author: MONTEMURO, Judge:

text:
    588 A.2d 22
    Chester PAPPAS v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1990.
    Filed Feb. 25, 1991.

      Edward A. Monsky, Scranton, for appellant.
    Joseph J. Terrana, Wilkes-Barre, for appellee.
    Before MONTEMURO, TAMILIA and HOFFMAN, JJ.
   MONTEMURO, Judge:

Appellant, Prudential Property and Casualty Insurance Company (“Prudential”), appeals from a grant of summary judgment in favor of the insured, appellee Chester Pappas, in this action to recover work loss benefits under the Pennsylvania No-Fault Motor Vehicle Insurance Act. The issue on appeal concerns the proper method of calculating work loss benefits pursuant to § 206 of the No-Fault Act in cases where the no-fault insurer is entitled to a deduction for income tax savings realized by the insured through the receipt of nontaxable benefits.

The underlying facts in this case are undisputed. On January 18, 1982, Chester Pappas was seriously injured while operating a motor vehicle during the course of his employment. The Injuries left Pappas permanently disabled and unable to return to his job. Since the date of his accident, Pappas has been receiving worker’s compensation benefits; he has also received Social Security Disability benefits. Through his counsel, on September 8, 1982, Pap-pas notified Prudential, his no-fault insurer, that he had sustained work loss and benefits were therefore owing under the No-Fault Act. Pappas thereafter supplied Prudential with information necessary to process his claim for work loss benefits. Although in January, 1988, Prudential made partial payments to Pappas amounting to $1675.26, Prudential thereafter refused to honor any further requests for payments made on behalf of Pappas. Pappas brought this action for no-fault work loss benefits from Prudential to recover the balance of his lost wages not covered by the worker’s compensation and social security benefits. Pappas also included claims for interest on the overdue benefits at a rate of 18% per annum, as allowed under 40 P.S. § 1009.-106(a)(2), and reasonable attorney’s fees pursuant to 40 P.S. § 1009.107.

In cases where the insured is unable to return to work due to injuries from the accident, the No-Fault Act requires no-fault insurers to pay the insured work loss benefits, defined as “loss of gross income of a victim,” subject to a statutory maximum of $15,000. 40 P.S. §§ 1009.103, 1009.-202(b). In computing the amount of an insured’s net loss, the insurer is entitled to subtract from the insured’s work loss any benefits received from other sources to compensate for the injury. 40 P.S. § 1009.206(a). The insurer is also entitled to deduct from the no-fault wage loss benefits any income tax savings which the insured realizes through receipt of nontaxable loss-of-income benefits. 40 P.S. § 1009.206. The parties here disagree as to how the tax deduction should be computed.

The relevant provisions of the No-Fault Act state:

§ 1009.206. Net Loss
(a) General. — Except as provided in section 108(a)(3) of this act, all benefits or advantages (less reasonably incurred collection costs) that an individual receives or is entitled to receive from social security (except those benefits provided under Title XIX of the Social Security Act and except those medicare benefits to which a person’s entitlement depends upon use of his so-called ‘life-time reserve’ of benefit days) workmen’s compensation, any State-required temporary, nonoccupational disability insurance, and all other benefits (except the proceeds of life insurance) received by or available to an individual because of the injury from any government, unless the law authorizing or providing for such benefits or advantages makes them excess or secondary to the benefits in accordance with this act, shall be subtracted from loss in calculating net loss.
(b) Tax deduction. — If a benefit or advantage received to compensate for loss of income because of injury, whether from no-fault benefits or from any source of benefits or advantages subtracted under subsection (a) of this section, is not taxable income, the income tax saving that is attributable to such loss of income because of injury is subtracted in calculating net loss for work loss. Subtraction may not exceed twenty per cent (20%) of the loss of income and shall be in such lesser amount as the insurer reasonably determines is appropriate based on a lower value of the income tax advantage.

40 P.S. § 1009.206.

Relying on Motley v. State Farm Mutual Insurance Co., 502 Pa. 335, 466 A.2d 609 (1983), the trial court held that the income tax deduction must be based solely on the work loss benefits payable by Prudential under the no-fault policy. We disagree. A careful reading of Motley shows that the Motley court did not address the issue before this Court. In a footnote, the Court simply noted that “[ujnder Section 206(b) of the No-Fault Act, the wage loss payment to the insured shall be adjusted so as to take into consideration the tax advantages which accrue to the claimant.” 502 Pa. at 340 n. 7, 466 A.2d at 611 n. 7. Motley provides no further guidance as to how the tax advantage is to be calculated.

