author: POPOVICH, Judge:

text:
    516 A.2d 1235
    Amy Lynn PATTERSON, a Minor by her Next Friend and Guardian Ad Litem, Ernestine PATTERSON v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1986.
    Filed Oct. 24, 1986.

      James F. Andrews, Jr., Pittsburgh, for appellant.
    Alfred V. Papa, Allen L. Palmer, New Castle, for appellee.
    Before BROSKY, ROWLEY and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the Court of Common Pleas of Lawrence County entering judgment in favor of the plaintiff (Amy Lynn Patterson, a minor) and against the defendant (Nationwide Mutual Insurance Co.). We affirm.

The case consists of the following undisputed facts: On October 22, 1977, Arthur Patterson was killed while driving a vehicle owned by his brother. Mr. Patterson was survived by a minor-daughter (the plaintiff) who was in the custody of his former wife. The minor-daughter was three years old at the time of the accident. As for insurance coverage, Mr. Patterson had been issued a policy by Nationwide, which policy provided him with basic personal injury protection.

No one argues that the statute of limitations for bringing suit expired four years after the accident or October 22, 1981. Nonetheless, suit was not commenced until December 9, 1983. Within one week prior to suit, however, Nationwide paid five thousand ($5,000) dollars in survivor’s loss benefits to the minor-child. Following Nationwide’s denial of the plaintiff’s claim for work loss benefits under the now repealed No-Fault Act, the plaintiff commenced the present action by filing a complaint in assumpsit to recover these benefits.

After limited discovery, the case was submitted to the lower court on briefs. On January 22, 1986, the lower court found in favor of the plaintiff in the sum of fifteen thousand ($15,000) dollars, with interest accruable at eighteen (18) percent added thereto, retroactive to December 9, 1984. Attorney’s fees were also awarded to the plaintiff’s counsel upon submission of a fee schedule to the defendant. On February 7, 1986, the appealed from order and judgment was entered. The present appeal was filed thereafter.

The first issue we shall address, which prior hereto has received limited consideration in this Commonwealth, is two-fold in that it relates to whether (a) the applicable statute of limitations was tolled, because of the plaintiffs minority, and (b) whether she can, as a result thereof, determine her entitlement to work loss benefits in her capacity as the decedent’s survivor.

As in the past, our polestar for construing the No-Fault Act has been singular in nature, i.e., to ascertain and effectuate the intention of the General Assembly. See 1 Pa.C.S. § 1921. In doing so, we have turned consistently to the provisions of the No-Fault Act itself. For example, the stated purpose for promulgating the No-Fault Act appears in 40 P.S. § 1009.102 (repealed), where it is written:

(b) Purposes. — Therefore, it is hereby declared to be the policy of the General Assembly to establish at reasonable cost to the purchaser of insurance, a Statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors of deceased victims.

Further, the same section of the No-Fault Act, under the heading of “Findings”, refers to the General Assembly’s declaration that:

(3) the maximum feasible restoration of all individuals injured and compensation of the economic losses of the survivors of all individuals killed in motor vehicle accidents on Commonwealth highways, in intrastate commerce, and in activity affecting intrastate commerce is essential to the humane and purposeful functioning of commerce.

40 P.S. § 1009.102(a)(3) (repealed). Additionally, Section 201, in pertinent part, confers the right to receive basic loss benefits to “any victim or any survivor of a deceased victim” injured in the Commonwealth. 40 P.S. § 1009.201(a) (repealed). Therefore, it is self-evident that the No-Fault Act was intended to provide recompense for “survivors” of those killed on our highways.

The nature of the compensation (“basic loss benefits”) afforded a survivor of a deceased victim, as is applicable to the case at bar, includes work loss benefits of up to $15,000. 40 P.S. § 1009.202(b) & 1009.103 (repealed). These benefits are available, as made mention of previously, to a “survivor”, which is defined to include: “(A) spouse; or (B) child, parent, brother, sister or relative dependent upon the deceased for support.” 40 P.S. § 1009.103 (repealed).

Nationwide concedes that Amy Lynn Patterson is entitled to survivor’s loss benefits — this being an extension of the common law right to damages under a wrongful death action available to the decedent’s family. Notwithstanding this, Nationwide believes that there is no rationale for extending the payment of work loss benefits to a decedent’s minor-child. Especially, as urged by Nationwide, since work loss benefits have been analogized to a common law survival action designed to compensate a decedent’s estate for the loss the insured himself suffered by having Ms earning power cut off by death. In support thereof, Nationwide cites Sachritz v. Pennsylvania Mutual Casualty Insurance Co., 500 Pa. 167, 455 A.2d 101 (1982) and States v. Insurance Co. of North America, 327 Pa.Super. 28, 474 A.2d 1156 (1984).

Albeit Sachritz and States both make reference to the correlation between work loss/survivor’s loss benefits and the common law survival/wrongful death actions, they do so in the context of a decedent’s estate seeking, inter alia, work loss benefits.

Sachritz denied the administratrix’s claim for additional no-fault benefits for failing to act timely to request the same under the relevant statute of limitations. Thus, the denial of benefits was affirmed. As for States, this Court found that, inter alia, the maximum amount of work loss benefits to decedent’s estate was correctly awarded under the controlling statute of limitations. In no instance did either case extend its holding to exclude the availability of work loss benefits to “survivors of a deceased victim.” We will not read such a ruling into the two estate cases in light of the clear and unambiguous language in Heffner v. Allstate, 491 Pa. 447, 421 A.2d 629 (1980) permitting an award of work loss benefits to survivors of a deceased victim.

On appeal to our Supreme Court, Delores Heffner, in her own right, sought reaffirmation of Superior Court’s holding awarding her benefits due her from the insurer/Allstate upon her husband’s death following a vehicular accident. The Court, as appears to have been the practice of all appellate courts when it came to claims for work loss/survivor’s loss benefits, analogized these benefits to the previously discussed common law causes of action — wrongful death/survival actions.

Further, and more importantly, the Court rejected Allstate’s assertion that the allowance of survivor’s loss and work loss benefits to the survivors of deceased victims would result in overlapping coverage and double payments. In doing so, it wrote:

... we believe that in practice, recovery of survivor’s loss and work loss benefits by survivors of deceased victims, will no more constitute double recovery under the Act than does recovery under analogous wrongful death and survival actions in tort law. See Pezzulli v. D’Ambrosia, 344 Pa. 643, 26 A.2d 659 (1942); First Nat. Bank of Meadville, Pa. v. Niagara Therapy Mfg. Corp., 229 F.Supp. 460 (W.D.Pa.1964); and Hochrein v. United States, 238 F.Supp. 317 (E.D.Pa.1965). As we view the Act, the decedent’s contribution of income under surviv- or’s loss recovery shall be excluded from the amount recovered under work loss. In this manner, both basic loss benefits will compliment, rather than duplicate each other. It must be kept in mind that the Act sets monetary limits of $15,000 for recovery of work loss benefits and $5,000 of survivor’s loss benefits. If actual losses do not reach or exceed these limits, the full amounts of these basic loss benefits need not be paid. The position taken by the Superior Court in Heffner is the most cogent approach to the No-Fault Act. The recovery of work loss benefits by survivors of deceased victims best fulfills the legislature’s express intention to provide “compensation of the economic losses of the survivors of all individuals killed in motor vehicle accidents” by providing “adequate basic loss benefits [to] ... the survivors of deceased victims.”

491 Pa. at 459-60, 421 A.2d at 636 (Footnotes omitted).

Since the Heffner case was consolidated on appeal with one of an administrator of a decedent’s estate seeking the same benefits (Pontius v. United States Fidelity and Guaranty Co.), the Court had the opportunity to deny the receipt of benefits to Mrs. Heffner, in her individual capacity, while permitting an estate of the deceased victim to receive the same. It did not, and we will not debilitate the decision by doing so now. This is especially so in light of this Court’s recent en banc decision of Billman v. Pennsylvania Assigned Claims Plan, et al., 355 Pa.Super. 524, 513 A.2d 1046 (1986).

In the first portion of Billman, this Court denied an administratrix’s request for work loss benefits on the basis of the decedent’s failure to be insured, and, therefore, not entitled to such benefits. However, in addressing the second prong of the appellant’s request for relief, the Court did grant Mrs. Billman’s claim for work loss benefits in her capacity as a “survivor” of the decedent; viz.”

We next confront appellant’s claim to work loss benefits on behalf of herself as an alleged “survivor.”
Section 103 of the No-fault Act defines “survivor” as: “(A) spouse; or (B) child, parent, brother, sister or relative dependent upon the deceased for support.” In Allstate Insurance Company v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980), our supreme court held that survivors of deceased victims are entitled to payment of work loss benefits pursuant to the pertinent No-fault Act provisions. See Freeze v. Donegal Mutual Insurance Company, 504 Pa. 218, 222, 470 A.2d 958, 960 (1983). More specifically however, as stated in Fairbanks v. Travelers Insurance Company, 337 Pa.Super. 39, 43, 486 A.2d 469, 471 (1984), “In Heffner, our supreme court held that the surviving spouse of an insured killed in a motor vehicle accident could recover the insured’s work-loss benefits as if the insured had survived with a permanent disability and recovered them himself.” (emphasis supplied) (citation omitted). The issue of whether a survivor of a deceased uninsured is entitled to work loss benefits appears to be one of first impression.

