author: HUDOCK, Judge: DEL SOLE, Judge,

text:
    679 A.2d 790
    Thomas BLANYAR and Louise Blanyar, Parents and Natural Guardians of Christopher Blanyar, a Minor, and Thomas Blanyar and Louise Blanyar in Their Own Right, Appellants, v. PAGNOTTI ENTERPRISES, INC., Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 19, 1995.
    Filed June 19, 1996.

      Richard S. Campagna, Scranton, for appellants.

      Patrick J. Murphy, Scranton, for appellee.
    Before DEL SOLE, BECK and HUDOCK, JJ.
   HUDOCK, Judge:

In this case of first impression, we must determine whether the trial court erred as a matter of law in concluding that a minor plaintiff cannot maintain an action for negligent infliction of emotional distress after observing his cousin drown on Appellee’s property. After a review of Pennsylvania precedent, several opinions of our trial courts, and decisions in other jurisdictions, we conclude that the trial court properly found no cause of action to exist. Thus, we affirm.

In its landmark decision in Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979) (plurality), our Supreme Court rejected the prior “zone of danger” concept with regard to recovery of damages for emotional injury caused by witnessing another’s death or injury and, in its stead, adopted a test based upon foreseeability. Thus, in order to maintain a claim for negligent infliction of emotional distress, the following three part test, borrowed from the decision of the California Supreme Court in Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968), must be applied:

(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.

Sinn v. Burd, 404 A.2d at 685 (quoting Dillon v. Legg, 69 Cal.Rptr. at 80, 441 P.2d at 920). It is only the third factor— the relationship between the plaintiff and the injured person— that is at issue in the present case.

In the cases decided after Sinn v. Burd, Pennsylvania litigation has centered on the second element of the above test, the contemporaneousness of the observance. In each appellate case discussing this issue, however, the relationship between the victim and the plaintiff has always been that of spouse, parent or child. Indeed, our Supreme Court suggested in Sinn v. Burd that only claims by members of the victim’s immediate family were considered to be within the third prong of the test. See Sinn v. Burd, 404 A.2d at 677 n. 6 (Lead opinion by Nix, J.) (“If plaintiff witnesses the negligent infliction of an injury to a member of his or her immediate family and suffered emotional harm as a result, to deny recovery merely because plaintiff was not subjected to the same risk of injury as his or her spouse, child or parent is unjust.”). Compare Yandrich v. Radic, 495 Pa. 243, 250, 433 A.2d 459, 462 (Opinion in Support of Affirmance, Nix, J.) (recovery should be allowable “[wjhere a parent or close blood relative actually witnesses a traumatic serious injury to a loved one[.]”).

Our research discloses no Pennsylvania appellate decision where the term “closely related” has been at issue. In urging this Court to reverse the decision of the trial court below, Appellant refers us to two opinions of trial courts in Pennsylvania and an appellate decision from the state of New Jersey. In arguing that the trial court’s dismissal of Appellant’s claim should be affirmed, Appellee relies on decisions from the states of California, Washington, and New York which have denied recovery in cases of similar close relationships. Although the decision is not an easy one, we conclude that, given our Supreme Court’s narrow construction of the second factor of the Sinn v. Burd test, we believe our high court would also narrowly construe this third factor to allow recovery only to a defined class of bystanders, that is, members of the injured person’s immediate family.

In the trial court cases cited by Appellant, an action for negligent infliction of emotional distress withstood preliminary objections where the plaintiff was the foster parent of the victim, Kratzer v. Unger, 17 D. & C.3d 771 (1981), and where the •victim was the fiance of the plaintiff, Black v. Wehrer, 74 Wash. Cty. Reports 71 (1994). In both of these cases, however, the trial courts found the nature of the relationship at issue to be closely akin to the type already sanctioned by our appellate courts, that is, natural parent and child, Kratzer, at p. 773 (“we do not perceive of a foster parent relationship as being significantly different from that of a natural parent and child for purposes of evaluating the degree of emotional trauma likely to be suffered____ The technical nomenclature ascribed to the relationship is not as important as the closeness of feelings between the participants.”), or husband and wife, Kratzer, at pp. 772-73 (Although an engaged couple does not have the rich depth of emotional experiences that a husband and wife have we do not perceive the former relationship as being significantly different from that of the latter in regards to evaluating the severity of emotional trauma likely to be suffered by the observer of a serious accident.). In addition, the New Jersey decision cited by Appellant, Dunphy v. Gregor, 136 N.J. 99, 642 A.2d 372 (1994), also involved a claim where the plaintiff was the fiance of the victim. In order to recover for negligent infliction of emotional distress, New Jersey law requires proof of a “marital or intimate familial relationship” between the plaintiff and the victim. Although New Jersey precedent had interpreted this term to include only close relatives or immediate family members, the Dunphy court allowed the claim to go forward due to its belief that, “given the widespread reality and acceptance of unmarried cohabitation, a reasonable person would not find the plaintiffs emotional trauma to be ‘remote and unexpected.’ ” Id. at 110, 642 A.2d 372 (citation omitted). We need not judge the wisdom of these cases, however, because the relationship at issue in the present case is that of cousins; a relationship that is different in kind from that of parent and child or husband and wife.

The California decision in Trapp v. Schuyler Construction, 149 Cal.App.3d 1140, 197 Cal.Rptr. 411 (1983), as cited by Appellee, involves facts similar to the instant matter. In Trapp, the minor plaintiffs witnessed their first cousin drown in a swimming pool on the defendant’s property. In their complaint the minor plaintiffs alleged that they were the first cousins of the victim with whom they “had a very close emotional attachment [sic].” Id. at 1141, 197 Cal.Rptr. 411. It was further alleged that the plaintiffs and the victim “played together often and had a relationship analogous [sic] to a relationship between siblings. Plaintiffs [sic] loved [the victim] as they would their own brother.” Id. Referring to the decision of the California Supreme Court in Dillon v. Legg, supra—the same case relied upon by our Supreme Court in Sinn v. Burd, supra—and concluding that the majority of California decisions following Dillon had construed the element narrowly, the Trapp court saw no reason to extend the test for reasonable foreseeability to first cousins, “family members well beyond the ‘immediate’ family unit of parents and children.” Id. at 1143, 197 Cal.Rptr. 411. The Trapp court further concluded that “Although appellants alleged that their relationship to the decedent was akin to that of siblings, and for purposes of ruling on the demurrer we accept that, it cannot be said that the respondent, under the ordinary man standard, knew or should have foreseen the quality of the relationship or that appellants, as close friends, cousins and regular playmates of the deceased, would witness the death of their first cousin.” Id. See also Croteau v. Olin Corp., 704 F.Supp. 318 (D.N.H.1989), aff’d, 884 F.2d 45 (owner of allegedly defective rifle could not maintain claim for negligent infliction of emotional distress upon witnessing injuries to two first cousins after the gun discharged; as a matter of law, first cousins are not “closely related”); Kately v. Wilkinson, 148 Cal.App.3d 576, 195 Cal.Rptr. 902 (1983) (complaint for negligent infliction of emotional distress dismissed although victim and plaintiff, who were both fourteen years of age at time of accident, were best friends and plaintiff cared for victim as she would a natural sister).

In Thing v. LaChusa, 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814 (1989), the California Supreme Court modified the Dillon test and replaced it with three somewhat different elements of proof as to the observation of the injury and the precise type of resultant injury. California has retained, however, the requirement that the plaintiff be closely related to the victim. The Thing court defined “closely related” as “relatives residing in the same household, or parents, siblings, children, and grandparents of the victim.” Thus, in California, members of the latter group can recover as bystanders even if they did not reside with the injured person; other relatives must prove residence. See also Kriventsov v. San Rafael Taxicabs, Inc., 186 Cal.App.3d 1445, 229 Cal.Rptr. 768 (1986) (claim allowed to proceed where uncle, who lived with nephew in the same household as part of a family unit, observed nephew run over by a car); Garcia v. San Antonio Housing Authority, 859 S.W.2d 78 (Tex.App.-San Antonio 1993) (although neither a close relationship nor an uncle-nephew relationship without more is sufficient for recovery, a relative residing in the injured person’s household may recover as a bystander).

The decision to narrowly construe the need for a bystander to be closely related to the victim in order to recover for the negligent infliction of emotional distress was perhaps best explained in the recent case of Trombetta v. Conkling, 82 N.Y.2d 549, 605 N.Y.S.2d 678, 626 N.E.2d 653 (1993). There the court held that a niece who narrowly missed being hit by a truck that struck and killed her aunt could not recover for the negligent infliction of emotional distress where, although she and the victim were very close, they were not members of the same immediate family. Despite the niece’s testimony that her mother had died when she was eleven and that the victim became a maternal figure in her life who always lived nearby and enjoyed many activities together on a daily basis, the New York Court of Appeals concluded that “[rjecovery of damages by bystanders for the negligent infliction of emotional distress should be limited only to the immediate family.” Id., 605 N.Y.S.2d at 679, 626 N.E.2d at 654 (quoting Bovsun v. Sanperi, 61 N.Y.2d 219, 473 N.Y.S.2d 357, 461 N.E.2d 843 (1984)). The Court of Appeals further noted that:

On firm public policy grounds, we are persuaded that we should not expand the cause of action for emotional injuries to all bystanders who may be able to demonstrate a blood relationship coupled with a significant emotional attachment or the equivalent of an intimate, immediate familial bond.
[W]e have been precise and prudent in resolving tort duties, because the significant expansion of a duty “must be exercised with extreme care, for legal duty imposes legal liability.” ... It remains part of this Court’s important common-law tradition and responsibility to define the orbits of duty.
In addition to the prevention of unmanageable proliferation of such claims — with their own proof problems and potentiality for inappropriate claims — the restriction of this cause of action to a discrete readily determinable class also takes cognizance of the complex responsibility that would be imposed on the courts in this area to assess an enormous range and array of emotional ties of at times, an attenuated or easily embroidered nature.

Trombetta, 605 N.Y.S.2d at 680-681, 626 N.E.2d at 655-656.

