intent element of robbery in the context of the crime of felony-murder:
      COURT: A person is guilty of robbery if, in the course of committing a theft, he inflicts serious bodily harm upon the person of another. If it occurs in an attempt to commit theft or is inflicted after the attempt or commission of theft then you don’t actually need anything actually taken. If there was an attempt to take something and as a result of that a death occurred, then you will find that type of standard in determining whether or not this is felony murder. Now, theft is the unlawful taking of the personal property or moveable property from another with the intent to deprive the person of possession thereof. It must be the property of another. There are questions in this case about a debt, but you will not have the right to take the property of another even though you think that that property belonged to you and that debt belonged to you.


text:
    675 A.2d 730
    RESOLUTION TRUST CORPORATION, as Receiver for Riverside Federal Savings Bank, Marked to the use of Toll Bros., Inc. v. WARWICK NURSERIES, LTD. Appeal of EASTERN FINANCIAL SERVICES CORP.
    Superior Court of Pennsylvania.
    Submitted March 11, 1996.
    Filed April 25, 1996.

      Andrew L. Markowitz, Lanaska, for appellant.
    Mark S. Kenney, Philadelphia, for appellee.
    Before CIRILLO, President Judge Emeritus, and DEL SOLE and HOFFMAN, JJ.
   CIRILLO, President Judge Emeritus:

Eastern Financial Services Corporation appeals from an order entered in the Bucks County Court of Common Pleas denying its petition to set aside and/or strike or open a federal judgment and sheriffs sale against Warwick Nurseries, LTD. We affirm.

On March 25, 1991, the Resolution Trust Corporation (“RTC”), in its capacity as receiver for Riverside Federal Savings and Loan (“Riverside”), commenced an action against Warwick Nurseries, LTD. (“Warwick”) and Jamison Properties, Inc. (“Jamison”) in the United States District Court of the Eastern District of Pennsylvania. The federal actions involved RTC’s rights under a mortgage granted by Warwick and Jamison to Riverside. On January 11, 1993, the court granted summary judgment in favor of RTC. Warwick appealed to the United States Court of Appeals for the Third Circuit, which affirmed the judgment.

RTC assigned the mortgage and judgment against Warwick and Jamison to Toll Brothers, Inc. Toll Brothers transferred the judgment to the Bucks County Court of Common Pleas and obtained writs of execution against Warwick and Jamison, directing the sale of both properties. On January 20, 1995, Eastern Financial Services Corp. (“Eastern”) commenced a quiet title action against Warwick and Jamison in the Bucks County Court of Common Pleas. Eastern claimed to have acquired title to both properties (Warwick’s and Jamison’s) on October 22, 1992, by way of a quitclaim deed which it had misplaced and never recorded.

A sheriffs sale was held. Toll Brothers successfully outbid its competitors and acquired the properties. Sheriffs deeds conveying the properties were executed on May 25, 1995 and recorded on May 30,1995. Eastern filed petitions to set aside the sheriffs sale and to strike and/or open the federal judgments against Warwick and Jamison. The Bucks County Court of Common Pleas entered an order denying Eastern’s petition and this appeal followed. Eastern raises the following issues for our consideration:

(1) May Eastern’s ownership, acquired during the pending litigation, be divested through a sheriffs sale?
(2) Should the RTC have named Eastern as an indispensable party in their Federal Court action against Warwick and/or Jamison, and did the Court of Common Pleas err in giving effect to the judgment of the United States District Court?

Eastern first contends that its ownership may not be divested through a sheriffs sale. “A petition to set aside a sheriffs sale is based on equitable principles and is addressed to the sound discretion of the trial court, whose decision will not be disturbed absent a clear abuse of that discretion.” Bornman v. Gordon, 363 Pa.Super 607, 611, 527 A.2d 109, 111 (1987). “As a general rule, the burden of proving circumstances warranting the exercise of the court’s equitable powers is on the applicant, and the application to set aside a sheriffs sale may be refused because of the insufficiency of proof to support the material allegations of the application, which are generally required to be established by clear evidence.” Id.