We note that the assigned claims provision of the No-fault Act, found at section 108, include the following:

(a) General.—
(1) If this act is in effect on the date when the accident resulting in injury occurs, a victim or the survivor or survivors of a deceased victim may obtain basic benefits through the assigned claims plan established pursuant to subsection (b) of this section, if basic loss insurance:
(C) applicable to the injury cannot be identified;
(emphasis supplied). In that “basic loss benefits” consist of “allowable expense”, “replacement services loss”, “survivor’s loss”, and “work loss”, 40 P.S. § 1009.103, we are of the opinion that to parcel work loss out of the panoply of survivors’ entitlements permitted by subsection 108(a) would be to render the language of that subsection illusory. “When the words of the statute are clear and free from all ambiguity, the letter of it is not to be disregarded ...” 1 Pa.C.S. § 1921(b). This interpretation also comports with the avowed purpose of the No-fault Act, which was to provide a “system of prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors of deceased victims." 40 P.S. § 1009.102(b).
* * * * * *
Unlike an estate, however, a survivor does not “stand[ ] in the shoes of the deceased victim,” Freeze, supra, 504 Pa. at 224, 470 A.2d at 961, and therefore the decedent’s culpability should not operate to deny an inculpable survivor his or her entitlements. That is, it is not the survivor who failed to purchase the mandatory insurance coverage.
We accordingly hold that, as an alleged “survivor” of the decedent, Brian Billman, appellant is entitled to recover work loss benefits under the Pennsylvania] Assigned] C[laims] P[lan], and therefore the court below erred as a matter of law in granting appellees’ motion for summary judgment with regard to this issue.

355 Pa.Super. at 532-533 & n. 8, 513 A.2d at 1049-50 & n. 8 (Emphasis in original; footnotes omitted).

Granted, the circumstances in Billman are not a mirror image of the facts at bar. Nonetheless, we find the rationale espoused therein, especially when read in conjunction with the broad language used in Heffner, leads to the inescapable conclusion justifying the receipt of work loss benefits by the minor-child.

The minor-child, being a “survivor” as defined under the No-Fault Act, should not be denied her right to work loss benefits. To do otherwise would render ineffectual the objectives of the No-Fault Act of compensating, in an economic sense, the survivors of all individuals killed in motor vehicle accidents by the establishment of “adequate basic loss benefits” for those “survivors of deceased victims.” 40 P.S. § 1009.102(a)(3) & (b) (repealed). We find this to be quite easily deducible from Heffner and its progeny. This, of necessity, renders Nationwide’s “good faith” denial of benefits rather tenuous, and, consequently, exposes it to liability for the plaintiffs attorney’s fees for his having had to defend this matter on appeal. See Erie Insurance Exchange v. Hayes, 493 Pa. 150, 425 A.2d 419 (1981) and compare with Rago v. State Farm Mutual Automobile Insurance Co., 355 Pa.Super. 207, 513 A.2d 391 (1986).

The last issue we wish to respond to relates to whether the present action was tolled by the plaintiff’s minority. We find Bragg v. State Automobile Insurance Association, 350 Pa.Super. 257, 504 A.2d 344 (1986) to be dispositive on this point.

In Bragg, this Court, sitting en banc, was assessing the effect of a claimant’s minority on his claim for uninsured motorist benefits. We stated it this way:

... was the statute tolled due to appellant Derrick Bragg’s minority? Appellants assert that 40 P.S. § 1009.106(c)(5) clearly tolled the statute in this case. Section 106(c)(5) states:
If a person entitled to no-fault benefits is under a legal disability when the right to bring an action for the benefits first accrues, the period of his disability is not a part of the time limited for commencement of the action.
* * * * * *

Our court has held that the phrase “legal disability” in section 106(c)(5) includes disability attributable to a claimant’s minority and that the same section creates no distinction between minor claimants’ actions to recover basic no-fault benefits and actions to recover additional benefits. Salvado v. Prudential Property and Casualty Insurance Co., 287 Pa.Super. 304, 430 A.2d 297 (1981).

Section 106(c)(5)____ of the Act directs that where a claimant is under a legal disability, the period of disability shall not be included in the period within which an action is to be commenced. The intent seems clear. During legal disability the statute of limitations is tolled. The statute creates no distinction between actions to recover benefits and actions to recover additional benefits.
Id., 287 Pa.Superior Ct. at 308, 430 A.2d at 299. Therefore, we find that, following the holdings in Salvado, [supra ], Lewis [v. General Accident Group, 336 Pa.Super. 373, 485 A.2d 1128 (1984)], and Holland v. General Accident, Fire and Life Assurance Corp., Ltd., 339 Pa.Super. 433, 489 A.2d 238 (1985) ], the two year statute of limitations established by section 106(c)(1) was tolled because of Derrick Bragg’s minority.

350 Pa.Super. at 266-267, 504 A.2d at 348-49 (Footnote omitted).

Premised upon Bragg, we see no reason to deny the plaintiff (minor-child) here the tolling effect of 40 P.S. § 1009.106(c)(5) (repealed). The accident in question occurred in 1977, at which time the plaintiff was three years old. Suit was instituted six years later, in 1983, which would have made the plaintiff nine years old at the time, and, obviously, still a minor. See Maycock v. Gravely Corp., 352 Pa.Super. 421, 508 A.2d 330 (1986). Therefore, given the tolling of the statute of limitations under the No-Fault Act, we see no reason to hold the plaintiff’s complaint in assumpsit to be untimely filed as of December 9, 1983.

Judgment affirmed.

      . The Act of July 19, 1984, P.L. 489, No. 176, §§ 101-107, 40 P.S. §§ 1009.101.701, repealed by the Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984. The No-Fault Act has been replaced by the Motor Vehicle Financial Responsibility Law. The Act of February 12, 1984, P.L. 26, No. 11, § 3, effective October 1, 1984, 75 Pa.C.S. § 1701 et seq. See Jones v. The Travelers Insurance Co., 356 Pa.Super. 213, 514 A.2d 576 (1986).

      . Due to a breakdown in the machinery of the prothonotary’s office of the Court of Common Pleas of Lawrence County, i.e., the prothonotary failed to give notice to the defendant of the entry of the judgment, the defendant was not aware of the judgment until April 1, 1986. At that time, Nationwide filed promptly a notice of appeal to this Court. Neither party disputes this point, and our review of the record is not at odds with this accounting. Thus, the appeal is properly before us.

      . In their brief, appellees direct our attention to Judge Van der Voort’s plurality opinion in Smiley v. Ohio Casualty Insurance Company, 309 Pa.Super. 247, 455 A.2d 142 (1983), wherein work loss benefits were characterized as “in the nature of reimbursement to the estate of the deceased ...” Id., 309 Pa.Superior Ct. at 252, 455 A.2d at 145 (emphasis added). While this characterization is an often useful analytical construct, given the substantive context instantly before us, to abide by this construct would require that we act in utter contravention of our supreme court’s pronouncements in Allstate Insurance Company v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980), and its progeny. Appellees implicitly urge that we not recognize work loss benefits as a form of survivors’ benefits; however, as reiterated in Freeze v. Donegal Mutual Insurance Company, 504 Pa. 218, 470 A.2d 958 (1983), "In Heffner, it was decided that the right to work loss benefits is not terminated by the demise of a victim. We [our supreme court] held that ‘survivors’ of deceased victims are entitled to payment of these benefits ...” Id., 504 Pa. at 222, 470 A.2d at 960.

      . Cf. Estate of Nichols, — Pa.Cmwlth. —, —, 509 A.2d 967, 968 (1986) ("The Department of Revenue would have us hold that the personal representative of the decedent's estate is the only proper party to recover work loss benefits under the No-Fault Insurance Act. Clearly, we cannot so hold in light of the pronouncement of the Supreme Court in Heffner that survivors of deceased victims are also entitled to work loss benefits under the No-Fault Act.” (Emphasis in original)); Freeman v. Allstate Insurance Co., 309 Pa.Super. 108, 111, 454 A.2d 1106, 1107-08 (1982) (In dicta the Court stated: "The No-fault Act specifically intends the 'compensation of the economic losses of the survivors of all individuals killed,’ 40 P.S. 1009.102(a)(3) ..., and defines 'survivor' in part as the ‘spouse’, 40 P.S. 1009.103. Compare Freeze v. Donegal Mutual Insurance Co., 301 Pa.Super. 344, 447 A.2d 999 (1982), where this court en banc ... declined to rule that recovery of work loss benefits under the No-Fault Act should be limited to survivors, which ruling would have barred the right of the deceased victim's estate to recover work loss benefits." (Emphasis in original)); Daniels v. State Farm Mutual Automobile Insurance Co., 283 Pa.Super. 336, 343, 423 A.2d 1284, 1287-88 (1980) (“On April 12, 1979, we filed our opinion in Heffner v. Allstate Insurance Company [, 265 Pa.Super. 181, 401 A.2d 1160 (1979), aff'd 491 Pa. 447, 421 A.2d 629 (1980) ], holding that under the No-Fault Act, the survivor of a deceased victim is eligible for work loss benefits as well as survivor’s loss benefits. * * * Thus, our decision in Heffner did not create a new right to work loss benefits. That right existed all along.”).


source: Caselaw Access Project

author: WICKERSHAM, Judge:

license: Public Domain

text:
    516 A.2d 1241
    Robert E. TAYNTON, Jr., Administrator of the Estate of Shelly Lyn Taynton, Deceased, Appellant, v. Ralph W. DERSHAM and Sandra L. Dersham, H/W, t/d/b/a Milton Sports Center, Mark Dersham, David L. Sohmer and Uni-Marts, Inc.
    Superior Court of Pennsylvania.
    Argued April 23, 1986.
    Filed Oct. 27, 1986.
    Petition for Allowance of Appeal Denied, April 20, 1987.

      Raymond E. Ginn, Wellsboro, for appellant.
    Jonathan E. Butterfield, Williamsport, for appellees.
    Before WICKERSHAM, BROSKY and WATKINS, JJ.
   WICKERSHAM, Judge:

Robert E. Taynton, Jr. appeals from the judgment on the pleadings entered by the Court of Common Pleas of Lycoming County in favor of Uni-Marts, Inc.

Appellant is the administrator of the estate of his daughter, Shelly Lyn Taynton, who was employed by Uni-Marts, Inc., appellee herein, as a retail clerk in one of appellee’s convenience stores located in Williamsport. On the early morning of July 5, 1982, Ms. Taynton was at work in the store when she was shot and killed by David L. Sohmer. Appellant commenced this civil action by writ of summons on July 3, 1984, naming as defendants Sohmer, Uni-Marts, Inc., Ralph W. and Sandra L. Dersham, t/d/b/a Milton Sports Center (where Sohmer purchased the gun used in the shooting), and Mark Dersham (the clerk who sold the gun to Sohmer).