We recognize that, unlike Pennsylvania, New York courts have retained the “zone of danger” test and have declined to adopt the guidelines the California Supreme Court established in Dillon, supra. Nevertheless, we find their concerns regarding this issue compelling as to any further extension of the “closely related” standard of Dillon as adopted in Sinn v. Burd, supra. Moreover, because of the important and far reaching public policy concerns involved, any further extension of recovery for the tort for negligent infliction of emotional distress should come from our Supreme Court. See Brooks v. Decker, 343 Pa.Super. 497, 498-500, 495 A.2d 575, 576 (1985), aff'd, 512 Pa. 365, 516 A.2d 1380 (1986) (father could not maintain action for negligent infliction of emotional distress when he did not witness injury to son, but rather, arrived at accident scene shortly thereafter; “if law should be changed to allow such a cause of action, that change must come from the Supreme Court.”). Finally, although Brooks dealt with the restriction of recovery to the contemporaneous observation of the tort, we believe the following comments by our Supreme Court apply equally to an expansion of those entitled to recover beyond the victim’s immediate family:

Were we to accept appellant’s argument and hold actionable all emotional trauma causally connected to the defendant’s tortious conduct, we would [wreak] upon our society a problem of unlimited or unduly burdensome liability. The criteria set forth in Sinn v. Burd, supra, serve as a balance between a policy of total denial of all such claims for the negligent infliction of emotional distress and a policy of recovery for all who suffer emotional injury, regardless of their proximity to the accident.
While we do not doubt that appellant has sustained feelings of helplessness, anger, and frustration, we must once again proclaim that the common law has traditionally denied a damage award for the bereavement and grief caused by the fact of injury to another.

Id., 516 A.2d at 1382-83 (citations omitted). See also Kately, 195 Cal.Rptr. at 906 (“this strict construction of the second guideline articulated in Dillon persuades us that the third guideline should be equally strictly construed.”).

When considering the appropriateness of the trial court’s grant of a demurrer, this Court applies the same standard employed by the trial court:

The material facts set forth in the complaint as well as all inferences reasonably deducible therefrom must be admitted as true. The court must determine from the facts averred, whether the law says with certainty that no recovery is possible. If doubt exists whether a demurrer should be sustained, it should be resolved in favor of overruling the demurrer.

Smith v. Weaver, 445 Pa.Super. 461, 465-66, 665 A.2d 1215, 1217 (1995). In the present case the only averment in Appellants’ complaint regarding the relationship between the minor plaintiff and the victim is as follows: “6. Plaintiff and his cousin Derrick Hittinger, (Derrick) a minor of approximately the same age as plaintiff, were very close friends.” Taken as true, this averment is an insufficient basis for recovery for the tort of negligent infliction of emotional distress as a matter of law. The plaintiff is not a member of the victim’s immediate family, and, in the alternative, even were we to accept the modified definition of “closely related” in Thing, supra, there is no averment that the boys lived together as a family unit. Thus, the trial court did not err in granting Appellee’s preliminary objections in the nature of a demurrer and dismissing the complaint.

Order affirmed.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting.

Today, the Majority concludes as a matter of law that a child who witnesses the death of a cousin does not suffer emotional distress. Because I cannot agree no emotional harm would be suffered, I must dissent.

Appellants brought a claim for negligent infliction of emotional distress on behalf of their child. They claimed that the harm was occasioned when the boy witnessed his cousin drown on Appellee’s property, as a result of Appellee’s negligence. Appellee filed preliminary objections, contending that the nature of the relationship between the boys was not sufficient to support the cause of action. The trial court granted a demurrer and dismissed the claim, holding that, as a matter of law, the relationship of cousin is not sufficient to satisfy the requirements for a claim of negligent infliction of emotional distress.

In Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979) our Supreme Court rejected the prior “zone of danger” concept and adopted one based on foreseeability, making clear that a cause of action for negligent infliction of emotional distress must be addressed in terms of foreseeability. “Foreseeability enters into the determination of liability in determining whether the emotional injuries sustained by the plaintiff were reasonably foreseeable to the defendant.” 486 Pa. at 170, 404 A.2d at 684. The court discussed with approval three factors the California Supreme Court identified in Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968) as necessary to determine whether the plaintiffs injury was reasonably foreseeable, only one of which concerns us: (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship. Id., 404 A.2d at 685. The Court concluded that an evaluation of these factors will determine foreseeability. For instance, it is obvious that a defendant is more likely to foresee emotional harm to a parent who observes an accident to a child, than to a stranger who witnesses the same incident.

Given this test of foreseeability, I cannot say that cousins do not enjoy a sufficient familial relationship that precludes recovery. This relationship initially satisfies one factor of the test to the degree that the issue should proceed, and not be determined as a matter of law.

Appellants should be afforded the opportunity to present the case to a jury, which vail ultimately determine what injuries, if any, where inflicted; whether the harm to this plaintiff was foreseeable; and whether the personal relationship of these cousins was sufficient to support the claimed emotional distress. Jurors are capable of deciding if the harm claimed is legitimately supported by the event surrounding the accident, and the relationship between the plaintiff and victim.

Since the Majority refuses to allow the issue to proceed, I dissent.

      . The dissent mistakenly characterizes our holding as a pronouncement that a child who witnesses the drowning death of a cousin does not suffer emotional distress. To the contrary, that child undoubtedly suffers emotional distress. As does a person who sees his or her friend killed. As does the stranger who sees a stranger killed. The question is not whether the child who witnessed his cousin drown suffered emotional distress: the question is whether the law should allow for a recovery in money terms for that distress.

      . In Sinn v. Burd, supra, a count of plaintiffs' complaint included a claim for the resultant injuries suffered by the decedent’s sister who herself narrowly escaped injury from the path of the vehicle. Because the trial court determined that she was in the zone of danger, it overruled preliminary objections to that count of the complaint. The defendant did not appeal that part of the decision and, therefore, the high court was not required to consider that relationship in light of the test announced therein. Id., 404 A.2d at 674 n. 2. The same is true for the minor plaintiff in Mazzagatti v. Everingham by Everingham, 512 Pa. 266, 269 n. 1, 516 A.2d 672, 674 n. 1 (1986), who witnessed her sister being struck and fatally injured by a car.

      . My characterization of the majority's decision is based on its result— no possibility of compensation. In footnote one, the majority concedes that the plaintiff “undoubtedly suffered] emotional distress.” The majority poses the question as "whether the law should allow for a recovery in money terms for that distress.” The majority answers no. I ask, why not?

      . The other two factors are (1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it; (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. We will not discuss these factors because Appellee raised only the relationship issue.


source: Caselaw Access Project

author: DEL SOLE, Judge.

license: Public Domain

text:
    679 A.2d 795
    COMMONWEALTH of Pennsylvania v. Michael DOUVENTZIDIS, Appellant.
    Superior Court of Pennsylvania.
    Argued March 5, 1996.
    Filed June 26, 1996.

      William J. Honig and Jerome Brown, Norristown, for appellant.
    Mary M. Killinger, Executive Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before DEL SOLE, JOHNSON and CERCONE, JJ.
   DEL SOLE, Judge.

This is an appeal from a judgment of sentence of 6 to 23 months for possession of a controlled substance with intent to deliver. We vacate Appellant’s judgment of sentence and remand for a new trial.

On April 9, 1993, police officer Anthony Santoro, Detective Michael Altieri and three other officers, went to the home of Gary Malcolm for the purpose of executing a search warrant. When they approached the dwelling, they discovered that its wooden front door was opened one quarter of the way and that the outer screen door was closed. As they looked through the screen, they could see Appellant, Michael Douventzidis, laying on a couch located approximately six to eight feet from the door and watching television with a puppy on his chest. (Suppression Hearing Transcript dated 5/18/94 at pp. 11, 14, and 27). Officer Altieri testified that at this point, they knocked on the screen door once or twice and he announced that they were the police and had a search warrant. (N.T. at p. 25). According to Officer Altieri, Appellant looked at them “through the crack in the door” but remained laying on the couch. (N.T. at p. 28). After waiting 10 to 15 seconds, the officers entered the home. In response to their question of whether there were any drugs in the house, Appellant answered, “yes”, and led the officers to the kitchen where he opened a cabinet and removed a bag containing smaller bags of marijuana having a combined weight of more than a pound. In addition, the search also uncovered certain drug paraphernalia.

Appellant argues there was insufficient probable cause to support issuance of the warrant and that the police improperly executed it. We find merit in Appellant’s second claim.

In reviewing the denial of a suppression motion, we must: determine whether the factual findings of the (suppression) court are supported by the record. In making this determination, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense, as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error. Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701 (1982).

Commonwealth v. McDonel, 411 Pa.Super. 187, 190-191, 601 A.2d 302 (1991) [additional citations omitted].

At the close of Appellant’s suppression hearing, the court offered the following findings to support its holding that the warrant was properly executed.