The statute is clear on its face. Under § 206(a), the amount of worker’s compensation benefits and social security benefits which Pappas receives are to be subtracted from his gross work loss in figuring his net work loss. Additionally, under § 206(b), Prudential is entitled to a deduction for Pappas’ income tax savings resulting from the receipt of any loss-of-income benefits which are nontaxable under the federal and state tax codes. If Pappas had not been injured, he would have had to pay income tax on the income he received from his employer. Because some of the wage loss compensation benefits which he is receiving are not taxable under the taxation statutes, Prudential need not compensate Pappas for income tax which he would have had to pay had he been working. “The purpose of § 206(b) is to prevent a no-fault claimant from receiving a windfall by virtue of income tax savings.” Brown v. City of Pittsburgh, 126 Pitt.Legal J. 312, 317 (1978).

As we read the statute, the amount of the tax savings deduction depends on those loss-of-income benefits, including, inter alia, the work loss benefits paid by the no-fault insurer, worker’s compensation benefits, and social security benefits, that constitute nontaxable income under the tax laws. We disagree with Pappas’ position that the deduction must be based only on the work loss benefits payable by Prudential under the no-fault policy.

The Pennsylvania Code, 31 Pa.Code §§ 66.54, 66.55, provides guidance as to the proper method of calculating the net work loss which Prudential is required to pay. Sections 106(a)(1) and (2) of the No-Fault Act require that the no-fault benefits be paid monthly as loss accrues; the no-fault insurer must pay interest at a rate of 18% per annum on those benefits which are not paid within 30 days of submission of proof of the loss. 40 P.S. § 1009.106. Accordingly, we will compute the amount of benefits owing to Pappas on a monthly basis.

Pappas’ net loss, that is, the work loss payable by Prudential, is computed by subtracting the value of Pappas’ worker’s compensation, social security disability benefits and income tax savings from his total lost income. See 31 Pa.Code §§ 66.54(b)(2)(ii), (iii).

I. TOTAL LOST INCOME

First we calculate the amount of Pappas’ gross income actually lost. As of the date of the accident on January 18, 1982, Pappas earned a weekly wage of $252.29. Pappas’ weekly wage multiplied by 52 (weeks per year), and then divided by 12 (months per year) amounts to a monthly gross lost wage of $1,098.25.

II. WORKER’S COMPENSATION BENEFITS

Pappas’ worker’s compensation benefits for the period in question are as follows: R.R. at 99a-100a. Using these numbers, Pappas’ monthly worker’s compensation amounts to $728.82 per month from the period of January 19,1982 to April 18, 1988, and $216.66 per month from April, 1988 until April 14, 1990.

PERIOD WORKMAN'S' COMPENSATION
1/19/82 to 4/18/88 $168.19 per week
4/04/88 to 1/20/89 $ 50.00 per week
1/20/89 to 4/14/90 $ 50.00 per week

III. SOCIAL SECURITY BENEFITS

Pappas’ social security benefits were paid as follows:

PERIOD SOCIAL SECURITY PAYMENTS
7/81/88 (lump sum) $1236.00 ($103.00/mo. for 7/82-7/83)
8/1/83 to 12/31/83 $ 103.00 per month
1984 $ 137.00 per month
1985 $ 174.00 per month
1986 $ 189.50 per month
1987 $ 195.90 per month
1988 $ 218.50 per month
1989 $ 299.90 per month
1990 $ 603.00 per month

IY. TAX DEDUCTION

Section 66.55(3) of the Pennsylvania Code provides that the allowance for the total of the federal, state and local taxes may not exceed the following:

Monthly income Percentage
Under $500 10
$500 to $999 15
$1,000 or over 20

31 Pa.Code § 66.55(3). See also Brown v. City of Pittsburgh, supra. If the insured shows that he or she actually pays a lower tax rate on his or her income, then the insurer is to deduct the actual lower rate rather than the maximum levels set forth above. On the other hand, if the no-fault insurer demonstrates that the insured pays a higher percentage for any of these income levels, then the higher percentage may be used, up to a maximum of 20%. 31 Pa.Code § 66.55(5).

In this case, Pappas has not demonstrated that a lower tax rate should apply, nor has Prudential shown that a tax rate higher than the rates set forth above applies. We therefore will apply the rate graduations as they are set forth in 31 Pa.Code § 66.55(3).