Appellant filed a complaint on September 17,1984 against the defendants listed above. Appellee Uni-Marts, Inc. and the Dershams filed answers containing new matter, to which appellant replied. On October 23, 1984, appellee moved for judgment on the pleadings, on the basis that under the Workmen’s Compensation Act, it was immune from suit. Appellant filed an answer to the motion. On March 1, 1985, the lower court entered an order granting judgment on the pleadings in favor of appellee, to which appellant filed this timely appeal.

Appellant raises two issues before us:

1. Is appellee, Uni-Marts, Inc., subject to tort liability under the facts of the instant case on the basis that the doctrine of “Dual Capacity” provides that the Pennsylvania Workers’ Compensation Act is not appellant’s exclusive remedy under the facts of this case?
2. Whether the exclusivity provisions of the Workers’ Compensation Act as applied to a parent and personal representative of a decedent violates Article 1, Section 11 and Article 3, Section 18 of the Pennsylvania Constitution, and the Fourteenth Amendment to the Constitution of the United States?

Brief for Appellant at 3.

Our court recently summarized our standard of review on an appeal from the granting of judgment on the pleadings:

Initially we note that to determine the propriety of awarding judgment on the pleadings, we must accept as true all well-pleaded statements of fact of the party against whom the motion is granted and consider against him only those facts that he specifically admits. West Penn Administration Inc. v. Pittsburgh National Bank, 289 Pa.Super. 460, [467], 433 A.2d 896, 900 (1981) (citations omitted); Zelik v. Daily News Publishing Co., 288 Pa.Super. 277, 431 A.2d 1046 (1981); see also Wojciechowski v. Murray, 345 Pa.Super. 138, 497 A.2d 1342 (1985). The parties cannot be deemed to admit either conclusions of law or unjustified inferences. Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979); West Penn, 289 Pa.Super. at [468], 433 A.2d at 900.
We will affirm the grant of such a motion only when the moving party’s right to succeed is certain and the case is so free from doubt that the trial would clearly be a fruitless exercise. Gallo v. J. C. Penney Casualty Insurance Co., 328 Pa.Super. 267, 476 A.2d 1322 (1984); see also Bata v. Central-Penn National Bank of Philadelphia, 423 Pa. 373, 224 A.2d 174 (1966), cert. denied, 386 U.S. 1007, 87 S.Ct. 1348, 18 L.Ed.2d 433 (1967); Wojciechowski, 345 Pa.Super. at [139], 497 A.2d at 1343. In conducting this inquiry, the court should confine its consideration to the pleadings and documents attached thereto. Gallo, 328 Pa.Super. at [270], 476 A.2d at 1324.

Jones v. Travelers Insurance Co., 356 Pa.Super. 213, 217, 514 A.2d 576, 578 (1986) (footnote omitted).

With the above standard in mind, we have carefully reviewed the record in this case, the briefs of the parties, and the applicable law, and have concluded that appellant’s second contention concerning the constitutionality of the exclusivity provisions of the Workmen’s Compensation Act, has been adequately addressed by the opinion of the Honorable Clinton W. Smith, and we see no need to address it further. While we also concur with Judge Smith’s handling of the first issue, we will address it for benefit of the bench and bar.

Appellant contends that despite its status as the decedent’s employer, appellee is subject to tort liability under the “dual capacity doctrine.” Appellant’s argument that appellee is not immune from suit by virtue of the Workmen’s Compensation Act can be briefly summarized as follows: At the time Shelly Lyn Taynton was shot and killed by David Sohmer, she was present as an employee in appellee’s convenience store. Appellant alleges that appellee breached its duty to provide adequate security to prevent violent criminal acts at its store. This duty of security was owed to employees and patrons alike. Therefore, despite the Act, appellee is liable in tort for Ms. Taynton’s death by virtue of the “dual capacity doctrine,” as recognized in Tatrai v. Presbyterian University Hospital, 497 Pa. 247, 439 A.2d 1162 (1982).

Initially, we must turn to the language of the Workmen’s Compensation Act. Section 303 of the Act, 77 P.S. § 481, provides as follows:

481. Exclusiveness of remedy; actions by and against third party; contract indemnifying third party
(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108.
(b) In the event injury or death to an employe is caused by a third party, then such employe, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to receive damages by reason thereof, may bring their action at law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action.

77 P.S. § 411(1), referred to in the above section, provides, in pertinent part, as follows:

§ 411. “Injury,” “personal injury,” and “injury arising in the course of his employment” defined
(1) The terms “injury” and “personal injury,” as used in this act, shall be construed to mean an injury to an employe, ... arising in the course of his employment and related thereto, ... and wherever death is mentioned as a cause of compensation under this act, it shall mean only death resulting from such injury and its resultant effects, and occurring within three hundred weeks after the injury. The term “injury arising in the course of his employment,” as used in this article, shall not include an injury caused by an act of a third person intended to injure the employe because of reasons personal to him, and not directed against him as an employe or because of his employment; but shall include all other injuries sustained while the employe is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer’s premises or elsewhere, and shall include all injuries caused by the condition of the premises or by the operation of the employer’s business or affairs thereon, sustained by the employe, who, though not so engaged, is injured upon the premises occupied by or under the control of the employer, or upon which the employer’s business or affairs are being carried on, the employe’s presence thereon being required by the nature of his employment.

Thus, as we can see by the above language, the Workmen’s Compensation Act provides an exclusive remedy for recovery by employees injured in the course of their employment. The purpose of the Act is to provide the sole and exclusive means of recovery for all injuries arising out of accidents occurring within the course of employment. Hartwell v. Allied Chemical Corp., 320 F.Supp. 75 (W.D.Pa.1970); aff'd, 457 F.2d 1335 (3d Cir.1972). The exclusive liability provision of the Act has obliterated the common law cause •■ of action against the employer and foreclosed the adjudication of liability on the part of the employer. Kosowan v. MDC Industries, Inc., 319 Pa.Super. 91, 465 A.2d 1069 (1983); Heckendorn v. Consolidated Rail Corp., 293 Pa.Super. 474, 439 A.2d 674 (1981), aff'd, 502 Pa. 101, 465 A.2d 609 (1983). Furthermore, the exclusivity of workmen’s compensation is not destroyed, nor does the employee acquire additional remedies, merely because the provisions of the Act fail to provide what the employee deems to be adequate or full compensation for the injuries sustained. Kline v. Arden H. Verner Co., 307 Pa.Super. 573, 453 A.2d 1035 (1982), aff'd, 503 Pa. 251, 469 A.2d 158 (1983).

It is admitted that appellee was Ms. Taynton’s employer and that she was on her employer’s premises acting in the furtherance of her employer’s business at the time of her death. There is no allegation that she was killed by Sohmer for reasons personal to her. It was simply her misfortune to be minding the store at the time Sohmer entered. As a result, the exclusive remedy provisions of section 481 apply, and appellant’s sole remedy against appellee is under the Workmen’s Compensation Act.

Under the “dual capacity doctrine,” however, an employer normally shielded from tort liability by the above exclusive remedy provisions may become liable in tort to its own employee if it occupies, in addition to its capacity as employer, a second capacity that confers upon it obligations independent of those imposed upon it as employer. Budzichowski v. Bell Telephone Co. of Pennsylvania, 503 Pa. 160, 469 A.2d 111 (1983); Kosowan v. MDC Industries, Inc., supra; Silvestri v. Strescon Industries, Inc., 312 Pa.Super. 82, 458 A.2d 246 (1983).

The dual capacity doctrine is premised on the fact that an employee retains his right to sue a third-party tortfeasor regardless of the existence of the workers’ compensation remedy. A third-party tortfeasor’s relationship to an injured worker is the same as that between any two parties to a common law suit. Thus an employer who causes injury to an employee through acts taken in a capacity outside the employment relationship is likened to a third party. The dual capacity doctrine does not abrogate the exclusivity provision. Instead, the doctrine construes the employer in his second capacity to be “someone other than the employer” for the purposes of the act. The duty of care owed by the employer in his second capacity is viewed as a duty external to the employer-employee relationship. The purpose of workers’ compensation is to compensate only for losses resulting from risks which are inherent in the employment. When, however, the risks arise from a separate and distinct relationship, such as manufacturer-consumer, the employer-employee relationship becomes coincidental. Under this theory, for example, an employer who is not subject to suit for negligence in his role as an employer may be liable for injuries arising from a separate and distinct relationship, such as manufacturer-consumer.

Comment, The Dual Capacity Doctrine: Piercing the Exclusive Remedy of Workers’ Compensation, 43 U. Pitts. L.Rev. 1013, 1017 (1982) (footnote omitted).

Appellant contends that first, by its decision in Tatrai v. Presbyterian University Hospital, supra, the majority of the Supreme Court of Pennsylvania adopted the “dual capacity doctrine,” and second, the instant case falls under that doctrine.

In Tatrai, an operating room technician became ill during working hours. Her supervisor directed that she go to the hospital emergency room for treatment. While in the emergency room, she suffered a fall due to a defective piece of equipment and sustained injuries. In holding that she could proceed in tort- against the hospital even though the Workmen’s Compensation Act appeared to bar the suit, the court stated:

The sole reason appellant went to the emergency room was for treatment of her illness. Upon her arrival to the emergency facility, Ms. Tatrai was treated as a paying patient and like any other member of the general public. Since Ms. Tatrai’s presence in the emergency room was not in furtherance of the affairs of her employer and was not required by reason of her employment, we must conclude that Workmen’s Compensation is not her exclusive remedy. There is no reason to distinguish appellant from any other member of the public injured during the course of treatment. The risk of injury which appellant suffered was a risk to which any member of the general public receiving like treatment would have been subjected. The occurrence of the injury was not made more likely by the fact of her employment.

Id. 497 Pa. at 255, 439 A.2d at 1166.