The court finds that the — that Detective Altieri announced, police. The Court is unable to find whether or not he announced, we have á search warrant. The court makes no finding as to whether that was announced.
The court finds that the officers knocked, waited 10 to 15 seconds. The Court also finds that the subject was lying on the couch the entire time, looked at the police officer— looked toward the door at the police officers, did not make any attempt to move or get up or flee or open the door or do anything. He continued to play with the dog the whole time.
The Court finds that when the officers opened the screen door and entered the room, the subject got up from the couch and stood.
The Court has gone over the different cases that you people have submitted to me. And it’s clear that under Rule 2007, a police officer is to give notice of his identity, authority and purpose to any occupant of the premises unless exigent circumstances require immediate forcible entry. The Court finds that there was no forcible entry in this case. And I’m quoting from Commonwealth v. Davis, [407 Pa.Super. 415] 595 A.2d [1216] 1222 [(1991)]: The purpose of the knock and announce rule are [sic] or purposes are to prevent violence and physical injury to the police and occupants, to protect an occupant’s privacy expectations against unauthorized entry of persons unknown to him or her, and to prevent property damage resulting from forced entry.
The Court finds that the defendant’s expectations of privacy, if indeed they existed at all, were absolutely at a minimum when one lies on one’s couch on the first floor of a residence with the screen , door — with the main door open and the screen door closed, they cannot expect to have the privacy one would have behind a locked door. Anyone coming to the door to knock could look right in and see them in their house or what they’re doing. So that I would distinguish most of the cases that were given to me on that basis.
The second basis is the whole purpose, the way I see it, is to give the occupant a reasonable time in which to surrender their privacy. Well, here the defendant was able to just by turning his head see who was standing there with the words, Police, on their chest, and then did not make any effort to move, but again, the question is whether or not he had surrendered virtually all of his privacy by lying there in an open doorway.
I’m quoting from Commonwealth v. Clemson, 234 Pa.Super. 191, 338 A.2d 649, 651: The announcement doctrine is designed to protect the privacy afforded by the Fourth Amendment. An intrusion is no less an intrusion, quote, whether officers break down a door, comma, force open a chain lock on a partially opened door, comma, open a locked door by use of a passkey, or open a closed but unlocked door.
Except for that very last statement, a closed but unlocked door, and I don’t think any of these situations fit. I don’t think a screen door is synonymous with quote, closed but unlocked door because you can see through it. A closed but unlocked door would be a regular door. It’s closed but you may have to force it open. A screen door, I don’t think, affords anyone the privacy that a wooden or an opaque door would provide.
Now, although I did not find or I did not make a finding that the police specifically said, we have a search warrant, namely, announced their purpose, I am not — I don’t believe that this requirement is absolute and I feel that this — this is one of the situations where the occupant remained after repeated knocking and announced they were police. Their jackets had the word, Police, on it and again, the purpose of the knock and announce is to give people time to open the door, so no one uses a battering ram or shoots a lock off or slams into the door and breaks it.
So based upon those reasons — I found also under Commonwealth v. Beard, that case can be distinguished. In that case the police did not knock or announce but chased the man into his house and the entry was far from peaceful. I find that the 10 to 15 second delay again, although there is a case Commonwealth v. Mazella which discusses the number of seconds, I would distinguish that situation from this one by quoting, they quote a case Commonwealth v. [DeMichel] Demachelle, and that cite is 442 Pa. 553, 277 A.2d 159, a 1971 case, where the court held that a delay of five to 15 seconds was insufficient to give the occupants an opportunity to surrender the premises voluntarily. And again they say, regardless of how great the probable cause to believe a man guilty of a crime, he must be given a reasonable opportunity to surrender his privacy voluntarily. And the Supreme Court is saying that the time period of five to 10 seconds was unreasonably short. And I would say that this case based upon the totality of the circumstances, the fact that there was number one, an open door, number two, there was virtually no force used, there was no violence, and the fact that the occupant of the home was lying six to eight feet from the open door, saw the police, saw their jackets with the word police and did nothing to get up and open the door, to me he was certainly given a reasonable expectation of privacy. I mean, excuse me, he was given a reasonable expectation to stand up voluntarily and he didn’t, and I don’t feel that entering the residence under these circumstances would constitute the kind of forcible entry that the Fourth Amendment is designed to prevent.

(N.T. at pp. 51-55).

Unlike the suppression court, we find this case presents us with a myriad of reasons why the execution of the search warrant was improper. First, the police clearly did not comply with the well established “knock and announce” rule of this Commonwealth when they failed to state them purpose prior to entering the dwelling. “A search is not to be made legal by what it turns up. In law it is good or it is bad when it starts and does not change character from what is dug up consequently.” Commonwealth v. Chambers, 528 Pa. 403, 411, 598 A.2d 539, 542 (1991) (citing Commonwealth v. Newman, 429 Pa. 441, 449, 240 A.2d 795, 799 (1968)) [additional citations omitted]. At the suppression hearing, both Officer Santoro and Detective Altieri testified that when Detective Altieri knocked on the door and announced “police”, he also stated they were there to execute a search warrant. During cross examination of these individuals, however, it became unclear whether Detective Altieri stated their purpose prior to entering the home. Accordingly, the suppression court specifically refrained from making any finding regarding whether Detective Altieri, in fact, announced their purpose. The Commonwealth labels the officers’ failure to announce, a mere “oversight” and claims it was reasonable under the circumstances. We disagree. Rule 2007 of the Rules of Criminal Procedure directs as follows:

(a) A law enforcement officer executing a search warrant shall, before entry, give, or make reasonable effort to give, notice of his identity, authority and purpose to any occupant of the premises specified in the warrant, unless exigent circumstances require his immediate entry.
(b) Such officer shall await a response for a reasonable period of time after his announcement of authority and purpose, unless exigent circumstances require his immediate forcible entry.
(c) If the officer is not admitted after such reasonable period, he may forcibly enter the premises and may use as much physical force to effect entry therein as is necessary to execute the search.

In the present case, there is no evidence of exigent circumstances that would excuse the police from announcing their purpose. In fact, the officers testified that they looked through the screen door and saw Appellant simply laying on the couch watching television. Furthermore, Officer Santoro testified that as they approached the house, he didn’t hear any strange noises within the home. (N.T. at p. 22). In light of these facts and in the absence of any legal support for the officers’ failure to announce their purpose prior to entering the dwelling, we hold the search was invalid.

In addition, the suppression court placed great emphasis on the fact that the officers entered through a screen door rather than through a door made of solid material. The court reasoned that because anyone could see through the screen door, Appellant’s right to privacy was somehow diminished. We disagree.

The purpose of the “knock and announce” rule is to prevent violence and physical injury to the police and occupants, to protect an occupant’s privacy expectation against the unauthorized entry of unknown persons, and to prevent property damage resulting from forced entry, [citations omitted]. The purpose may be achieved only if the police officer awaits a response for a reasonable period of time after his announcement of identity, authority, and purpose, [emphasis added].
The rule is intended to protect individuals from searches and seizures that are unreasonable because of the manner of the execution of a warrant.

Commonwealth v. Chambers, 528 Pa. 403, 408, 598 A.2d 539, 541 (1991).

Without citing to any legal authority in support of its position, the suppression court reasoned that because Appellant was “lying in an open doorway” he had “surrendered virtually all of his privacy”. (N.T. at p. 53). A close examination of the testimony provided to the suppression court does not support this conclusion. The testimony clearly shows that the home’s solid door was open only a quarter of the way. The limited view of the interior of the home could, in fact, only be obtained by standing at the front doorway and looking through its narrow opening.

The court also reasoned that because Appellant could see the officers through the screen door, the purpose of the “knock and announce” rule was fulfilled. We disagree. If anything, the facts indicate Appellant did not hear Detective Altieri knock and announce the officers’ presence. While Appellant may have looked towards the door, as one might if they thought they heard a noise, there is absolutely no indication that he saw the officers through the doorway’s small opening. In addition, the officers testified that the puppy laying on Appellant’s chest had no reaction to their presence at the door. Therefore, we cannot agree with the suppression court’s ruling that, because the Appellant saw the officers through the screen door, the purpose of the “knock and announce” rule was satisfied.

Finally, we hold that the officers failed to wait a reasonable amount of time before entering the premises. (See Commonwealth v. DeMichel, 442 Pa. 553, 277 A.2d 159 (1971) delay of 5-15 seconds was inadequate; Commonwealth v. Newman, 429 Pa. 441, 240 A.2d 795 (1968) delay of 20 seconds was not reasonable; Commonwealth v. McDonel, 411 Pa.Super. 187, 601 A.2d 302 (1991) delay of thirty seconds was insufficient). By their own admission, the officers knocked only once or twice — “[j]ust a couple of bangs on the door” (N.T. at p. 28), waited only 10-15 seconds and entered the dwelling. We find no exigent circumstances that would warrant such an entry.

Accordingly, we hold that the officers improperly executed the search warrant by failing to comply with the “knock and announce rule” set forth in Rule 2007 of the Rules of Criminal Procedure, Pa.R.Crim.P. No. 2007, 42 Pa.C.S.A.

Judgment of sentence is vacated and the case is remanded for a new trial. Jurisdiction relinquished.

      . All references to notes of testimony set forth herein refer to the Suppression Hearing Transcript dated May 18, 1994.

      . Because we find merit in Appellant's claim that the warrant was improperly executed, we need not address his claim regarding whether the warrant was supported by probable cause.


author: HESTER, Judge.

text:
    679 A.2d 800
    POTOMAC COAL COMPANY, a Corporation, PNC Bank, National Association, formerly Pittsburgh National Bank, a National Banking Association, and Clise Coal Company, v. $81,961.13, IN the HANDS OF AN ESCROW AGENT. Appeal of PNC BANK, NATIONAL ASSOCIATION.
    Superior Court of Pennsylvania.
    Argued Feb. 8, 1996.
    Filed June 26, 1996.

      Richard B. Tucker, III, Pittsburgh, for appellant.
    Robert W. Koehler, Pittsburgh, for Potomac Coal Co., appellee.
    David W. Tyree, Pittsburgh, for Clise Coal Company, appellee.
    Before JOHNSON, FORD ELLIOTT and HESTER, JJ.
   HESTER, Judge.

PNC Bank, N.A., appeals the August 31, 1995 order granting the motion for summary judgment filed by appellees, Potomac Coal Company (“Potomac Coal”) and Clise (“Clise”) Coal Company, and denying appellant’s motion for summary judgment. In this interpleader action, appellant and Clise claim $81,961.13 currently held in an escrow account. We are asked to determine the enforceability of a future advance or “dragnet clause” in a security agreement executed by Potomac Coal. We conclude that the clause is valid under section 9204(c) of the Uniform Commercial Code (“UCC”), 13 Pa.C.S. §§ 1101, et seq., are constrained to reverse, and award the escrowed funds to appellant.

The procedural history and facts of this case are not disputed. Potomac Edison Company (“Potomac Edison”) instituted this interpleader action on February 5, 1993, as both appellant and Potomac Coal were asserting conflicting claims to a payment which was due from Potomac Edison to Potomac Coal under a purchase order contract. Appellant had advised Potomac Edison that it had a security interest in all of Potomac Coal’s accounts receivable, including the amount due from Potomac Edison. Potomac Coal had advised Potomac Edison that to the contrary, appellant did not have a valid security interest in its accounts receivable. Accordingly, Potomac Edison, disclaiming any interest in the payment admittedly due under the purchase order, instituted this action and asked that the respective claimants settle their dispute.

After appellant filed an answer, new matter and counterclaim to Potomac Edison’s complaint, Potomac Coal filed an answer and new matter alleging that it had assigned all of its right in the Potomac Edison receivable to Clise and that it would no longer claim any interest in the receivable. Clise filed a petition to intervene to assert its claim to the fund. That petition was granted. Clise then filed its answer and counterclaim. After the pleadings were closed, Potomac Edison filed a motion for discharge, which was granted, and the caption of this case was amended. Cross-motions for summary judgment were filed by Clise and Potomac Coal, on the one hand, and appellant, on the other hand. When Clise was awarded the funds, this appeal followed.