As noted above, the tax deduction must be calculated on the basis of those loss-of-income benefits which are nontaxable under the tax laws. A review of the relevant federal and state statutes shows that Pappas’ worker’s compensation benefits and the no-fault wage loss benefits are not taxable as gross income. The Internal Revenue Code excludes from taxable gross income:

(1) amounts received under workmen’s compensation acts as compensation for personal injury or sickness; ******
(3) amounts received through accident or health insurance for personal injuries or sickness;
******

26 U.S.C. § 104(a). The Pennsylvania Individual Net Income Tax Act also excludes these benefits from the net income subject to state income tax:

B. The term “gross income” does not include the following items:
******
(5) Any amount received through accident or health insurance, or under workmen’s compensation acts as compensation for personal injuries or sickness, ...

72 P.S. § 3402-303. Because Pappas’ worker’s compensation and no-fault work loss benefits are excludable from taxable income, Prudential is entitled to deduct an amount of tax savings attributable to Pappas’ receipt of the nontaxable workman’s compensation and no-fault benefits.

The taxability of the social security benefits poses a more complicated question. Section 86 of the Internal Revenue Code sets forth a formula for determining when social security benefits are includable in taxable gross income. We are unable to determine whether Pappas’ social security disability benefits are taxable under § 86, because the record is devoid of certain relevant information. Section 86 of the Internal Revenue Code provides:

Sec. 86. Social security and tier 1 railroad retirement benefits.
(a) In general.
Gross income for the taxable year of any taxpayer described in subsection (b) includes ... social security benefits in an amount equal to the lesser of-
(1) one-half of the social security benefits received during the taxable year, or
(2) one-half of the excess described in subsection (b)(1).
(b) Taxpayers to whom subsection (a) applies.
(1) In general. A taxpayer is described in this subsection if—
(A) the sum of—
(i) the modified adjusted gross income of the taxpayer for the taxable year, plus
(ii) one-half of the social security benefits received during the taxable year, exceeds
(B) the base amount.
(2) Modified adjusted gross income. For purposes of this subsection, the term “modified adjusted gross income” means adjusted gross income
(A) determined without regard to this section and sections 135, 911, 931, and 933, and
(B) increased by the amount of interest received or accrued by the taxpayer during the taxable year which is exempt from tax.
(c) Base amount. For purposes of this section, the term “base amount” means—
(1) except as otherwise provided in this subsection, $25,000,
(2) $32,000, in the case of a joint return, and
(3) zero, in the case of a taxpayer who—
(A) is married at the close of the taxable year (within the meaning of section 7703) but does not file a joint return for such a year, and
(B) does not live apart from his spouse at all times during the taxable year.
(d) Social Security benefit
(1) In General. For purposes of this section, the term “social security benefit” means any amount received by the taxpayer by reason of entitlement to—
(A) a monthly benefit under title II of the Social Security Act, or ...

26 U.S.C. § 86.

Thus, the taxability of the social security benefits depends upon whether the social security payments are monthly benefits under title II of the Social Security Act, 26 U.S.C. § 86(d)(1), and whether Pappas fits the definition of a “taxpayer[] to whom subsection (a) applies.” 26 U.S.C. § 86(b). The social security disability benefits which Pap-pas received fall within § 86 insofar as the disability insurance benefit payments are monthly benefits under title II of the Social Security Act. See Title II of Social Security Act, 42 U.S.C. § 423. The question which we are unable to answer is whether Pappas is a “taxpayer to whom subsection (a) applies” according to the formula set forth in § 86(b), because we do not know what Pappas’ “modified adjusted gross income” within the meaning of § 86(b)(2) is for any of the years in question, nor can we determine the “base amount” applicable to Pappas under § 86(c).

Having examined the particular numbers involved in this case, however, we find that a determination of the taxability of the social security benefits is unnecessary, given the extensiveness of Pappas’ work loss. Even if we assume the worst case scenario from Pappas’ standpoint, that is, that the social security benefits are nontaxable under the Internal Revenue Code and therefore Prudential is entitled to a tax advantage deduction for the social security benefits, we find that Prudential is responsible for the full $15,000 statutory maximum for work loss benefits.

Thus, we will assume for purposes of our calculations that the social security benefits are nontaxable under the Internal Revenue Code and therefore Prudential is entitled to a tax advantage for the entire amount of loss-of-income benefits which Pappas receives, including the social security benefits, worker’s compensation and no-fault work loss benefits. The tax deduction therefore must be based on Pappas’ entire gross lost income, $1,093.25, which Pappas receives in loss-of-income benefits.