Eastern’s petition to set aside the sheriffs sale was based on its belief that as the legal owner of the properties, it should have been named a party to the litigation. This claim is without merit.

It is perfectly well-settled, that encumbrances who become such pendente lite, are not necessary parties to a bill to foreclose, although they are bound by the decree, for they can claim nothing except what belonged to the person under whom they assert title, since they have constructive notice; and there would be no end to such suits, if a mortgagor might by new encumbrances, created pendente lite, require all such encumbrances to be made parties.

Bradley v. Price, 396 Pa. 234, 152 A.2d 904, 908 (1959) (quoting Youngman v. Elmira, 65 Pa. 278, 287 (1870) (citations omitted)). Once the foreclosure action is commenced, anyone acquiring an interest in the subject property need not be joined in the action, but will be bound by the decree. Id.

Eastern claims to have acquired title to the property on October 22, 1992. This was 18 months after the foreclosure action was commenced in federal court. Eastern, as a party acquiring an interest pending the litigation, is therefore bound by the federal decree. Bradley, supra. In addition, Eastern made no attempt to be joined in the federal action. This is particularly relevant because Eastern not only had constructive notice of the pending action, but also had actual notice. Consequently, Eastern acquired only the legal rights of Warwick and is bound by the federal judgment against Warwick. Bradley, supra. To hold otherwise would defeat the purpose of the rule stated in Bradley. Therefore, Eastern was unable to support the material allegations in its application to set aside the sheriffs sale, Bornman, supra, and the trial court correctly denied the petition.

Eastern next argues that the Court of Common Pleas should not have given effect to the judgment of the United States District Court because the federal court failed to require Eastern to be joined as an indispensable party. This claim is also without merit.

“Pennsylvania courts have long recognized the principle that state courts are bound by the judgments of federal courts.” Delaware Valley Citizens’ Council for Clean Air v. Commonwealth of Pa., 755 F.2d 38, 44 (3d. Cir.), cert. denied, 474 U.S. 819, 106 S.Ct. 67, 88 L.Ed.2d 54 (1985). State courts must give full faith and credit to the proceedings of federal courts. Id. Eastern’s challenge to the federal proceedings and judgment, therefore, should be addressed to the United States District Court, and not the Bucks County Court of Common Pleas. Thus, we decline to review the last issue on appeal, remaining bound by the federal court’s judgment. Delaware Valley, supra.

Order affirmed.

DEL SOLE, J., concurs in the result.

      . This was approximately 18 months after the commencement of the foreclosure action in the United States District Court, and 2'k months prior to the entry of judgment.

      . Even if the court of common pleas had the authority to address the federal judgments, the claim would still fail. Eastern acquired its interest in the property while the federal action was pending. Therefore, Eastern was not a necessary party to the foreclosure action. Bradley, supra. In addition, although Eastern had knowledge of the federal action, it made no attempt to intervene or be substituted as a defendant.


author: OLSZEWSKI, Judge:

text:
    675 A.2d 732
    STATE FARM FIRE AND CASUALTY COMPANY, Appellant, v. Randall P. CRALEY, Admr. of the Estate of Jayne Ann M. Craley, Randall P. Craley, Parent and Natural Guardian of Keith P. Craley, a minor, and Randall P. Craley, in his own right and Gloria M. Craley and Lawrence W. Craley, husband and wife, Appellees. STATE FARM FIRE AND CASUALTY COMPANY, Appellee, v. Randall P. CRALEY, Admr. of the Estate of Jayne Ann M. Craley, Randall P. Craley, Parent and Natural Guardian of Keith P. Craley, a minor, and Randall P. Craley, in his own right and Gloria M. Craley and Lawrence W. Craley, husband and wife, Appellants.
    Superior Court of Pennsylvania.
    Argued March 12, 1996.
    Filed April 25, 1996.

      Teresa F. Sachs, Philadelphia, for State Farm.
    Daniel E.P. Bausher, Reading, for Randall P. Craley, Gloria M. Craley & Lawrence W. Craley.
    Before BECK, KELLY  and OLSZEWSKI, JJ.

       Judge Kelly did not participate in the decision of this appeal.