Potomac Coal, a Pennsylvania corporation, was in the business of buying and selling coal in Pennsylvania, Maryland, and West Virginia, from the late 1970s until 1992, when it ceased operations. James Dean and Charles Moran were the officers and principals of Potomac Coal and had authority to enter into agreements on its behalf.

Potomac Coal and appellant began to do business in the 1980s. On December 28, 1984, Dean and Moran, on behalf of Potomac Coal, executed a secured judgment note payable to appellant in the amount of $800,000. Under the provisions of the note, Potomac Coal had a revolving $800,000 line of credit and promised to repay the principal and outstanding interest on demand. To secure the obligations under the note, Potomac Coal granted appellant a security interest in, among other things, all the accounts, contract rights, and chattel paper then owned by Potomac Coal or any accounts, contract rights, and chattel paper which would be acquired thereafter.

The security interest from Potomac Coal to appellant also was evidenced by a chattel mortgage security agreement and an assignment of accounts, contract rights, and chattel paper. These two documents were executed by Dean and Moran on behalf of Potomac Coal and granted appellant a security interest in, among other things, all of Potomac Coal’s present and future accounts, contract rights, and chattel paper, and the proceeds of those items.

In January, 1995, appellant filed UCC financing statements with the Secretary of the Commonwealth of Pennsylvania and with the Office of the Prothonotary of Somerset County, Pennsylvania. These statements indicated that Potomac Coal had given appellant a security interest in all of its accounts, contract rights, and chattel paper which were then owned or which subsequently were to be acquired by Potomac Coal, together with the proceeds therefrom.

In January, 1988, Potomac Coal secured a term loan from appellant in the amount of $200,000. In connection with that transaction, Potomac Coal executed a security agreement to secure all of its obligations to appellant by assignment of, among other things, all of Potomac Coal’s present and future accounts, contract rights, and chattel paper. The agreement provides as follows:

The undersigned [Potomac Coal] does hereby mortgage to [appellant] and grant to it a security interest in all of the goods listed and described hereinafter, ... as security for the payment of all indebtedness, liabilities or obligations (all hereinafter called “obligations”) of [Potomac Coal], whether direct or contingent, due or to become due, whether now existing or hereafter arising, and whether with any other person or not, to [appellant], together with all costs and expenses incurred by [appellant] in the collection of the same,____

Reproduced Record (“R.R.”) at 267a (emphases added). This clause commonly is referred to as a future advance clause and also as a “dragnet clause.”

The goods described in the 1988 security agreement included, “All machinery, equipment, leases, inventory, accounts, contract rights and/or chattel paper now owned or hereafter acquired together with proceeds and products thereof.” Id. at 268a (emphasis added).

In connection with the 1988 transaction, Potomac Coal, by its two principals, also executed another assignment of accounts, contract rights and chattel paper wherein appellant was granted a security interest in all of Potomac Coal’s present and future accounts, contract rights, and chattel paper for all of the indebtedness, liabilities, and obligations of Potomac Coal to appellant.

In the security agreement, Potomac Coal indicated that the goods in which the security interest was being granted were located in Frostburg, Maryland. Accordingly, appellant obtained UCC financing statements from Potomac Coal and filed them with the State of Maryland and the County of Allegany, Maryland, in May, 1988. The financing statements indicate that the debtor was Potomac Coal, the secured party was appellant, and the property covered by the financing statement was “[a]ll machinery, equipment, leases, inventory, accounts, contract rights and/or chattel paper now owned or hereafter acquired together with proceeds and products thereof.” Id. at 269a, 270a. (emphasis added). In April, 1991, Potomac Coal repaid the 1988 loan but the 1984 revolving line of credit remained outstanding.

In 1992, Potomac secured a contract to supply coal to Potomac Edison. Potomac Coal purchased coal for Potomac Edison from Clise. At the time, Clise did not have a security interest in any of Potomac Coal’s assets.

By the end of 1992, Potomac Coal had failed to make payments required under the 1984 judgment note and appellant, after a meeting with Dean, indicated that it would not make any further advances under the line of credit. On December 15, 1992, as permitted under the terms of the 1984 judgment note, appellant demanded all of the outstanding principal and interest due in the amount of $622,178.41.

On December 15, 1992, appellant also sent a letter to Potomac Edison notifying it of appellant’s security interest in all accounts due to Potomac Coal. A copy of this letter was sent to Potomac Coal.

On December 28, 1992, counsel for Potomac Coal wrote to Potomac Edison stating that Potomac Coal’s indebtedness to appellant had been paid and the amounts owed by Potomac Edison to Potomac Coal should be paid directly to Potomac Coal. Potomac Coal did not make payment to appellant under the 1984 judgment note and as of March 15, 1995, owed $602,835.65 in principal and $112,952.86 in interest, plus costs and attorneys’ fees.

On January 4, 1993, an assignment was prepared transferring Potomac Coal’s rights in the Potomac Edison account to Clise. A UCC financing statement also was prepared and executed to perfect Clise’s security interest in “Accounts Receivable due to Potomac Coal Company from the Potomac Edison Company, Downsville Pike, Hagerstown, MD 21740.” Id. at 337a, 338a. In July, 1993, after appellant made demand for payment of its 1984 line of credit, Potomac Coal made a demand on appellant that it file termination statements with respect to the 1988 UCC filings.

In deciding this case, the trial court concluded that the 1988 UCC statements filed in Maryland secured only the 1988 loan, which had been paid, and that the 1988 security agreement did not cover the 1984 line of credit. In reaching this conclusion, the trial court indicated that since the “1988 security agreement contained no reference to the 1984 security agreement,” the 1988 documents did not relate to the prior indebtedness of Potomac Coal. Trial court opinion, 8/31/95, at 3.

The trial court’s decision to view the 1988 documents as relating to only the 1988 indebtedness cannot be sustained in light of the dragnet clause in the 1988 documents. The security agreement contains clear language that “all indebtedness, liabilities or obligations (all hereinafter called “obligations”) of [Potomac Coal], whether direct or contingent, due or to become due, whether now existing or hereafter arising ” were secured by the agreement. By this language, which is completely unambiguous, the parties intended that all of Potomac Coal’s past and future obligations to appellant would be secured. See In re Sunshine Books, Ltd., 41 B.R. 712 (Bankr. E.D.Pa.1984); Kitmitto v. First Pennsylvania Bank, N.A., 518 F.Supp. 297 (E.D.Pa.1981); Marine National Bank v. Airco, Inc., 389 F.Supp. 231 (W.D.Pa.1975).

In 1988, UCC financing statements were filed in the proper jurisdiction based on this security agreement. The 1988 statements were sufficient under section 9402(a) of the UCC in that they: (1) named the debtor and the secured party; (2) were executed by the debtor; (3) gave the address of the secured party from which any information concerning the security interest could have been obtained, including the fact that future advances and antecedent debt were secured thereby; (4) gave a mailing address of the debtor; and (5) contained a statement indicating the types and describing the items of collateral. There is no requirement in section 9402(a) that financing statements refer to the specific debt being secured.

The actual issue in this case, then, is whether the future advance or dragnet clause itself is enforceable. In the law relating to real estate mortgages, dragnet clauses are clauses included in mortgages whereby creditors attempt to secure debt unrelated to the original mortgage indebtedness. In the real estate area, these clauses, are widely disfavored since they cloud title. E.g., In re: Shapiro, 109 B.R. 127 (Bankr.E.D.Pa.1990).

However, these types of clauses specifically are permitted under section 9204 of the UCC, which states, “(c) Security agreement may cover future advances. — Obligations covered by a security agreement may include future advances or other value whether or not the advances or value are given pursuant to commitment----” 13 Pa.C.S. § 9204(c). In the advisory committee note to the precursor of section 9204(c), the committee indicates that the provision was intended to validate future advance clauses like the one at issue herein. Thus, the terms of the security agreement, and specifically provisions regarding future advances, generally are to be considered effective under the UCC. In re: Sunshine Books, Ltd., supra.

Subsequent to the enactment of the UCC, however, a “relatedness rule” was developed which reflected the disfavor with which dragnet clauses had been viewed. In Kitmitto v. First Pennsylvania Bank, N.A., supra, at 300-01 (footnote omitted), the court comprehensively examined the origin of the relatedness rule as well as the countervailing case law:

[The “relatedness rule”] serves to limit application of a future advance clause to those advances which are of the same class as the primary transaction. See, e.g., Marine National Bank v. Airco, Inc., 389 F.Supp. 231, 234 (W.D.Pa.1975); In re Eshleman, 10 U.C.C. Rep. 750, 752, 1972 WL 20838 (Bankruptcy E.D.Pa.1972); Community Bank v. Jones, 278 Or. 647, 566 P.2d 470, 482 (1977).
The relatedness rule developed prior to the enactment of the Uniform Commercial Code and was a reflection of the disfavor with which courts viewed future advance or dragnet clauses in security agreements. See 12A Pa.Stat.Ann. § 9-204(5) (Purdon 1970) (official comment) (repealed 1979), 2 G. Gilmore, Security Interests in Personal Property, § 3513, at 920-21 (1965); Justice, Secured Transactions—What Floats Can Be Sunk, 24 Vill.L.Rev. 867, 899 (1979). Upon the enactment of the Code, with its express validation of future advance arrangements which were covered by the agreement, the question arose as to whether the relatedness rule survived. Professor Gilmore, who was one of the principal drafters of Article 9, was of the opinion that it did. He wrote:
“However ‘covered by the security agreement’ is to be read, § 9-204(5) should not be taken to override the so called ‘dragnet’ cases under pre-Code law. Legitimate future advance arrangements are validated under the Code, as indeed they generally were under pre-Code law. This useful devise can, however, be abused; it is abused when a lender, rely mg on a broadly drafted clause, seeks to bring within the shelter of his security arrangements claims against the debtor which are unrelated to the course of financing that was contemplated by the parties. In the dragnet cases, the courts have regularly curbed such abuses: no matter how the clause is drafted, the future advances to be covered must ‘be of the same class as the primary obligation ... and so related to it that the consent of the debtor to its inclusion may be inferred.’ The same tests of ‘similarity’ and ‘relatedness’, vague but useful, should be applied to § 9-204(5).”
2 Gilmore, supra at 932.
Adhering to this view, a number of courts have held that the relatedness rule applies to a future advance security agreement under the Code. See e.g., Marine National Bank v. Airco, Inc., 389 F.Supp. 231, 234 (W.D.Pa.1975); National Bank of Arkansas v. [Blankenship] General Mills, Inc., 177 F.Supp. 667 (E.D.Ark.1959), aff'd sub nom. National Bank of Eastern Arkansas v. General Mills, Inc., 283 F.2d 574 (8th Cir.1960); Community Bank v. Jones, 278 Or. 647, 566 P.2d 470 (1977); John Miller Supply Co. v. Western State Bank, 55 Wis.2d 385, 199 N.W.2d 161, 165 (1972). Other courts, however, have applied the parol evidence rule and have held that unambiguous future advance clauses cover all future advances. See, e.g., In re Riss Tanning Corp., 468 F.2d 1211, 1213 (2d Cir.1972) (applying New York law); In re Public Leasing Corporation, 488 F.2d 1369, 1377-1378 (10th Cir.1973) (applying Oklahoma law).