According to the rates broken down in 31 Pa.Code § 66.-55(3), the amount of the deduction for the tax savings is: 10% of $499.99 ($49.99), plus 15% of the next $500.00 ($75.00), plus 20% of the remaining $94.25 ($18.85). Thus, Prudential may deduct a maximum of $143.84 per month for tax savings realized by Pappas.

In view of the foregoing, the year-end totals owing to Pappas are:

1982
PERIOD OF 1/18/82 THROUGH 7/18/82:
gross lost income $1093.25/mo.
worker’s compensation -728.82/mo.
social security -0
tax deduction -143.84/mo.
no-fault wage loss claim $ 220.59/mo.
months disabled X 6
WAGE LOSS CLAIM DUE $1323.54
PERIOD OF 7/18/82 THROUGH 12/18/82:
gross lost income $1093.25/mo
worker’s compensation -728.82/mo.
social security — 103.00/mo.
tax deduction -143.84/mo.
no-fault wage loss claim $ 117.59/mo.
months disabled X 5
WAGE LOSS CLAIM DUE $ 587.95
1982 TOTAL............................. $1911.49
1983
gross lost income $1093.25/mo.
worker’s compensation —728.82/mo.
social security — 103.00/mo.
tax deduction —143.84/mo.
no-fault wage loss claim $ 117.59/mo.
months disabled X 12
WAGE LOSS CLAIM DUE $1411.08
1983 TOTAL............................. $1411.08
1984
gross lost income $1093.25/mo.
worker’s compensation —728.82/mo.
social security —137.00/mo.
tax deduction —143.84/mo.
no-fault wage loss claim $ 83.59/mo.
months disabled X 12
WAGE LOSS CLAIM DUE $1003.08
1984 TOTAL............................. $1003.08
1985
gross lost income $1093.25/mo.
worker’s compensation —728.82/mo.
social security — 174.00/mo.
tax deduction —143.84/mo.
no-fault wage loss claim $ 46.69/mo.
months disabled X 12
WAGE LOSS CLAIM DUE $ 559.08
1985 TOTAL.............................$ 559.08
1986
gross lost income $1093.25/mo.
worker’s compensation -728.82/mo.
social security -189.50/mo.
tax deduction -143.84/mo.
no-fault wage loss claim 31.09/mo.
months disabled X 12
WAGE LOSS CLAIM DUE $ 373.08
1986 TOTAL.............................$ 373.08
1987
gross lost income $1093.25/mo.
worker’s compensation -728.82/mo.
social security tax deduction -195.90/mo. -143.84/mo.
no-fault wage loss claim $ 24.69/mo
months disabled X 12
WAGE LOSS CLAIM DUE $ 296.28
1987 TOTAL.............. $ 296.28
1988
PERIOD OF 1/82 to 4/18/88:
gross lost income $1093.25/mo.
worker’s compensation -728.82/mo.
social security -218.50/mo.
tax deduction -143.84/mo.
no-fault wage loss claim $ 2.09/mo.
months disabled X 4
WAGE LOSS CLAIM DUE $ 8.36
PERIOD OF 4/18/88 through 12/88:
gross lost income $1093.25/mo.
worker’s compensation -216.66/mo.
social security -218.50/mo.
tax deduction — 143.84/mo.
no-fault wage loss claim 514.25/mo.
months disabled X 8
WAGE LOSS CLAIM DUE . $4114.00
1988 TOTAL $4122.36
1989
gross lost income $1093.25/mo.
worker’s compensation -216.66/mo.
social security -299.90/mo.
tax deduction -143.84/mo.
no-fault wage loss claim $ 432.85/mo.
months disabled X 12
WAGE LOSS CLAIM DUE $5194.20
1989 TOTAL.............. $5194.20
1990
PERIOD OF 1/90 to 4/14/90:
gross lost income $1093.25/mo.
worker’s compensation -216.66/mo.
social security -603.00/mo.
tax deduction -143.84/mo.
no-fault wage loss claim $ 129.75/mo.
months disabled X 4
WAGE LOSS CLAIM DUE $ 519.00
1990 TOTAL.............................$ 519.00

The yearly totals amount to $15,389.65. Thus, as of April, 1990, when this suit was brought, Prudential owed Pappas the statutory maximum of $15,000 in work loss benefits. The record reflects that Prudential was notified as early as September, 1982 of its obligation to compensate Pappas for his work loss benefits. See Complaint, exh. “B”, exh. “C”, R.R. at 49A-51A. Despite numerous requests by Pappas’ attorney for payment of the benefits prior to the institution of this lawsuit, Prudential paid Pappas only $1,675.26. Under sections 106(a)(2) and 107 of the No-Fault Act, Pappas is entitled to recover interest at the rate of 18% per annum on the overdue payments. We are completely unimpressed by Prudential’s failure to pay the work loss benefits on a timely basis, and causing Pappas to undergo this extended litigation to recover benefits which were rightfully owing to him from the start.