In a concurring opinion by Justice Roberts, which was joined by three other justices, the focus was not on whether the employee was within the scope of her employment at the time of the injury, but on whether the injury arose outside of the employer-employee relationship.

[W]hether appellant’s injury arose in the course of employment is irrelevant to appellant’s right to proceed in trespass and assumpsit. All that is relevant is that appellant was injured in the course of receiving treatment in appellee’s emergency room, a facility serving the general public. In holding itself out to the public as a provider of medical services, appellee hospital owed a duty to all its patients. There is no basis for distinguishing appellant, a paying customer, from any other member of the public injured during the course of treatment.

Id., 497 Pa. at 255-56, 439 A.2d at 1166 (concurring opinion by Roberts, J.).

Thus, a plurality of the court held in Tatrai that the only relevant fact was that the employee was injured in the course of receiving treatment in the hospital-employer’s emergency room, which was a facility serving the general public. Since the hospital’s emergency room owed a duty of care to all its patients, the “issue could be decided without regard to the Act.” Silvestri v. Strescon Industries, Inc., supra. Although it remains unclear from the handful of cases that have since discussed Tatrai whether the dual capacity doctrine was in fact adopted by the Tatrai court, it appears that the federal courts interpreting Pennsylvania law, and the Pennsylvania Supreme Court in Budzichowski, supra, have accepted Justice Roberts’ concurring opinion as binding. See Weldon v. Celotex Corp., 695 F.2d 67 (3d Cir.1982); Koslop v. Cabot Corp., 622 F.Supp. 222 (M.D.Pa.1985); Colombo v. Johns-Manville Corp., 601 F.Supp. 1119 (E.D.Pa.1984); Budzichowski v. Bell Telephone Co. of Pennsylvania, supra; Silvestri v. Strescon Industries, Inc., supra. But see Oyster v. Johns-Manville Corp., 568 F.Supp. 83 (E.D.Pa.1983); Kosowan v. MDC Industries, Inc., supra.

Assuming, arguendo, that Tatrai did adopt the “dual capacity doctrine,” we find that it does not apply to the facts of this case. Tatrai arose under unique circumstances in that a service provided by the hospital was used by one of its employees, causing the employee injuries. In that the service provided to the employee was not provided by the hospital in its capacity as employer, the court found that workmen’s compensation immunity did not bar a civil action.

In the instant case, the dual capacity urged upon us is that of employer/employee and store owner/patron. While we can envision a situation where appellee could have been acting in its dual capacity as store owner, such was not the case herein. There was no relationship between appellee’s activities in the marketing and sale of its goods to the general public and Ms. Taynton’s death resulting from her presence at the store as an employee at the time Sohmer entered it. Her injuries resulted from the fact that she was on the job performing her duties as a retail clerk. These are precisely the type of injuries which the legislature intended to include within the exclusive remedy provisions of the Act. Kosowan v. MDC Industries, Inc., supra.

If the decedent had returned to the store after her working hours to purchase an item, or even if she had been on duty, i.e„ working in the store, but as a paying customer, was purchasing a product from the store, this case would more closely parallel the facts of Tatrai. In either case, she would have been using the service provided by appellee, just as any other member of the public would have, and any injuries suffered as a result of that use would likely fall under the Tatrai dual capacity doctrine. But here, the decedent was not in the store as a customer, but rather solely as an employee. Appellee was not operating in a dual capacity but rather only in its capacity as employer of the decedent. Thus, its liability is circumscribed by the Act, and the lower court properly entered judgment in appellee’s favor.

Judgment affirmed.

      . David Sohmer never entered an appearance in the court below. The Dershams filed an answer and new matter and are apparently still in the suit, although appellant advises us in his brief that subsequent to this appeal, he moved that the suit against the Dershams be discontinued, but that the lower court had not yet ruled on that motion.

      . Act of June 2, 1915, P.L. 736, art. 1, § 101 et seq., as amended, 77 P.S. § 1 et seq.

       Section 411(1), (2) of this title.

       Section 27.1 of this title.

      . One federal court interpreting Pennsylvania law has noted that “Tatrai has been consistently limited to its facts.” Koslop v. Cabot Corp., 622 F.Supp. 222, 226 (M.D.Pa.1985).


author: McEWEN, Judge: KELLY, Judge,

text:
    516 A.2d 1247
    Dorothy LEICHTER, Executrix of the Estate of Leonard Leichter, Appellant, v. EASTERN REALTY COMPANY, Acme Markets, Inc., Strouse, Greenberg and Company, Cameo Stores, Inc., Peck & Peck Company, F.W. Woolworth, Paramount Photo Service, Inc., Philadelphia Savings Fund Society, Successor to Western Savings Fund Society, Dry Goods, Doubleday and Company, Evans Drug, Inc., Edison Pennsylvania Stores, Inc., Conston, Inc., Halpern’s Junior Debs, Inc., Classic Linen & Bath, Inc., Rose Shafer Candies, Inc., Fidelity Bank, Jean Madeline, Inc., Shawnee Penn of Bala Cynwyd, Inc. and the Florsheim Shoe Store Co. of Neshaminy, Appellees. Dorothy LEICHTER, Executrix of Leonard Leichter, Appellee, v. EASTERN REALTY COMPANY and Acme Market, Inc. and Strouse, Greenberg and Company and F.W. Woolworth Company and Philadelphia Savings Fund Society and Fidelity Bank and Peck & Peck Company and Associated Dry Goods Corporation t/a Lord and Taylor and Horn and Hardart Baking Company and Doubleday and Company, Inc. and R.L.W., Inc. and Blairs of Pa. Inc. and Shawnee Penn of Bala Cynwyd, and Paramount Photo Service, Inc. and Record Museum Inc. and Diamond Boys Shops Inc. and Paris Linen and Decorating Shops, Inc. and Rose Shaefer Candies, Inc. and Jean Madeline, Inc. and the Florsheim Shoe Store Co. of Bala Cynwyd, Halpren’s Junior Debs, Inc. and Classic Linen and Bath, Inc. and Bala Parkway, Ltd. d/b/a Diamonds Men’s Wear and Warnaco, Inc. and Gus Mayer Stores, Inc. and Cameo Stores, Inc. and Evans Drug, Inc. and Edison Pennsylvania Stores, Inc. and S & H Shoe Store, Inc. and Conston, Inc. Appeal of ACME MARKETS, INC.
    Superior Court of Pennsylvania.
    Argued April 1, 1986.
    Filed Oct. 31, 1986.

      Clifford E. Haines, Philadelphia, for appellant and appellee.
    John J. O’Brien, West Chester, for appellant and appellees.
    Richard A. Kolb, Philadelphia, for Strouse, appellee. Brendan Mailey, Philadelphia, for Cameo, appellee.
    Before McEWEN, OLSZEWSKI and KELLY, JJ.
   McEWEN, Judge:

We here consider cross appeals from an order which granted the motion of Acme Markets, Inc. (hereinafter referred to as appellee) for a new trial following a verdict in favor of Dorothy Leichter, Executrix of the Estate of Leonard Leichter (hereinafter referred to as appellant). We affirm.

The facts underlying this appeal are aptly summarized in the opinion of the court en banc which considered the post-verdict motions:

Plaintiff brought suit in a representative capacity as executrix of the estate of her deceased husband, who suffered a myocardial infarction as the result of being abducted from a parking lot owned by Eastern Realty Company. There is substantial agreement that on or about 8:00 p.m. on September 10, 1980, the Leichters drove to the Bala Cynwyd Shopping Center to shop at defendant Acme Supermarket. The shopping center consisted of fourteen stores, all tenants of Eastern Realty Company, Acme Markets, Inc. and the Lord & Taylor store. By agreement dated April [8, 1956], the predecessor in title to Eastern Realty Incorporated had granted to the predecessor of Acme Markets, Incorporated an easement for ingress and egress over a portion of the land and the privilege for its business invitees to park in its parking lot. These same rights were provided for Eastern’s tenants in their leasing agreements. Additionally, there was testimony establishing that the firm Strouse, Greenberg and Company as agent for Eastern managed, operated and maintained this property. It is also admitted that the Leichters, unable to find parking accommodations in Acme’s parking lot, parked their automobile in the parking area owned by Eastern. There was testimony that the area utilized by the Leichters was darkened because an overhead light was out of order. Having completed their shopping, decedent returned to the parking area to his car and it was there that he was abducted as a result of which he suffered a heart attack.

After completion of the presentation of the evidence, the trial judge (1) ruled that the principal issue in the case— whether appellee Acme Markets, as the holder of an easement for ingress and egress with a privilege to park on the land, was a “possessor” of the land — was a matter of law to be determined by the judge, and then (2) concluded that Acme was a possessor of the land. The trial judge then submitted to the jury the issues of (1) whether there was a breach of the duty which a possessor owes to a business invitee, and if so, (2) whether the breach of that duty was the proximate cause of the appellant’s injuries. The jury returned with a verdict in favor of appellant and against appellees. The court en banc, however, ruled that the trial court had erred in treating the issue as a matter of law and concluded that the jury should determine whether appellee Acme Markets was a possessor of the pertinent land. As a result, the court en banc granted the motion for a new trial that had been presented by Acme Markets.

We first consider the assertion of appellees in their cross appeal that the court en banc erred when it rejected the motion of appellee Acme Markets, Inc. for the entry of judgment n.o.v. We must be guided in our consideration of this assertion by the well established caveat that:

A judgment n.o.v. should be entered only in clear cases, and all doubts should be resolved in favor of the verdict winner. A motion for judgment n.o.v. can properly be granted only when no two minds could differ that, as a matter of law, the party failed to make out his case.

Kearns v. Clark, 343 Pa.Super. 30, 34, 493 A.2d 1358, 1360 (1985) (citations omitted). A thorough review of all of the evidence compels the conclusion that the court en banc properly rejected appellees’ motion for judgment n.o.v. since there was more than sufficient evidence upon which the jury could find that the appellee was liable. Accordingly, we affirm the decision of the court en banc rejecting appellee’s motion for judgment n.o.v.