We believe that the better-reasoned approach is the one applying the relatedness test, and we conclude that the 1984 loan at issue herein was sufficiently related to the 1988 loan that the 1988 security agreement should be construed as encompassing that loan. Thus, the future advance clause at issue herein is valid.

Normally, loans are considered related if the loans have been secured to provide working capital for the same business venture. See Marine National Bank v. Airco, Inc., supra; see also In re Southwest Pennsylvania Natural Resources, Inc., 11 B.R. 900 (Bankr.W.D.Pa.1981). On the other hand, if one contractual liability is secured to purchase a personal item and another is secured to purchase a business item, the contractual liabilities are not considered related. See In re Grizaffi, 23 B.R. 137 (Bankr.D.Colo.1982). Herein, the loans were secured by the principals of a coal brokerage business to provide working capital for that business. Accordingly, the relatedness test is satisfied, the future advance clause is enforceable, the security agreement covered the 1984 and 1988 loans, and the UCC financing statements filed in Maryland in 1988 remained valid with respect to the outstanding 1984 indebtedness even though the 1988 term loan had been paid.

Potomac Coal also argues that the assignment of the Potomac Edison account receivable to Clise is outside the ambit of the UCC pursuant to section 9 — 104(f), which provides in relevant part that the provisions of Article 9 do not apply to “a transfer of a single account to an assignee in whole or partial satisfaction of a preexisting indebtedness.” 13 Pa.C.S. § 9104(6).

In the present case, Potomac Coal assigned all of “its right, title, and interest in” the account receivable at issue. R.R. at 336a. However, Potomac Coal’s right to the account receivable was subject to the 1988 security agreement, and therefore, Clise’s right to the account remained subject to that agreement. Accordingly, this argument fails.

Order reversed. Judgment entered in favor of PNC Bank, N.A. Jurisdiction relinquished.

      . There was some question in the trial court as to whether Maryland or Pennsylvania law should be applied in this action. However, the parties have represented in their briefs to this court that both Maryland and Pennsylvania law on this issue are the same.


author: TAMILIA, Judge. FORD ELLIOTT, Judge,

text:
    679 A.2d 805
    JOSEPH P. RUDOLPH, M.D., FAMILY PROFESSIONAL CENTER, P.C., a Professional Corporation and Family Professional Center Laboratory v. PENNSYLVANIA BLUE SHIELD, a Professional Health Service Corporation.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1996.
    Filed July 1, 1996.

      Charles P. Falk, Pittsburgh, for appellant.
    Albert G. Feczko, Jr., Pittsburgh, for appellee.
    Before TAMILIA, FORD ELLIOTT and EAKIN, JJ.
   TAMILIA, Judge.

Pennsylvania Blue Shield appeals from the judgment entered upon the April 3, 1995 Order confirming an arbitration award in appellees’ favor in the amount of $110,580.30.

The medical services underlying this action were performed by appellees, a Blue Shield participating physician and his professional corporation, for appellant’s customers between June, 1986 and November, 1987. However, charges for some of the procedures performed by appellees were denied by appellant on the basis that they were neither medically necessary nor cost effective. Thereafter, pursuant to statute and the contract entered by the parties, appellees submitted their claim for payment of fees to the Blue Shield Medical Review Committee. On November 3, 1987, the Medical Review Committee denied appellees’ claims and ordered appellees to repay appellant $26,005, which the committee found to have been improperly paid to appellees for medical services. On December 30, 1987, appellees filed their contract action in the Court of Common Pleas of Allegheny County. Thereafter, in various pleadings, appellant attacked appellees’ action on the basis that the trial court lacked subject matter jurisdiction over a Medical Review Committee decision. The court repeatedly denied this claim. On March 20, 1992, the trial court entered an Order by stipulation that appellees’ claims were to be heard by a panel of physician arbitrators in lieu of a jury trial. On February 15, 1994, the panel entered its award finding that appellant must repay to appellees the $26,005 refund ordered by the Medical Review Committee’s decision of November 3, 1987. Also, the panel found in favor of appellees in the amount of $75,000 for other medical services provided. By Order dated April 3, 1995, the trial court confirmed the arbitration panel’s award, added interest and entered judgment against appellant in the amount of $110,580.30. On appeal, appellant again alleges the trial court lacked subject matter jurisdiction to review a decision of the Medical Review Committee.

Thus, the issue in this case, apparently one of first impression in the appellate courts of Pennsylvania, requires us to determine the proper scope of judicial review, if any, following an award by a professional health corporation’s review committee established pursuant to the Pennsylvania Health Services Plan Corporations Act, 40 Pa.C.S. § 6301 et seq. (“Regulatory Act”). Initially, our review of Pennsylvania appellate case law reveals only two references to this issue, neither of which is conclusive on the question at issue.

The first case, Pennsylvania Blue Shield v. Commonwealth Dept. of Health, 93 Pa.Cmwlth. 1, 500 A.2d 1244 (1985), involved an appeal from a Medical Review Committee determination that Blue Shield had not improperly withheld fees from KGD, a group of Blue Shield participating physicians. Following the determination, KGD filed a complaint with the Department of Health, which determined Blue Shield improperly had withheld fees and ordered payment of those fees. Blue Shield then appealed the Department of Health’s Order to the Commonwealth Court. In holding that the Department, as an administrative agency, had no jurisdiction to review the Medical Review Committee decision, the court also noted:

A doctor can always seek review of an unfavorable Medical Review Committee decision concerning a contractual provision with the professional health service corporation in the appropriate state court with jurisdiction over contract disputes.

Id. at 13-14, 500 A.2d at 1250.

Unfortunately, the authority of this statement is undermined not only by the fact that it was offered without citation, but also because it is clearly dictum, being irrelevant to whether the Department of Health can review a Medical Review Committee decision. Moreover, the statement does not disclose whether the “review” which the court finds available includes a trial de novo or merely a limited review for fraud or misconduct in the committee proceeding.

Following the adverse decision in Pennsylvania Blue Shield, KGD filed suit in the Court of Common Pleas of Philadelphia County to obtain the withheld fees. The trial court granted judgment on the pleadings in favor of Blue Shield and KGD appealed to this Court. In affirming the grant of judgment on the pleadings, we held that “since KGD failed properly to seek review of the Medical Review Committee’s decision, the issue ... has been finally adjudicated.” Kline v. Blue Shield of Pennsylvania, 383 Pa.Super. 347, 351-53, 556 A.2d 1365, 1368 (1989). The obvious implication of this holding, which explicitly relied upon Pennsylvania Blue Shield, is that some type of “review” was available to KGD. However, no further citation is offered for this proposition and, like the Commonwealth Court in Pennsylvania Blue Shield, we did not discuss the nature of “review” available.

Hence, Pennsylvania Blue Shield and Kline provide little guidance on the question of whether review is available from an adverse committee decision. Further, even assuming Pennsylvania Blue Shield and Kline are sufficient authority for the proposition that review is available, they do not disclose whether that review may proceed de novo or only for a determination of unfairness in the committee proceeding. Hence, we consider these questions anew and, turning to Pennsylvania statutory and analogous case law, we find that review from an adverse committee decision, while available, may be obtained only upon an allegation of fraud or misconduct in the committee proceeding. The grant of a trial de novo to appellees was therefore in error.

Our analysis begins with the Regulatory Act, which governs the relationship of the parties involved herein. Section 6324(c) of the Act provides as follows:

§ 6324. Rights of health service doctors
(c) Disputes. — All matters, disputes, or controversies relating to the professional health services rendered by the health service doctors, or any questions involving professional ethics, shall be considered and determined only by health service doctors as selected in a manner prescribed in the bylaws of the professional health service corporation.

(Emphasis added.)

Pursuant to the mandate of this section, appellant has promulgated Article X of its bylaws, which provides in relevant part:

ARTICLE X
Disputes and Controversies Involving Doctors
Section 1. Review Committees. All matters, disputes or controversies arising out of the relationship between the Corporation and doctors of medicine ... shall be considered, acted upon, disposed of and determined by the appropriate one of the two Review Committees hereinafter referred to.
Section 2. Medical Review Committee. There shall be a Medical Review Committee consisting of at least five (5) members....

(Emphasis added.)

In order to become a Blue Shield participating physician, appellees executed the following contract:

Participating Doctors Agreement With Pennsylvania Blue Shield
I, the undersigned doctor of medicine duly licensed to engage in practice under the applicable laws of the Commonwealth of Pennsylvania, in consideration of being registered by Pennsylvania Blue Shield (hereinafter termed “Blue Shield”) as a Participating Doctor, do hereby agree as follows:
I will perform services for Blue Shield subscribers, make reports to Blue Shield concerning such services and accept compensation therefore, as provided for in the Blue Shield Regulatory Act, as heretofore or hereafter reenacted or amended, and the By-laws [and] the applicable rules and regulations^]

R. 32a (emphasis added).

Hence, in exchange for access to appellant’s customers, appellees executed a contract agreeing to abide by the Regulatory Act and appellant’s bylaws. As noted above, the Regulatory Act provides that disputes “shall be considered and determined only by health service doctors as selected in a manner prescribed in [appellant’s] bylaws”. Also as noted above, Article X of those bylaws provides that all disputes “shall be considered, acted upon, disposed of and determined by the [Medical Review Committee]”. Upon execution of the Participating Doctors Agreement, appellees explicitly and voluntarily assumed the obligations included in section 6324(c) and Article X. These sections, which use the phrases “determined only by”, “acted upon” and “disposed of’, clearly contemplate finality in the committee decision.