   OLSZEWSKI, Judge:

On July 12, 1993, Jayne Anne Craley was driving her GMC Jimmy when she was struck by an uninsured motorist and killed. Jayne Anne’s son, Keith, and mother-in-law, Gloria Craley, who were passengers in the Jimmy, sustained serious personal injuries, but, thankfully, survived the crash. Jayne Anne owned her vehicle and was insured under a policy (Jayne Anne’s policy) issued to her by Appellee State Farm Fire and Casualty Company (State Farm). Her husband, Randall Craley, was insured under a separate policy (Randall’s policy) issued to him by State Farm for his pickup truck. Gloria Craley was insured by a third policy (the Prudential policy) issued by Prudential Property & Casualty Insurance Company. Jayne Anne’s estate made claims for uninsured motorist benefits under both State Farms policies and the Prudential policy claiming that Jayne Anne, as a family member residing in the same household, was a “resident relative” and, therefore, insured under all three policies. State Farm approved the claim that Jayne Anne’s estate was entitled to full uninsured motorist coverage under Jayne Anne’s policy and tendered the policy limit of $15,000. Nevertheless, State Farm refused the claim as to Randall’s policy claiming that, since Randall and Jayne Anne had elected “non-stacking” uninsured motorist coverages, Jayne Anne’s estate could collect under only one policy.

State Farm next filed a complaint for declaratory judgment of Common Pleas of Berks County, seeking a declaration that its non-stacking provision was valid and enforceable under the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL). Jayne Anne’s estate filed preliminary objections, claiming that the issue should be arbitrated. Additionally, the estate filed a separate petition to compel arbitration. By order dated May 11, 1995, the Honorable Albert A. Stallone denied State Farm’s declaratory judgment action, sustained Jayne Anne’s estate’s preliminary objections and granted the petition to compel arbitration. This appeal follows, wherein State Farm alleges that Judge Stallone erred in deferring to arbitration the issue of whether the non-stacking provision prohibited Jayne Anne’s estate from recovering under Randall’s policy.

Before reaching the merits of this case, we must determine whether Judge Stallone’s order is appealable. It is well settled that appeals can generally be taken only from orders which are final, rather than interlocutory, in nature. Maleski v. Mutual Fire Ins., 534 Pa. 575, 578, 633 A.2d 1143, 1145 (1993). “A pivotal consideration in determining whether an order is final and appealable, is whether the plaintiff aggrieved by it has, for purposes of the particular action, been put ‘out of court’ on all theories of recovery asserted against a given defendant for a given loss.” Id. (quoting Piltzer v. Independence Federal Savings and Loan Ass’n, 456 Pa. 402, 406, 319 A.2d 677, 678 (1974)). An order compelling arbitration, like the one in the case at hand, “and staying court action is not final; rather, it is interlocutory because the parties are not forced ‘out of court.’ ” Id. Moreover, an order compelling arbitration “forces the parties into, rather than out of, court.” Id. (citing Gardner v. Prudential Ins. Co., 332 Pa.Super. 358, 359, 481 A.2d 654, 655 (1984)). Further, we note that, under the Arbitration Act, although a party may take an appeal from a court order denying an application to compel arbitration, “there is no corresponding statutory authority in existence that allows a party to take an appeal from an order that compels arbitration.” Id. at 581, 633 at 1146.

In light of the above, we find that Judge Stallone’s order which denies State Farm’s declaratory judgment action, sustains Jayne Anne’s estate’s preliminary objections and grants the petition to compel arbitration is interlocutory. See id. Consequently, this appeal is premature and must be quashed. Id.; Gardner, supra.

Appeal quashed.

      . We note that Jayne Anne’s estate has filed a notice of cross-appeal seeking to consolidate the State Farm arbitration with the arbitration of its separate claim under the Prudential policy. As no mention of this issue is to be found in the estate’s brief, we deem it waived. See Taurino v. Ellen, 397 Pa.Super. 50, 58, 579 A.2d 925, 930 (1990), alloc. denied, 527 Pa. 603, 589 A.2d 693 (1991) (claim on appeal is waived where party fails to support it with adequate argument).