Appellant similarly presents but one issue for our review: Where liability is premised on the duty of a “possessor” [] of land to protect business invitees from the criminal acts of third persons who come on the land, as defined by Section 344 of the Restatement (Second) of Torts,[] is the question of whether or not a business is a “possessor” and, therefore, owes a duty to business invitees, a question of law for the court where possession results from an easement of use.

We hold that the question of whether the holder of an easement is a “possessor” is a question for the fact-finder. The expectation that this rather fundamental question would be quickly addressed and even resolved by abundant appellate authority has proven false. Whether a particular issue is to be confronted as a question of law and, therefore, is one to be decided by the court, or whether it is a question of fact to be resolved by a jury, is, once the study moves beyond the routine and obvious, a most troublesome inquiry upon which there has been a dearth of decision. Although it was not the principal holding in the case, our Supreme Court did suggest some years ago that the issue of whether an easement holder is a “possessor” is a question for the fact finder. Cooper v. City of Reading, 392 Pa. 452, 140 A.2d 792 (1958). There, our Supreme Court stated:

The identity of the owner of the canal bed at anytime in the last fifty years is not divulged, nor the terms of the original easement, but the city had an easement. That is not denied; it is used continuously, and by fair inference has never been disturbed. The city possessed the ordinary power of an easement holder to secure and make safe its exercise of rights, and for that purpose to enter the bed at the spot of discharge, and make reasonable alterations or repairs. The city completely controlled the land upon which the pool was located by the manner in which it exercised its easement.

Id., 392 Pa. at 460, 140 A.2d at 796. While this statement of our Supreme Court cannot be considered a clear and firm pronouncement of principle, it lends support to our conclusion that the question of whether an easement holder exercised requisite control and possession is a determination for the fact finder and requires examination of the underlying facts as revealed by the evidence. In any event, our analysis of the issue and reflection upon the practical effect of our ruling causes us to decide that the issue of whether or not an easement holder is a “possessor” of land, presents a mixed question of law and fact which is within the province of a jury to decide — after, of course, the trial court has in careful patient expression instructed the jury upon the applicable law.

Having expressed that holding, we are compelled to the observation that, in our view, the jury is far better prepared for its task if its deliberations are aided by the orderly focus effected in special interrogatories. While the essential simplicity of the verdict of the jury — we find for the plaintiff ... or ... we find for the defendant — may have been all that was needed in eras past, a modern trial routinely involves multiple defendants or presents complex scientific theories or relies upon the testimony of technological specialists. The trial bench and bar were quick to meet these challenges and devised the procedure of special interrogatories so as to enable the jury to focus upon and resolve several issues in orderly fashion as they move towards their final verdict — and thereby demonstrate in full measure the invaluable effectiveness of the jury system.

Surely, the device of special interrogatories can be every bit as helpful to a jury in resolving issues of a more traditional nature, such as whether or not an easement holder is a “possessor” of land. The determination of “possession” and the conclusion of “control” may only result from the presentation of facts and factors that reflect (1) that the party holds an easement, and (2) the manner in which the party exercises the prerogatives of that easement. The trial court will, of course, determine whether there has been such evidence presented as is sufficient to deny an application for a non-suit. If that application is refused, it remains for the jury to determine liability, but the jury must first decide whether the easement holder was in “possession”. Only then, if the easement holder is determined to have been in possession, will the jury proceed to consider, in order, the issues of whether the easement holder breached the duties of an easement holder in possession, and, if so, whether that breach was the proximate cause of the injury sustained.

Therefore, we agree with the ruling of the court en banc that whether appellant Acme Markets was a “possessor” is a question for the jury and affirm the consequent decision of the court en banc to grant a new trial.

Order affirmed.

KELLY, J., files concurring opinion.

KELLY, Judge,

concurring:

I agree that the question of whether Acme was a “possessor” in the context of Restatement (Second) of Torts § 328E is a mixed question of law and fact. Additionally, I would find that the trial court misconstrued Section 328E. Judge Caesar determined that Acme was a possessor, “not with strict property concepts of control in mind, but rather, with a view to the facts of this case and tort concepts governing the duty one owes a business invitee.” (Caesar, J., Dissenting Opinion at 4-5). This analysis is fatally flawed. Thus, there are two reasons to affirm the grant of new trial. Not only was the question of possession one for the jury to decide, but the standard used by the trial judge to decide the issue was incorrect.

Under Restatement (Second) of Torts § 344 liability is clearly predicated upon one’s status as a possessor of land. Contrary to the trial court’s analysis {see Dissenting Opinion at 5), the economic benefit derived by a merchant, or a patron’s reason for being on the property, does not provide an independent basis for liability. Accord Leary v. Lawrence Sales Corp., 442 Pa. 389, 396, 275 A.2d 32, 35-36 (1971). It is only when possession is established that the business invitation and the purpose of the injured party’s presence on the property become relevant for purposes of determining liability under Section 344. Thus, duty does not establish possession; rather, possession establishes a duty. See Carswell v. SEPTA, 259 Pa.Super. 167, 173 n. 4, 393 A.2d 770, 773 n. 4 (1978).

“Possession,” in the context of Section 344, must be determined with reference to the applicable definition of a “possessor of land” in Section 328E. Again, contrary to the trial court’s analysis, Comment a to Section 328E does not support the proposition that property concepts are inapplicable. {See Dissenting Opinion at 8). Simply stated, the comment explains that occupation and control (physical possession), rather than title (the legal right to possession), determine possession under Section 328E. Thus, possession under Section 328E arises from occupation and control and not duty or title.

The incident giving rise to the instant case occurred on the property owned by Eastern Realty. Mr. Leichter, the deceased, was abducted as he returned to the car which he parked on Eastern Realty’s lot. Consequently, it is the degree of occupation and control exercised over Eastern’s parking lot by virtue of Acme’s easement which determines Acme’s liability under Section 344.

Professors Casner and Leach have defined easements as follows:

An easement is a nonpossessory interest in land. The possession of the land in which the easement exists is always in another. In other words, the owner of an easement has a right to use the land of another for a specified purpose, as distinguished from a right to possess that land.

Casner and Leach, Property, Ch. 32, § 8, at 1109-1110 (Little, Brown & Co. 1969) (footnote omitted). See also Restatement of Property § 450 (“An easement is an interest in land in the possession of another____”). Comment b to Section 450 states:

b. Nonpossessory interest. An easement is an interest in land in the possession of another. It is not, itself, a possessory interest. The owner of it, therefore, is not entitled to the protection which is given to those having possessory interests. The fact that the owner of an easement is not deemed to have a possessory interest in the land with respect to which it exists indicates a lesser degree of control of the land than is normally had by persons who do have possessory interests. Thus a person who has a way over the land has only such control of the land as is necessary to enable him to use his way and has no such control as to enable him to exclude others from making any use of the land which does not interfere with his.

(Emphasis added). The degree of control transferred by an easement varies with the terms of the easement and the manner in which the easement is exercised.

Although an easement is a nonpossessory interest, sufficient control may exist so as to give rise to liability as the possessor of the property under Sections 344 and 328E, supra. Thus, the trial court correctly stated, “[u]nder Pennsylvania law, the owner of an easement may be treated as a ‘possessor’ for purposes of liability. Cooper v. Reading, 392 Pa. 452, 140 A.2d 792 (1958).” (Dissenting Opinion, at 7). In Cooper, our Supreme Court reasoned:

The City completely controlled the land upon which the pool is located by the manner in which it exercised its easement. It must, therefore, be held to the duties of a ‘possessor of land’____

392 Pa. at 462, 140 A.2d at 796. (Emphasis added). However, because easements are by definition non-possessory interests, possession liability must be limited to those cases where the exercise of an easement results in significant control over the property by the easement holder. To hold otherwise would create a duty to control where no right to control exists.

Consequently, I join in the majority’s decision to grant a new trial. In this new trial the parties will have the opportunity to present testimony and argument on the issue of whether Acme’s easement was exercised in a manner so as to constitute “possession” under Section 328E. Because an easement may be exercised in a manner so as to give rise to possession liability, I agree with the majority that Acme was not entitled to a directed verdict.

      . Section 328E of the Restatement (Second) of Torts defines a possessor of land as:
      § 328E. Possessor of Land Defined
      A possessor of land is
      (a) a person who is in occupation of the land with intent to control it, or
      (b) a person who has been in occupation of land with intent to control it, if no other person has, subsequently occupied it with intent to control it, or
      (c) a person who is entitled to immediate occupation of the land, if no other person is in possession under clauses (a) or (b).

      . Section 344 of the Restatement (Second) of Torts provides:

        § 344. Business Premises Open to Public: Acts of Third Persons or Animals
      A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
      (a) discover that such acts are being done or are likely to be done, or
      (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.

      . Judge Caesar was the judge who presided at trial. After he denied Acme’s post verdict motions, the case was reviewed by an en banc panel of the Common Pleas Court. The panel reversed and granted a new trial. Judge Caesar sat on the en banc panel and filed a lengthy dissent to its decision. It is that dissenting opinion to which I refer throughout this opinion.

      . The issue of whether merchants should be required to provide private security in high crime areas was not presented by this appeal. I note that the wisdom of such a policy has been questioned. See Williams v. Cunningham Drugs, 146 Mich.App. 23, 26-27, 379 N.W.2d 458, 459-60 (1985) (duty to provide reasonable care with respect to business invitees does not include duty to provide private security guards in high crime areas). I do not believe that the parameters of a merchant’s duty of care toward business invitees have been clearly set in this Commonwealth, and I reserve comment on the issue until the issue is clearly presented and properly briefed.


author: CAVANAUGH, Judge:

text:
    516 A.2d 1252
    COMMONWEALTH of Pennsylvania, Appellee, v. Charles CAIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 2, 1986.
    Filed Oct. 31, 1986.