On this basis, we reject appellees’ claim that the committee proceeding was merely a “preliminary” and “initial procedure” (Appellees’ brief at 8, 15) prior to trial in the Common Pleas Court. Such a construction would not only-defeat the legislative intent behind section 6324(c) and render the proceeding contemplated therein irrelevant, but it would also require the duplicative and expensive litigation which section 6324(c) obviously seeks to avoid. We will not countenance such a construction. See 1 Pa.C.S. § 1922(1) (statutory presumption that legislature does not intend “absurd” or “unreasonable” result).

Moreover, 1 Pa.C.S. § 1504 provides as follows:

§ 1504. Statutory remedy preferred over common law
In all cases where a remedy is provided or a duty is enjoined or anything is directed to be done by any statute, the directions of the statute shall be strictly pursued, and no penalty shall be inflicted, or anything done agreeably to the common law, in such cases, further than shall be necessary for carrying such statute into effect.

Our Supreme Court has discussed section 1504 as follows:

This statute says in unambiguous language that, if the legislature provides a specific, exclusive, constitutionally adequate method for the disposition of a particular kind of dispute, no action may be brought in any “side” of the Common Pleas to adjudicate the dispute by any kind of “common law” form of action other than the exclusive statutory method.

School District of the Borough of West Homestead v. Allegheny County Board of School Directors, 440 Pa. 113, 118-19, 269 A.2d 904, 907 (1970). Thus, in light of section 6324(c)’s mandate that the instant dispute “shall be considered and determined only by” the Medical Review Committee, that proceeding was appellees’ “specific [and] exclusive” remedy and they were improperly permitted to proceed with a trial de novo, so long as the committee proceeding was “constitutionally adequate”. Borough of West Homestead, supra.

Turning to the constitutional validity of the committee proceeding, we note appellees’ claim that they “were not given a full and fair hearing” because they “were not represented by counsel, were not permitted to call witnesses, were not permitted to cross-examine representatives from Blue Shield[,] were not permitted to have a record made of the hearing [and] the Medical Review Committee refused to consider numerous claims”. (Appellees’ brief at 12-13.)

Initially, in holding a Medical Review Committee proceeding constitutionally adequate, the Commonwealth Court has stated:

The essential elements of due process in administrative proceedings are notice and the opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case, before a tribunal with jurisdiction over the matter.

Greenstein v. Commonwealth Dept. of Health, 98 Pa.Cmwlth. 445, 453, 512 A.2d 739, 743 (1986), citing Wojciechowski v. Unemployment Compensation Board of Review, 47 Pa.Cmwlth. 116, 119, 407 A.2d 142, 143 (1979). Further, our Supreme Court has noted that “due process is not synonymous with judicial process.” Commonwealth v. Cronin, 336 Pa. 469, 473, 9 A.2d 408, 410 (1939).

Appellant’s guidelines governing the conduct of its Medical Review Committee include the following provisions:

PA Blue Shield
Review Committee Guidelines
4. .. .The provider [physician] will be encouraged to submit any additional information which could have a bearing on the matter and/or create the basis for a settlement or adjustment to the refund amount requested, if any.
5. Should further communications fail to result in an agreement as to the provider’s refunding and overpayment, if any, or other matters pertaining to the review, the provider will receive written notification at least thirty (30) calendar days in advance of the date of the Review Committee meeting at which his case will be considered, of his right to appear before the committee and of his right to be represented by legal counsel. The provider is again encouraged to provide any information which may be pertinent to the resolution of the matter. Accompanying the letter is another copy of the basis of any refund requests, the applicable section(s) of the Blue Shield Bylaws pertaining to review committees, the review committee guidelines and, if applicable, the participating doctors agreement and the regulations for participating doctors.
6. At least fifteen (15) calendar days prior to the date of the review committee meeting at which his case will be considered, the provider will be given a copy of the documentation to be presented to the review committee.
7. A provider may forward information to the review committee or, upon written request to the secretary of the committee, may appear before the committee. A provider who requests to appear before the committee will be notified of the date and time of his appearance at least fifteen (15) calendar days prior to the meeting. Such notification will inform the provider of the exact nature of the proceeding, of his right to represent his disagreement and to provide any further information which will aide the committee in its deliberation of the matter.

(R. 41a and 42a; emphasis added.)

Our review of these provisions clearly indicates that providers like appellees are given “notice and the opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case”. Greenstein, Wojciechowski, supra. Thus, in the absence of any allegation that the committee violated its guidelines in adjudicating appellees’ dispute, we find the proceeding constitutionally adequate. Greenstein, supra, and appellees were not deprived of their right to trial. See West Homestead, supra. Further, it is of no import that appellees failed to be represented by counsel or offer additional evidence of their claims, because they were clearly given the opportunity to do so.

Based on the foregoing, we find that the trial court improperly denied appellant’s motion for judgment on the pleadings based on a lack of subject matter jurisdiction and thereafter erred in allowing appellees to proceed with a trial de novo before the panel of physician arbitrators.

Finally, returning to the starting point of this analysis, we find that the “review” found available by the courts in Kline and Pennsylvania Blue Shield may be obtained only upon an allegation of fraud or other misconduct inherent to the proceeding. In this sense, the review is akin to that available from common law arbitration. 42 Pa.C.S. § 7341 provides as follows:

§ 7341. Common law arbitration
The award of an arbitrator in a nonjudicial arbitration which is not subject to Subchapter A (relating to statutory arbitration) ... is binding and may not be vacated or modified unless it is clearly shown that a party was denied a hearing or that fraud, misconduct, corruption or other irregularity caused the rendition of an unjust, inequitable or unconscionable award.

Instantly, appellees’ complaint filed in the Court of Common Pleas made no allegation of “fraud, misconduct, corruption or other irregularity” in the committee proceeding and therefore should have been dismissed based on the court’s lack of subject matter jurisdiction.

Lastly, we note appellees’ argument that the Participating Doctors Agreement they executed with appellant constitutes a contract of adhesion. (Appellees’ brief at 19.) We flatly reject this claim. Initially, appellees fails to direct our attention to any case deeming a contract between professionals and an insurance association one of adhesion. Further, appellees have not demonstrated the inequality of bargaining power necessary to a contract of adhesion. See e.g., Black’s Law Dictionary, 5th ed., p. 38 (defining an adhesion contract as a “standardized contract form offered to consumers of goods and services on essentially ‘take it or leáve it’ basis.... Distinctive feature of adhesion contract is that weaker party has no realistic choice as to its terms.”) We therefore reject the claim that the agreement entered into by the parties in this case is a contract of adhesion.

Based on the foregoing, we find that parties aggrieved by an adverse determination of a professional health corporation’s dispute review committee, promulgated pursuant to 40 Pa.C.S. § 6324(c), may not seek de novo review of that determination.

Hence, we vacate the judgment entered upon the April 3, 1995 Order confirming the award of the physician arbitrators.

Judgment vacated.

Jurisdiction relinquished.

Dissenting opinion by FORD ELLIOTT, J.

FORD ELLIOTT, Judge,

dissenting.

I respectfully dissent.

As indicated by the majority, the courts of this Commonwealth have alluded that some form of judicial review is available as to disputes resolved under 40 Pa.C.S.A. § 6324. See Kline v. Pennsylvania Blue Shield, 383 Pa.Super. 347, 556 A.2d 1365 (1989), and Pennsylvania Blue Shield v. Commonwealth Department of Health, 93 Pa.Cmwlth. 1, 500 A.2d 1244 (1985), appeal denied, Com., Dept. of Health v. Pa. Blue Shield, 514 Pa. 632, 522 A.2d 560 (1987). Today, the majority limits that review to those instances where fraud or some other misconduct inherent to the in-house proceeding is alleged. I disagree with this interpretation and must respectfully dissent.

I believe that the majority has misperceived the nature and purpose of the statute at issue. The intent of the Legislature in enacting 40 Pa.C.S.A. § 6301 et seq. was to ensure access and availability of professional health services to all citizens of this Commonwéalth regardless of economic ability to pay. Within this context, the resulting statute sought to regulate the burgeoning health insurance industry. Pursuant thereto, the Legislature created a statutory scheme whereby health service plan corporations would be certified and policed. Section 6324 in particular appears to have been enacted to protect doctors from the worst potential transgressions by health service plan corporations, occurring where the corporation attempts to limit the treatment choices of participating health service doctors on the basis of economy.

This scheme is reflected in § 6324(a), which allows any doctor who complies with the approved regulations of the corporation to register with the corporation for the provision of covered medical services. This subsection also prohibits the corporation from refusing to register such doctor or from removing such doctor from the register without the approval of the Department of Health. The protective scheme is also seen in § 6324(b) which prevents the corporation from imposing any restrictions upon registered doctors as to methods of diagnosis or treatment in order to preserve the doctor/patient relationship as it ordinarily exists in the community. Finally, the protective scheme is manifested in § 6324(c) which attempts to ensure that internal disputes regarding services or ethics, between the corporation and its registered doctors, will be resolved by doctors and not by accountants or bureaucrats, who might exalt cost effectiveness over medical necessity or propriety. It seems improper to me to stand this subsection on its head and employ it to limit the rights of doctors in favor of bestowing an enormous benefit on the health service plan corporations it was meant to police. I find myself in complete agreement with the analysis of Judge Hoffer of the Cumberland County Court of Common Pleas:

The purpose of section 6324 is illustrated by its heading: ‘Rights of health service doctors.’ Subsection (a) provides that every doctor has the right to register with any professional health service corporation; the corporation may refuse to accept such only with the Department of Health’s approval. Subsection (b), entitled ‘Freedom from control,’ prohibits the corporation from infringing on the normal doctor-patient relationship, including the patient’s choice of a doctor and the doctor’s methods of treatment.
Subsection (c) provides that disputes are to be considered and determined only by health service doctors. Considering its context, its purpose seems to be similar to that of the Peer Review Protection Act, 63 P.S. § 425.1 et seq., i.e., ‘to encourage peer evaluation of the health care.... ’ Robinson v. Magovern, 83 F.R.D. 79, 87 (W.D.Pa.1979). ‘[OJnly by health service doctors’ is meant to keep laymen from deciding the disputes, not to keep doctors out of court.

RRS Imaging Associates Ltd. v. Medical Service Association of Pennsylvania, 49 Pa. D. & C.3d 339, 334-35 (1988) (emphasis added).

Nevertheless, even if I agreed with the majority as to the nature and purpose of 40 Pa.C.S.A. § 6324, I would be compelled to dissent in this case for reasons which are far more profound. Simply stated, the dispute resolution mechanism as interpreted by the majority, and as implemented by appellant, runs afoul of due process of law.

Citing Greenstein v. Commonwealth Dept. of Health, 98 Pa.Cmwlth. 445, 512 A.2d 739 (1986), appeal denied, 516 Pa. 636, 533 A.2d 94 (1987), the majority finds that the essential elements of due process are notice and the opportunity to be heard and to defend in an orderly proceeding before a tribunal with jurisdiction. The majority then quotes relevant excerpts from Pennsylvania Blue Shield’s Review Committee Guidelines and finds the notice and opportunity to be heard components of due process to be satisfied. However, I believe the majority has overlooked the most basic aspect of due process; to have any value, notice and hearing must lead to review by an impartial tribunal. The necessity for a hearing by an impartial tribunal has been recognized on both the federal and state levels. See Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972), and Lyness v. Commonwealth, State Board of Medicine, 529 Pa. 535, 605 A.2d 1204 (1992). This due process right attaches in administrative proceedings as well as in courts. Sherman v. Kaiser, 664 A.2d 221, 224 n. 4 (Pa.Cmwlth.1995). This vital aspect of due process, however, is missing instantly.

The majority has likened the review process at hand to that of arbitration. Arbitration jurisprudence demonstrates the lack of due process in the case sub judice. This court has previously ruled:

The hearing to which each party is entitled must be one that is ‘full and fair.’ Abramovich v. Pennsylvania Liquor Control Bd., supra 490 Pa. at 294, 416 A.2d at 476; Smaglio [Smaligo] v. Fireman’s Fire [Fund] Insurance Co., 432 Pa. 133, 247 A.2d 577 (1968); Mellon v. Travelers Insurance Co., 267 Pa.Super. 191, 406 A.2d 759 (1979). ‘Procedural due process requires that a fair hearing be conducted by one not involved with a party to the proceeding.’ Abramovich v. Pennsylvania Liquor Control Bd., supra citing Dussia v. Barger, 466 Pa. 152, 351 A.2d 667 (1976). See also: [James D.] Morrisey [Inc.] v. Gross Construction Co., Inc., 297 Pa.Super. 151, 159-160, 443 A.2d 344, 348-349 (1982). But cf. Morris Lapidus Associates v. Airportels, Inc., 240 Pa.Super. 80, 84, 361 A.2d 660, 663 (1976).

A hearing which comports with procedural due process must be full and fair and must be held before impartial and disinterested arbitrators. ‘Since arbitrators are generally selected to act in a quasi-judicial capacity in place of a court, they must ordinarily be impartial and nonpartisan.... ’ 5 Am.Jr.2d, Arbitration and Award, § 98.

If parties are to be encouraged to arbitrate, arbitration proceedings must be conducted with the same degree of impartiality as the courts afford. Public policy requires, therefore, that arbitrators not only be completely impartial but also that they have no connection with the parties or the dispute involved which might give the appearance of their being otherwise. Obviously a person is disqualified to act as an arbitrator if he is himself a party to the dispute. And, in the ordinary case, a close relative, servant, employee, or agent of one of the parties to the controversy, or one who has any secret interest in the result or decision thereof, may not properly act as an arbitrator.

5 Am. Jr.2d Arbitration and Award, § 99.

Donegal Insurance Co. v. Longo, 415 Pa.Super. 628, 632-633, 610 A.2d 466, 468 (1992). Furthermore, it has been held that the requirement of an impartial arbitrator is even more compelling where a party must consent to arbitration as the method of resolving disputes. See Abramovich v. Pennsylvania Liquor Control Board, 490 Pa. 290, 416 A.2d 474 (1980).

The bylaws of Pennsylvania Blue Shield make the following provisions for the selection of members of its Medical Review Committee:

Section 2. Medical Review Committee. There shall be a Medical Review Committee consisting of at least five (5) members, each of whom shall be appointed by the Chairman of the Board of Directors of the Corporation and each of whom shall serve until his successor is appointed. A majority of the members of the Medical Review Committee shall be doctors who are either members of the Board of Directors of the Corporation or members of the Corporation.

Bylaws, Article X, Section 2. It is readily apparent that the case under review presents the most egregious situation possible from a due process point of view: a party to a dispute is effectively sitting in judgment of that dispute. The “arbitrators” in this case are hand selected by the Chairman of the Board of Pennsylvania Blue Shield. Moreover, the majority of the Medical Review Committee must be comprised of other members of the Board of Directors of Pennsylvania Blue Shield or members of the Corporation. The issue in Donegal Insurance, supra, was whether a lawyer can serve as an arbitrator while he simultaneously represents one of the parties to the arbitration in an unrelated matter. We answered that the lawyer cannot so serve. I find the instant situation to be a far more flagrant abuse of the due process rights of doctors such as appellee. If, indeed, the Legislature intended the dispute review procedure described in 40 Pa.C.S.A. § 6324(c) to be a doctor’s “only bite of the apple” to recover the value of his services (except under circumstances of fraud or misconduct as the majority allows), then the review process as implemented by Pennsylvania Blue Shield fails to meet the constitutional requirements of due process of law.

I also reject the comparison of the review procedure described by § 6324(c) to that enacted pursuant to the Uniform Arbitration Act, 42 Pa.C.S.A. § 7301 et seq. Arbitration generally provides a much fairer forum. Commonly, where contracting parties have agreed to settle disputes by arbitration, each party is entitled to select one arbitrator and a third is selected by the parties’ arbitrators or by the court. This provides an impartial tribunal. Moreover, the Uniform Arbitration Act is much more detailed in establishing the parameters of that dispute resolution mechanism. Contrary to the analysis of the majority, I find no such indication that the Legislature intended to craft a similar mechanism with § 6324(c). The Uniform Arbitration Act is quite explicit in spelling out that the Legislature intended arbitration under the Act to be the only forum of review and resolution except under certain circumstances. See 42 Pa.C.S.A. §§ 7314, 7315, and 7341. When the Legislature has previously shown great care and consideration in crafting an exclusive statutory remedy, I cannot find that the Legislature evinced a similar intent in the limited language set forth in § 6324(c).

For all of these reasons, I am constrained to dissent.

      . We note appellees' implicit claim that Paragraph B19 of appellant’s "Regulations for Participating Doctors” provides a right of de novo review from an adverse committee decision. (Appellees' brief at 17.) The paragraph provides: "A Participating Doctor may seek judicial review of an unfavorable Review Committee decision to the extent permitted by Pennsylvania law.” (R. 35a.) However, in light of our determination that only a limited review for fraud or misconduct is "permitted by Pennsylvania law”, we reject appellees' assertion.

      . As noted, we have found no appellate cases adjudicating this issue. However, a line of common pleas cases are precisely on point. For instance, in V.J. Hajjar Associates, Inc. v. Medical Service Association of Pennsylvania, 15 D. & C.3d 251 (1980), participating Blue Shield physicians sought de novo review from an adverse review committee decision. In holding that it must "bar plaintiffs from any judicial forum”, id. at 251, the court found that "the bylaws and regulations speak specifically to the matter involved and these contractual agreements along with the statutory requirements impose an exclusive remedy for settling these disputes,” id. at 254. In Emergency Medical Associates, Ltd. v. Pennsylvania Blue Shield, 70 Del. 538 (1983), the court explicitly relied on Hajjar for its conclusion that "the dispute provision of the Blue Shield Regulatory Act mandates the exclusive remedy available to Blue Shield and its participating doctors and all controversies arising out of the contractual relationship.... We hold that plaintiff is statutorily and contractually limited to this remedy, being reviewed by the Medical Review Committee, and we therefore conclude that the court properly sustained defendant’s preliminary objections and dismissed plaintiff’s complaint.” Id. at 543. Finally, in Carlisle Pediatric Center v. Medical Services Association of Pennsylvania, 40 D. & C.3d 250 (1986), the Court of Common Pleas of Cumberland County explicitly relied on Hajjar, and Emergency Medical Associates in granting Blue Shield’s preliminary objections and dismissing plaintiff’s complaint, which sought review of a Medical Review Committee decision. On the contrary, it appears that one Common Pleas case, R.R.S. Imaging Associates v. Medical Service Association, 49 D. & C.3d 339 (1988), has interpreted section 6324(c) as not mandating an exclusive forum for these disputes. For the reasons suggested above, we find the former cases suggest the wiser course. We also reject appellees’ attempt to distinguish the former cases because of their equitable nature. Our conclusion herein that the Court of Common Pleas lacked subject matter jurisdiction renders it an improper forum for appellees’ action, whether the court is sitting at law or in equity. See Hajjar, supra at 251, 259-260 ("We must not only decline to entertain equity jurisdiction in this case, but we must also bar plaintiffs from any judicial forum.... [T]he above discussion obviously proscribes not only equity jurisdiction but any access to the courts.”).

      . For a scholarly opinion rejecting precisely the claim raised by appellees herein, see Hajjar, supra at 256-259. (The court notes, “the contract before us simply does not fit this pattern. No case has been called to our attention nor have we been able to find any involving contractual relationships between professional service providers and insurance associations of the type here involved. It is certainly debatable whether in fact Blue Shield is in a grossly superior bargaining position. Many dentists are not participating members and there is nothing to indicate that any particular economic hardship would result from not participating. Perhaps most importantly, the provision under attack, i.e., compulsory arbitration of disputes within the association, does not suggest any inherent unfairness to plaintiffs.”)