      John J. Fioravanti, Assistant Public Defender, Warminster, for appellant.
    Alan M. Rubenstein, District Attorney, Philadelphia, for Com., appellee.
    Before CAVANAUGH, POPOVICH and MONTGOMERY, JJ.
   CAVANAUGH, Judge:

The appellant, Charles Roy Cain, was found guilty of statutory rape, forcible rape, deviate sexual intercourse and indecent assault following a jury trial before Bortner, J. Motions in arrest of judgment and for new trial were denied. Appellant was sentenced to 7½ to 15 years imprisonment for rape and statutory rape and to 15 years imprisonment for involuntary deviate sexual intercourse and indecent assault the sentences to be served consecutively upon the expiration of the sentence for rape. An appeal was taken to this court from the judgment of sentence.

The evidence established that on April 18, 1984, two brothers, Randy and Richard, who were eight and ten years of age respectively, went fishing with the appellant at his invitation. The appellant picked the boys up after school and took them in his car to Neshaminy Creek in Warwick Township, Bucks County. The testimony of both boys established that during this fishing trip the appellant had deviate sexual intercourse with them.

On April 28, 1984 the appellant again invited the boys to go fishing at the same location. On this trip another boy, Michael, who was the cousin of Randy and Richard, also went along. When the group arrived at the fishing site the boys put up a tent. While Michael was fishing, appellant took both of the boys separately into the tent and again had deviate sexual intercourse with them. At one point the appellant threatened to kill Randy.

On May 4, 1984 the two brothers told their mother of what the appellant had done to them on April 18 and April 28, 1984. The incident was immediately reported to the police by their mother.

The appellant contends that the trial court erred in allowing Richard’s mother to testify to a statement made to her by Richard six days after the second incident occurred. Richard's mother became suspicious that something was wrong when he said he did not want to go with the appellant on another fishing trip. When his mother asked whether the appellant had abused Richard, the boy replied in the affirmative. Over objection by defense counsel, she testified at trial that Richard answered, “Yes mom. He had sex with me.” On appeal, appellant argues that the trial judge erred in allowing the mother to testify to Richard’s statement.

On cross examination defense counsel impeached Richard’s credibility. Defense counsel stressed repeatedly that Richard had gone over his story with the police on four separate occasions and with three assistant district attorneys. The implication that defense counsel obviously intended to convey was that Richard was coached in his testimony. Richard’s credibility was further placed in question when defendant testified in his own defense and described his fishing trip in detail, categorically denying that he sexually abused the two boys in any way.

Prior declarations of a witness which are consistent with his present testimony may be admitted to corroborate his testimony at trial if impugned, expressly or impliedly, as the product of recent fabrication, particularly when improper influence of the witness is implicated. See Commonwealth v. Cruz, 489 Pa. 559, 414 A.2d 1032 (1980). Commonwealth v. Clark, 355 Pa.Super. 200, 512 A.2d 1282 (1986). As noted in Commonwealth v. Gore, 262 Pa.Super. 540, 550, 396 A.2d 1302, 1307 (1978), “it is not necessary that the impeachment be explicit, i.e., that an actual allegation of recent fabrication be made, but only that a jury be able to reasonably infer that such is occurring.” See also Commonwealth v. Bailey, 322 Pa.Super. 249, 469 A.2d 604 (1983); Commonwealth v. Kjersgaard, 276 Pa.Super. 368, 419 A.2d 502 (1980).

While the defense did not expressly attack Richard’s testimony as a recent fabrication, it did so impliedly by emphasizing that the ten year old boy had gone over his testimony on numerous occasions before trial with the police and the district attorney. This, coupled with the express denial of any sexual misconduct by the appellant, could lead a jury to infer that the imaginative recollection of an impressionable youth was influenced by his contacts with conviction oriented public officials. Therefore, the testimony of his mother, relating what he said before his contacts with the police and district attorney, was admissible to rebut the inference.

We have reviewed the other issues raised by appellant in a separate Memorandum Opinion to be filed today and none of them warrant a new trial.

Judgment of sentence affirmed.

      . On cross examination by defense counsel, Richard testified as follows:
      Q. Now, on the day that you told your mother about this, you went and talked to the police?
      A. Yes.
      Q. And then a few days later you went and talked to another police officer, didn’t you?
      A. Yes.
      Q. And on June 4th you testified at the preliminary hearing, didn’t you?
      A. Yes.
      Q. And you talked to a guy by the name of Mike, the District Attorney before that hearing, didn’t you?
      A. Yes.
      Q. He went over your testimony, didn’t he?
      A. Yes.
      Q. With you?
      A. Yes.
      Q. And you talked to the Officer that day that is seated next to Jeff, didn’t you?
      A. Yes.
      Q. And on July 30th you testified again, didn’t you?
      A. Yes.
      Q. And you talked to another District Attorney, am I right?
      A. Yes.
      Q. And went over what you had told them before?
      A. Yes.
      Q. And you knew today that you were coming up here to testify, didn’t you?
      A. Yes.
      Q. You went over your testimony today with Jeff?
      A. Yes.
      Q. And, in fact, you went over yesterday too, didn’t you?
      A. Yes.

      . In Keefer v. Byers, 398 Pa. 447, 450, 159 A.2d 477, 479 (1960) the plaintiff testified concerning an automobile accident. He was cross examined in a way that suggested his version of the collision was a belated fabrication. His son was permitted to testify that the plaintiff described the accident to him at the hospital a few days after the incident and it confirmed his narrative on the witness stand. The court stated that:
      The son’s testimony qualified as a consonant statement which, although hearsay and not proof of the substantive matter it contained, was admissible for the purpose of rehabilitating the credibility of the plaintiff whose veracity, if not integrity, has been interrogatingly impugned.


author: TAMILIA, Judge:

text:
    516 A.2d 1254
    PETRUZZI’S IGA, INC. and Paul J. Petruzzi, Appellants, v. Joseph PAVLICK.
    Superior Court of Pennsylvania.
    Argued June 19, 1986.
    Filed Nov. 3, 1986.

      David L. Glassberg, Hazleton, for appellants.
    Brian C. Corcoran, Hazleton, for appellee.
    Before CIRILLO, President Judge, and CAVANAUGH and TAMILIA, JJ.
   TAMILIA, Judge:

Plaintiffs/appellants, Petruzzi’s IGA, Inc. and Paul J. Petruzzi, appeal from the Order of the lower court granting defendant/appellee’s petition to open a default judgment.

On March 7, 1985, appellants filed a complaint against appellee seeking damages which were allegedly incurred as a result of the destruction of appellants’ rental property by appellee’s negligence. On April 3, 1985, the local court granted appellee thirty days after appellant’s response to discovery before it was required to answer the complaint. Appellee obtained a court Order on July 8, 1985 ordering appellants’ attorney to turn over requested material by July 19, 1985. Following receipt of these documents, appellee deposed appellants on August 7, 1985.

Subsequently, the attorneys agreed between themselves that appellee’s answer would be due October 4, 1985. However, appellee did not receive a transcription of the deposition of appellants from the reporting service until October 2, 1985. Appellee then asked appellants for another twenty-day extension in which to prepare his answer. Appellee requested, by letter, that appellants respond to the request as promptly as possible so that in the event appellants denied the request, appellee could petition the court for an extension. Appellants denied the request by phoning appellee’s office on Friday afternoon, October 4, 1985, and leaving a message with appellee’s secretary.

On Monday, October 7, 1985, at 9:00 a.m., appellants requested, and the prothonotary granted, a default judgment based on appellee’s failure to answer. Notice by the prothonotary of the default judgment was filed at 9:02 a.m. No prior notice of the pending default was given to appellee as none was required under Pa.R.C.P. 237.1(a) because the default occurred after the specified time in a written agreement of extension. Eight minutes after the default judgment was filed, the lower court granted appellee an additional fifteen days to answer the complaint.

On October 8, 1985, appellee filed a petition to strike or open judgment. The lower court granted appellee’s motion to open the judgment, concluding the three requirements of Schultz v. Erie Insurance Exchange, 505 Pa. 90, 93, 477 A.2d 471, 472 (1984), had been met and, therefore, determined it was entitled to exercise its equitable discretion in deciding whether to open the judgment.

Our scope of review in a case such as this is very narrow. An appellate court will reverse the lower court only where there is a clear, manifest abuse of discretion or an error of law. Pappas v. Stefan, 451 Pa. 354, 304 A.2d 143 (1973).

Appellants contend the issue of opening the judgment was not properly before the court. We find no abuse where the trial judge employs equitable discretion as to the facts of a case and the allegations of the petition, to reach a conclusion. This is particularly so when notice was given on a Friday afternoon that a request to extend time to file an answer was refused, and default judgment requested was at 9:00 a.m. the following Monday morning. Further, the very title of the petition put the issue before the court.

Appellants next contend that the lower court’s conclusion is erroneous because appellant did not present a meritorious defense to the action as required by Schultz, supra. Appellee asserts that the showing of a meritorious defense is not necessary in a trespass action if the equities are otherwise clear. At the time of appellee’s petition to open judgment (10-8-85), the question, whether or not a meritorious defense needs to be alleged to open a default judgment, was in a state of flux. An amendment to the Rules of Civil Procedure had, in effect, abolished any procedural differences between actions in assumpsit and trespass. See Pa.R.C.P. 1001, effective July 1, 1984 and Wolfskill v. Egan, 350 Pa.Super. 223, 504 A.2d 326 (1986). The rule change, however, was not determined by the courts to require that a meritorious defense be alleged in trespass actions until our Court did so on January 31, 1986 with its filing of Wolfskill, supra.

By reason of Pa.R.C.P. 1001, the court, in Wolfs-kill, said:

We therefore hold that consistent with the uniformity in pleading sought by the amendments to the Rules of Civil Procedure, the requisite elements of a petition to open a default judgment must be the same regardless of whether the substantive claim lies in contract or tort.

Id., 350 Pa.Superior Ct. at 226, 504 A.2d at 328. Wolfskill is similar to the case at bar in that no meritorious defense was presented because it was assumed none was required. The Wolfskill Court reversed and remanded to give the appellee an opportunity to include a meritorious defense in his petition. In this case, appellee filed his petition to open on October 8, 1985, the day after the default judgment was entered, and explained that a delay in receiving a transcript of a deposition had resulted in his inability to form an answer to the complaint. Our independent and careful review of that petition leads us to conclude appellee did not demonstrate a legal defense could be shown even though the trial court, in his Opinion, indicated the three requirements of Schultz had been met (Slip Op. at 4). Accordingly, as in Wolfskill, we find it necessary to remand the instant case to afford appellee the opportunity to amend his petition to include such a defense. We wish to make clear this case is being remanded for an opportunity for amendment solely because of the uncertain state of the law at the time the petition was filed. Accordingly, we hold that such petitions filed in trespass actions prior to July 1, 1984 need not have included a meritorious defense, while such petitions filed after the filing date of Wolfskill, that is January 31, 1986, must allege a meritorious defense. Those petitions, like this one, falling between the two dates, should be closely reviewed and dealt with on a case by case basis.

The Order of the trial court is vacated and the case is remanded for proceedings consistent with this Opinion.

Jurisdiction relinquished.

      . Although the judge’s Order is dated October 6, 1985 (a Sunday), it is apparent and uncontradicted by the parties that the date was actually October 7, 1985, as was time-date stamped by the prothonotary.

      . The Supreme Court, in Schultz, found the following three requirements necessary to open a judgment: (1) the petition has been promptly filed; (2) a meritorious defense can be shown; and (3) the failure to appear can be excused. Schultz, 505 Pa. at 93, 477 A.2d at 472.


author: TAMILIA, Judge: CIRILLO, President Judge,

text:
    516 A.2d 1257
    COMMONWEALTH of Pennsylvania, Appellant, v. Andrew HUNSBERGER.
    Superior Court of Pennsylvania.
    Argued June 17, 1986.
    Filed Nov. 3, 1986.

      Stephen B. Harris, Assistant District Attorney, Warring-ton, for Com., appellant.
    Robert W. Suter, Assistant Public Defender, Doylestown, for appellee.

      Before CIRILLO, President Judge, and CAVANAUGH and TAMILIA, JJ.
   TAMILIA, Judge:

A complaint was filed against appellee charging him with first degree murder in the death of his mother, Carol Hunsberger. Subsequently, trial counsel for appellee filed notice of appellee’s plans to assert the insanity and mental infirmity defense. After a pre-trial suppression hearing, the lower court granted appellee’s omnibus pre-trial motion to suppress certain statements voluntarily uttered by the appellee after Miranda warnings and his request for counsel were made, but before appellee’s first meeting with counsel. The matter before this Court is the appellant’s interlocutory appeal from the suppression Order.

Appellee claims that the Commonwealth has failed to assert jurisdictional grounds for this appeal and that the Commonwealth must demonstrate that the evidence suppressed by the trial court substantially handicaps the Commonwealth’s prosecution of this case. We disagree. As this Court stated in Commonwealth v. Benjamin, 346 Pa.Super. 116, 121-122, 499 A.2d 337, 339 (1985):

In Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985), our Supreme Court held that the Commonwealth’s appeal from a suppression order was proper as long as the Commonwealth certified in good faith that the order either ‘terminates’ or ‘substantially handicaps’ the prosecution. The good faith certification is a precaution to meritless appeals designed solely for delay. It is no longer necessary for this Court to make an independant determination from the record whether the suppression order ‘terminates’ or ‘substantially handicaps’ the prosecution.

Since the certification requirement has been satisfied, we find that the Commonwealth has an absolute right of appeal to this Court to test the validity of the pre-trial suppression Order.

Our standard of review in an appeal from a suppression Order is limited to determining whether the factual findings of the suppression court are supported by the record and whether the legal conclusions drawn therefrom are in error. Commonwealth v. Webb, 491 Pa. 329, 334, 421 A.2d 161, 163 (1980); Commonwealth v. Hubble, 318 Pa.Super. 76, 78, 464 A.2d 1236, 1237 (1983).

The parties stipulated that the statements suppressed were made voluntarily by the appellee after he was read Miranda warnings, had answered that he wished to remain silent, and had answered that he wanted an attorney present during questioning. After the appellee’s response to the Miranda warnings was made, the appellee was not subjected to further questioning. The appellant has conceded that those remarks made by appellee immediately following the administration of Miranda warnings concerning his desire to speak to an attorney were inadmissible. However, the appellant maintains that the court below erred in suppressing the following statements:

1. The appellee’s question to First District Attorney Alan Rubenstein after being advised that he would be able to receive a public defender, “Are public defenders as good as money lawyers?”;
2. The appellee’s question to District Justice Kathryn Stump at the time of his preliminary arraignment in which he asked, “How can I get to see the public defender on the sixth floor of the courthouse if I am in jail?”; and
3. The appellee’s question to Deputy District Attorney Rea Mabon when she approached him in the Dublin Barracks of the Pennsylvania State Police as to whether she was his lawyer, and when she replied in the negative, his statement that he did not want to speak to her.

The importance of the statements becomes apparent when viewed in light of the appellee’s raising the insanity defense and the subsequent burden this places on the Commonwealth to prove the appellee’s sanity beyond a reasonable doubt. Commonwealth v. Bruno, 466 Pa. 245, 352 A.2d 40 (1976). The Commonwealth asserts that the statements are highly probative of the appellee’s state of mind immediately following the crime.

Appellant claims that because the statements in question were made voluntarily by the appellee after his arrest and after Miranda warnings were administered, no violation of appellee’s constitutional rights would occur if the statements were admitted at trial. We find we must disagree with appellant and affirm the lower court’s suppression of the statements to avoid infringing appellee’s fifth Amendment protection against compelled self-incrimination which provides the right to counsel during custodial interrogation. Commonwealth v. Hackney, 353 Pa.Super. 552, 558, 510 A.2d 800, 803 (1986).

In Doyle v. Ohio, 426 U.S. 610, 611, 96 S.Ct. 2240, 2241-42, 49 L.Ed.2d 91 (1976), the United States Supreme Court held that silence in the wake of Miranda warnings may be nothing more than the arrestee’s exercise of his Miranda rights and that because such silence is “insolubly ambiguous”, it cannot be used for impeachment purposes at trial. It is the implicit assurance the Miranda warnings carry, “that silence will carry no penalty”, which is the source of the Doyle Court’s holding that use of an arrestee’s silence is fundamentally unfair and therefore violates the Due Process Clause of the Fourteenth Amendment. Id. at 618, 96 S.Ct. at 2245, 49 L.Ed.2d at 422. Recently, the Supreme Court has held that it is fundamentally unfair for the prosecution to use a defendant’s post-arrest and post-Miranda warnings silence as evidence of his sanity. Wainwright v. Greenfield, 474 U.S. 284, ——, 106 S.Ct. 634, 640-41, 88 L.Ed.2d 623, 632 (1986).

In Wainwright, the Court ruled that the Doyle due process rationale applies to an insanity defense situation in which the prosecution attempts to use the post-arrest and post-Miranda warnings silence as affirmative proof of sanity in the case in chief. Id. at —, 106 S.Ct. at 638-39, 88 L.Ed.2d at 630. The Wainwright Court stated that the fundamental unfairness found to exist in Doyle, that a promise that silence will not be used against an arrestee and the subsequent breach of that promise by using silence to impeach his trial testimony, exists when a breach of that promise is used to overcome the insanity defense. Id. at —, 106 S.Ct. at 639-40, 88 L.Ed.2d at 631. The significance of the majority Opinion in Wainwright does not rest solely on the Supreme Court’s application of the Doyle due process rationale to the prosecution’s use of an arrestee’s silence as proof of sanity, but also rests on the Court’s comment that an arrestee’s constitutional right to consult counsel cannot be used against him after assurance by the state that his exercise of that right will not be so used. Id. at —, 106 S.Ct. at 640-41, 88 L.Ed.2d at 632. The Wainwright court stated that:

[T]he State’s legitimate interest in proving that the defendant’s behavior appeared to be rational at the time of his arrest could have been served by carefully framed questions that avoided any mention of the defendant’s exercise of his constitutional rights to remain silent and to consult counsel. What is impermissible is the evidentiary use of an individual’s exercise of his constitutional rights after the State’s assurance that the invocation of those rights will not be penalized. Id. (Emphasis added)

Therefore, we find that the Court should suppress post-arrest and post-Miranda warnings statements made by the appellee concerning his right to counsel and questioning the meaning of his Miranda rights.

The cases relied upon by the appellant are distinguishable from the present case because they do not deal with post-Miranda statements by an arrestee concerning his right to counsel, but instead deal with voluntary statements concerning the commission of the crime in question. For example, Commonwealth v. Hubble, 509 Pa. 497, 514, 504 A.2d 168, 174 (1986), involved self-incriminating statements pertaining to the crime itself, voluntarily given by the defendant after a written waiver of his Miranda rights, not statements concerning the defendant’s right to counsel. Appellant quoted the Hubble court as stating:

To hold that every utterance of the word ‘lawyer’ automatically erects the Edwards ‘cone of silence’ around the accused, thus insulating him from all further police-initiated questioning and communication, would be far too rigid and would not serve the interests or needs of justice.

Id., 509 Pa. at 511, 504 A.2d at 173. Use by appellant of the above quoted comment and its referral to Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), reh’g denied, 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984 (1981), is inapposite to this case as the issue in Hubble, supra, was whether the accused had invoked his right to counsel before making inculpatory statements, not whether the statements made by the accused were an effort on his part to understand the meaning of his right to counsel. As we have stated, it was stipulated by appellant that appellee invoked his right to counsel.

For the above stated reasons, we affirm the suppression Order entered by the lower court.

Order affirmed.

CIRILLO, President Judge, files a dissenting opinion.

CIRILLO, President Judge,

dissenting:

I respectfully dissent.