      . While the Guidelines do appear to provide for notice, an opportunity to be heard, a right to counsel, and a right to present evidence, the statute requires review procedures to be contained in the corporate bylaws. However, the bylaws of Pennsylvania Blue Shield appear to provide for notice, the right to counsel, the right to call witnesses and present evidence, as well as other rights, only in disputes where the doctor’s status as a participating (registered) doctor is at issue. As to other types of disputes, the bylaws make no such due process guarantees. The instant review process is thus flawed in this respect also.


author: POPOVICH, Judge:

text:
    679 A.2d 814
    Dolores Jean GRIEVE, Appellee v. David Michael MANKEY, Appellant.
    Superior Court of Pennsylvania.
    Argued May 1, 1996.
    Filed July 1, 1996.

      Robert L. Garber, Pittsburgh, for appellant.
    Henry E. Rea, Jr., Pittsburgh, for appellee.
    Before POPOVICH, EAKIN and HESTER, JJ.
   POPOVICH, Judge:

The appellant, David Michael Mankey, appeals the order of the Court of Common Pleas of Allegheny County (per Mulligan, J.) awarding a fifty percent interest in his Public School Employees Retirement System (PSERS) pension to the appellee, Dolores Jean Grieve. We affirm.

The record is clear that the parties, after a marriage of twenty-three years, were divorced in 1985. Thereafter, in a bi-furcated proceeding, marital property was distributed pursuant to an order providing for the equitable distribution of the PSERS pension in Paragraph 3, which read:

The parties have agreed to equally divide [sic ] any rights of David Michael Mankey in the pension program of the School District of the City of Pittsburgh. To that end, the parties will sign whatever documents may be required to provide for the equal division of this pension. This Court will sign whatever Order is necessary to implement this provision. The division of the pension shall be from the date of its inception until June 30, 1986.

However, at the time the December 15, 1986, order was issued, PSERS would not accept a Qualified Domestic Relations Order (QDRO). Nonetheless, the parties consented to the 1986 pension order. On April 29, 1994, the Legislature promulgated Act 29 authorizing PSERS to accept QDROs involving a participant’s benefits. This prompted the appellee to file a petition seeking court issuance of a QDRO regarding the appellant’s pension in PSERS. Following a hearing, the court entered an order directing PSERS to honor the appellee’s rights in the appellant’s pension as set forth in the 1986 order, i.e., the appellee is to receive one-half of the appellant’s accrued retirement benefits, payable as of June 30, 1986. This appeal ensued.

On appeal, the appellant questions “whether Act 29 is being impermissibly applied retroactively to June 30,1986, being the effective valuation date ... or ... is merely a procedural mechanism [t]o enfore[e] the terms of the parties’ Agreement.” Appellant’s Brief at 5. More specifically, it is the appellant’s contention that, since Act 29 applies to the property settlement agreement “entered on or after its effective date” (April 29, 1994), the court’s retroactive application of Act 29 creates a substantive right (appellee’s right to one-half of appellant’s pension) which did not exist on June 30, 1986, under 24 Pa.C.S.A. § 8533 (State pension exempt from any process whatsoever). We disagree and look to Graham v. Graham, 396 Pa.Super. 166, 578 A.2d 459 (1990), for direction.

In Graham, the husband contested the court’s award of 40.17% of his Pennsylvania State Employees Retirement Plan pension to his wife, as part of her share of the equitable distribution of marital property, on grounds that “provisions in the act [24 Pa.C.S.A. § 8533] governing retirement for school employees preclude attachment.” We disagreed and wrote:

... husband contends that the legislature’s intent was clear in its all-inclusive statement in 24 Pa.C.S. § 8533 that the pensions are “exempt from levy and sale, garnishment, attachment or any other process whatsoever.”

We find husband’s argument to be without merit. First, the Divorce Code subsequently was amended on February 12, 1988, after enactment of 24 Pa.C.S. § 8533. 23 P.S. § 401 was inserted, including subsection (k), governing remedies for failure to comply with an order of equitable distribution. It provides in pertinent part:

(k) If, at any time, a party has failed to comply with an order of equitable distribution, as provided for in this section ... after hearing, the court may, in addition to any other remedy available under the act, in order to effect compliance with its order:
1) enter judgment;
2) authorize the taking and seizure of the goods and chattels and collection of the rents and profits of the real and personal tangible and intangible property of the party;
3) award interest on unpaid installments;
4) order and direct the transfer or sale of any property required in order to comply with the court’s order;
5) require security to insure future payments in compliance with the court’s order[.]

We conclude that this is a clear subsequent expression of intent by the legislature directly contrary to the position and interpretation advocated by husband. Even though it addresses enforcement rather than entry of orders for equitable distribution, 23 P.S. § 401 contemplates attachment of pensions.

Second, we determine that the resolution of the issue raised by husband is indeed dictated by the supreme court’s holding in Young v. Young, [507 Pa. 40, 488 A.2d 264 (1985) ]. The supreme court set forth two reasons why it did not perceive the legislature as intending to exclude state or municipal pensions from equitable distribution. The court stated:

[First], “Retirement funds ... are created for the protection not only of the employee, but for the protection of his family as well. Hence, the provisions exempting assignments and attachments contained therein are to relieve the person exempted from the pressure of claims that are hostile to his and to his dependents’ essential needs”, citing Fowler v. Fowler, 116 N.H. 446, 362 A.2d 204, 205, 93 A.L.R.3d 705 (1976).
[Second], we note that a family loses its ability to spend a portion of its income when that income is deferred and placed in a pension. It would be terribly unfair to read an exemption statute, which was created to protect a pension for the benefit of a retired employee’s family, in such a way that the exemption would bar children or a former spouse from receiving support from the very fund created for their benefit, and would once again deny them the benefits of the income they sacrificed to a pension years before.

Id., 507 Pa. at 47-50, 488 A.2d at 267-269 (emphasis added).

We conclude that both the supreme court’s reasons apply to the instant ease. Finally, we note that the supreme court’s reversal of Young specifically concerned whether a court could attach a pension in an order of equitable distribution. Consequently, we conclude that the supreme court has spoken directly on this issue raised by husband when it reversed this court in Young and that we are bound to follow that precedent and reasoning in this instant appeal. Accord Ciliberti v. Ciliberti, 374 Pa.Super. 228, 542 A.2d 580 (1988); Vaughn v. Vaughn, 370 Pa.Super. 333, 536 A.2d 431 (1988).

396 Pa.Super. at 168-70, 171, 578 A.2d at 460, 461 (Emphasis in original; footnote omitted).

In accordance with the precepts espoused in Graham, we hold that the Legislature expressed its intention with the enactment of 23 P.S. § 401(k) to allow “attachment of pensions” to satisfy an order of equitable distribution. Therefore, carrying the logic of Young v. Young, 507 Pa. 40, 488 A.2d 264 (1985), and Graham one step farther (i.e., from attachment of a pension to enforcement of a consent order distributing a pension upon pay status), we find that the December 15, 1986, order assigning the appellee rights to the appellant’s pension was valid. The reason for so holding is that the order created an interest (50% share) subjéct to division with the appellant’s acceptance of payment in the future. Therefore, issuance of the QDRO by the court merely implemented (and did not create retroactive) substantive rights relinquished by the appellant to pay 50% of his pension as part of the property settlement agreement of 1986. Stated otherwise, the court’s order directing a QDRO does not affect either party’s substantive rights. Rather, a procedural mechanism (via Act 29) is being implemented to effectuate entitlement to that which the parties had consented to in 1986.

Order affirmed.

      . 24 Pa.C.S.A. § 8533 provided:
      (a) General rule — Except as provided in subsection (b), the right of a person to a member’s annuity, a State annuity, or retirement allowance, to the return of contributions, any benefit or right accrued or accruing to any person under the provision of this part, and the moneys in the fund are hereby exempt from levy and sale, garnishment, attachment, or any other process whatsoever, and shall be assignable.

      . 24 Pa.C.S.A. § 8533.1.

      . The appealed order of court dated September 8, 1995, reads:
      AND NOW, this 8th day of September, 1995, after hearing on Plaintiff's Petition to enforce settlement agreement, it is hereby ORDERED that Plaintiff's Petition is granted.
      Plaintiff shall prepare a Domestic Relations Order which provides for the following, inter alia:

      a. The portion of the retirement benefits to be assigned to wife shall be one half of the member's accrued benefit payable as of June 30, 1986;
      b. Wife shall be named beneficiary of any death benefits payable by PSERS to the extent of her equitable distribution portion;
      c. If husband elects special option 4, then wife shall receive joint survivor annuity to the extent of her equitable distribution portion. However, husband shall not be required to elect special option 4.
      Plaintiff shall, upon notice to Defendant, present the Domestic Relations Order to the undersigned in motions court.

      . The appellant's argument appears to be one in which the inability of the appellee to invade the PSERS fund in 1986 to collect (immediately) on the December 15, 1986, court order awarding her a 50% share of ■ the appellant’s pension (because of the exempt status of PSERS to attachments, levy, etc.) gave her nothing under the court’s order. As a result, postulates the appellant, enforcement of the December 15th order now by means of Act 29 would be giving retroactive effect to a nullity. See Watrel v. Commonwealth, 513 Pa. 61, 518 A.2d 1158 (1986). We do not agree.
      First, the parties agreed initially in 1986 that the appellee would be entitled to a share (an interest) in property, albeit access was not immediate and would have to await the appellant’s choice of payment schedules. Nonetheless, a right (equitable in nature) had been created in the pension on behalf of the appellee permitting the contempt powers to be used by the court if the appellant’s receipt of pension payments were withheld from the appellee. See 1980 Divorce Code, as amended. See also Graham, supra.
      Second, Act 29 merely provides the appellee the means (procedure) by which to access property (substantive) rights that had accrued as of June 30, 1986.

      . The second issue raised by the appellant is equally meritless. We find that the court’s order of distribution is consistent with Berrington v. Berrington, 534 Pa. 393, 633 A.2d 589 (1993) in that it provides the appellee with 50% of the appellant's accrued retirement benefits, payable as of June 30, 1986. There is no evidence that the appellee is receiving monies acquired subsequent to separation, which Berrington prohibits and has not been contravened here.