It is well settled that upon arrest, the police must inform an accused person of his rights. In order to protect the suspect’s privilege against self-incrimination, the police must tell him that he has a right to remain silent, that any statement he does make may be used as evidence against him and that he has a right to the presence of an attorney either retained or appointed. Miranda v. Arizona, 384 U.S. 436, 467-73, 86 S.Ct. 1602, 1624-27, 16 L.Ed.2d 694 (1966).

The Supreme Court has also emphasized that the police may not question the accused if he indicates that he wishes to speak to an attorney. Nor can they question him if he states that he does not want to be interrogated. Id. at 470-73, 86 S.Ct. at 1625-27. If the police violate these procedural safeguards, any statements they have obtained will be inadmissible at trial. Id. at 475, 86 S.Ct. at 1628.

However, Miranda applies only to statements made as a result of police interrogation. Any statement spontaneously volunteered by an accused is admissible even if he has previously asserted his Miranda rights. Commonwealth v. Scarborough, 491 Pa. 300, 313, 421 A.2d 147, 153 (1980); Commonwealth v. Myers, 481 Pa. 217, 392 A.2d 685 (1978).

In the instant case, both parties have stipulated that the statements in question were voluntary, spontaneous utterances and were not made in response to police interrogation. Therefore, the accused’s statements should be admissible. However, the appellee contends that the recent case of Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 639, 88 L.Ed.2d 623 (1986) compels a different result. However, the facts in this case are totally dissimilar from those of Wainwright. Also, the rationale used by the Wainwright Court does not apply to the situation before us. In fact, by virtue of its holding today, this panel establishes a dangerous precedent which is sure to confuse and hamstring law enforcement officials and trial courts in the pursuit of their duties.

As noted above, under Miranda and its progeny, the general rule is that voluntary, spontaneous statements are admissible at trial even if an accused has stated that he intends to remain silent. In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Court held that silence cannot be used against an accused. In Wainwright, the Court interpreted its Doyle holding as preventing use of an accused’s silence to show that he was not insane at the time of the crime.

In Wainwright, the Court, per Justice Stevens, stated: “With respect to post-Miranda warnings ‘silence,’ we point out that silence does not mean only muteness; it includes the statement of a desire to remain silent, as well as of a desire to remain silent until an attorney has been consulted.” Id. 474 at —, 106 S.Ct. at 640-41, 88 L.Ed.2d at 632 n. 4b.

Justice Stevens provided two rationales to support the Court’s holding. He stated that the use of a defendant’s silence is fundamentally unfair because it violates an implied promise by the government. Justice Stevens wrote that:

Miranda warnings contain an implied promise, rooted in the Constitution that ‘silence will carry no penalty.’ Our conclusion [is] that it [is] fundamentally unfair ... to breach that promise by using the defendant’s post-arrest, post-Miranda warnings silence ... as evidence of his sanity.

Id. at —, 106 S.Ct. at 641, 88 L.Ed.2d at 632. (Citations omitted).

The Court also noted that silence is “insolubly ambiguous” and thus its probative value is outweighed by the “fundamental unfairness that flows from the State’s breach of its implied assurances.” Id. at —, —, 106 S.Ct. at 640, 88 L.Ed.2d at 631-32. The Court quoted the Florida Supreme Court’s view of the probative value of silence in an insanity context.

Post-arrest, post-Miranda silence is deemed to have dubious probative value by reason of the many and ambiguous explanations for such silence.... For example, one could reasonably conclude that custodial interrogation might intimidate a mentally unstable person to silence. Likewise, an emotionally disturbed person could be reasonably thought to rely on the assurances given during a Miranda warning and thereafter choose to remain silent. In sum, just what induces post-arrest, post-Miranda silence remains ... a mystery.... Silence in the face of accusation is an enigma....

Wainwright, 474 U.S. at —n. 11, 106 S.Ct. at 640 n. 11, 88 L.Ed.2d at 631-32 n. 11 (citations omitted), (quoting State v. Burwick, 442 So.2d 944, 948 (Fla.1983)).

Based upon the foregoing rationales, the Wainwright Court carved out a limited exception to the general admissibility of voluntary, spontaneous statements. This exception applies to “the statement of a desire to remain silent, as well as a statement of a desire to remain silent until an attorney has been consulted.” Wainwright, 474 U.S. at —, 106 S.Ct. at 640-41, 88 L.Ed.2d at 632 n. 4b. Appellee’s statements went far beyond the parameters of these limited exceptions. He questioned the quality of public defenders, whether a particular individual was his attorney, and whether consultation with his attorney would be logistically possible. These rather complex inquiries bear little resemblance to the Wainwright exceptions. Appellee’s question concerning the quality of public defenders cannot possibly be interpreted as a “statement of a desire to remain silent.” Id.

Nor do the Wainwright rationales support extending that case’s holding to include situations such as this. Justice Stevens stated that use of a defendant’s silence is fundamentally unfair because it violates an implied promise by the government that silence will cause no penalty. Id. at —, 106 S.Ct. at 640-41, 88 L.Ed.2d at 632. However, the government has made no implied promise that the defendant is entitled to do anything but remain silent or indicate that he intends to exercise his right to do so. Any other statements made by an accused are made at his own risk. The Wainwright Court’s decision was logical because if an accused wishes to see an attorney he must somehow communicate that desire. A suspect’s right to remain silent until counsel arrives would be totally meaningless if he could not communicate his wishes without fear of self-incrimination. A right which cannot be exercised without penalty protects no one. However, an accused can effectively exercise his right to counsel without questioning the police about the entire nature of the attorney-client relationship. The accused has no constitutional right to demand that the police engage in a comparative analysis of attorney qualifications. Nor does he have a constitutional right to a logistical explanation of how and when he will meet with his attorney. Nor does he have a constitutional right to inquire into the background of each person who passes by while he’s waiting in the stationhouse.

An accused’s statements do not receive constitutional protection because they include a reference to lawyers. As the Pennsylvania Supreme Court has stated:

To hold that every utterance of the word “lawyer” automatically erects [a] 'cone of silence’ around the accused ... would be far too rigid and would not serve the interests or needs of justice.

Commonwealth v. Hubble, 509 Pa. 497, 511, 504 A.2d 168, 175 (1986).

The majority correctly notes that Hubble is not controlling of the instant case but it certainly is instructive. The Hubble Court recognized that there is no constitutional principle affording protection to all statements containing the word lawyer. Reduced to its bare essentials, that is the very argument made by the appellee. He has demonstrated no other reason why his statements should receive constitutional protection. They were not an invocation of his right to counsel nor were they necessary for the effective exercise of that right. Appellee’s statements were nothing more than inquiries into the attorney-client relationship. This Court has today recognized a constitutional right to investigate your attorney’s background and qualifications. I doubt that Justice Stevens intended such an expansive interpretation when he wrote that “silence does not mean only muteness.” In the future, Pennsylvania law enforcement officials and trial judges will have little idea as to when an accused’s statements shed the cloak of silence and lose constitutional protection. If “silence” includes questioning of whether a public defender is as qualified as a private attorney, does it also include inquiries into the attorney’s law school background, class rank, professional honors, publications and income? Denying an accused constitutional protection for these types of statements hardly rises to the level of fundamental unfairness cited by the Wainwright Court.

Nor were appellee’s statements “insolubly ambiguous”. There is no ambiguity in a straightforward inquiry into the qualifications of the public defender. Appellee’s statement exhibits concern over whether he will receive effective representation. Though this is certainly not conclusive proof of sanity, it demonstrates coherent, rational thought and is highly relevant where the plea is based on insanity.

The Miranda Court intended to safeguard the right of innocent persons. Towards that end, the Court afforded accused persons a two-pronged protection. The Court required that police inform suspects of their constitutional rights and the court protected arrestees from coercive police techniques. It is often forgotten that in Miranda, the indigent Mexican defendant was seriously disturbed and was never informed of his rights. Yet, the prosecution miraculously produced a typed and signed confession stating that he understood his rights and had voluntarily waived them. This voluntary waiver occurred after a long period of isolation in a special police interrogation room. The Court’s decision was in reaction to this obvious abuse of police power.

The Miranda Court also catalogued some of the techniques used by police to coerce confessions from suspects. Miranda 384 U.S. at 446-455, 86 S.Ct. at 1613-18. The Court noted that police had sometimes used “physical brutality — beating, hanging, whipping ... in order to extort confessions.” Id. at 446, 86 S.Ct. at 1613. The Court also discussed the use of isolation, legal misstatements and trick line-ups. The Court described these psychological pressures as “[psychological] intimidation ... destructive of human dignity.” Id. at 457, 86 S.Ct. at 1619. However, appellee admits that his statements were not coerced and the record does not contain even a hint of psychological intimidation by the police. Also, appellee's own statements show that he understood his rights. He questioned whether the public defender was as qualified as a private attorney and where he could meet with his attorney. These are not the statements of a person who does not realize that he has the right to an attorney. Appellee’s questions show that he not only understood his rights but was busy scheming as to the best way to utilize them.

The Miranda Court was careful to note that “[a]ny statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence.” Id. at 478, 86 S.Ct. at 1630. The Court did not intend to turn law enforcement into a contest of technicalities. The Court wished only to protect innocent persons against the evils enumerated above. In the ensuing years, courts have lost sight of the policies underlying Miranda. Some decisions have forced law enforcement officials to battle the very legal system they are supposed to serve in order to convict guilty offenders. I am saddened to say that today’s decision by this panel continues this unfortunate distortion of Miranda. Appellee admits that he is guilty as charged and that the statements in question were voluntarily made, yet, this panel requires those statements be held inadmissible.

The Miranda Court stated that it did not wish to “constitute an undue interference with a proper system of law enforcement.” Id. at 481, 86 S.Ct. at 1631. Unfortunately, today’s decision cannot help doing just that. It is a completely unwarranted deviation from the long-standing principle that voluntary statements are admissible.

Accordingly, I must dissent.

      . Miranda v. Arizona, 384 U.S. 436, 467-73, 86 S.Ct. 1602, 1624-27, 16 L.Ed.2d 694 (1966).