We remand this case to the trial court to enter an order awarding Pappas the remainder of his work loss benefits, that is, $13,324.74, plus interest.

For the foregoing reasons, we remand this case for further proceedings consistent with this decision.

Remanded. Jurisdiction relinquished.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq., repealed by Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984.

      . As of January 20, 1989, Pappas’ worker’s compensation payments were commuted to a lump sum of $25,000.00 pursuant to the Workmen’s Compensation Act, 77 P.S. § 604. Pappas received this commutation in lieu of future worker’s compensation payments. The figure represents the total of sum of $50.00 per week for 500 weeks worth of future workman’s compensation which Pappas was entitled to receive under 77 P.S. § 512 for his disability. We disagree with Prudential that the full $25,000 sum should be used in calculating Pappas’ net loss, as this sum represents compensation for future wage loss. We do not believe that our Legislature intended that a no-fault insurer should be able to defeat its obligation to pay work loss benefits simply by delaying payment until seven years after the accident and loss occur and then relying on the commutation award representing future worker’s compensation benefits in computing the amount owed. To hold otherwise would encourage insurers to withhold payment of work loss benefits in the hope that the insured would receive a large commutation award. The Act envisions timely payment of the work loss benefits. Thus, for purposes of our calculations, we will apportion the lump sum award in amounts of $50.00 per week, as this is what the $25,000.00 represents.

      . Pappas did not receive any social security benefits until July, 1983.

      . In July, 1983, Pappas received a lump sum social security benefit payment in the amount of $1236.00, representing $103.00 per month from 7/82 to 7/83. For purposes of our calculations, we will apportion the lump sum payment according to the monthly benefit it represents.

      . As of April 18, 1988, Pappas’ weekly worker’s compensation of $168.19 was reduced to $50.00 per week.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    588 A.2d 30
    COMMONWEALTH of Pennsylvania, Appellant, v. Donna L. DEMIS.
    No. 1747 Pittsburgh 1989
    Superior Court of Pennsylvania.
    Argued Jan. 10, 1991.
    Filed March 6, 1991.
    Reargument Denied April 11, 1991.

      John F. DiSalle, Asst. Dist. Atty., Washington, for Com.
    Mark S. Galper, Monessen, for appellee.
    Before TAMILIA, POPOVICH and JOHNSON, JJ.
   JOHNSON, Judge:

The Commonwealth appeals from an order which suppresses the results of a blood alcohol test in a prosecution for driving while under the influence of alcohol, 75 Pa.C.S. § 3731(a)(4). We are asked to decide whether the destruction of a blood sample offends due process where (1) access to the sample can only be obtained through the cooperation of the prosecuting officer and (2) both the Commonwealth and the prosecuting officer are aware of a timely request for preservation.

We conclude that neither the federal nor the state constitution impose a requirement for preservation of a sample of body fluid or breath where the results of chemical test are inculpatory. We also conclude that the blood alcohol sample was not evidence and need not have been preserved for disclosure. Finding no other basis upon which relief could have been granted, we therefore conclude that the motion to suppress should have been denied. We reverse the order suppressing the results of the test and remand for further proceedings not inconsistent with this opinion.

Donna L. Demis was stopped by Officer Charlton of the Donora Police on May 7, 1989 for driving at excessive speeds while operating an automobile. She was charged with driving under the influence of alcohol, after failing several field sobriety tests administered by Officer Charlton. Demis was later asked to submit to a blood alcohol test at a local hospital. A blood sample was taken from Demis and submitted to the Pennsylvania State Police Crime Laboratory in Greensburg (Crime Lab) for a gas chromatographic analysis. The lab report, issued May 15, 1989 established that the ethyl alcohol level in Demis’s blood was 0.11%.

On May 22, 1989 defense counsel forwarded a written request for a copy of the lab report to the Donora Police. In the letter counsel informed the Donora Police of his intention to have the sample tested by an independent forensic chemist. The next day, May 23, 1989, defense counsel telephoned the Crime Lab and requested that the Crime Lab preserve Demis’s blood sample for re-testing. Mr. McAtee of the Crime Lab agreed to preserve the sample. However, he informed defense counsel that the blood sample could only be released to the requesting agency, in this case, the Donora Police. Defense counsel again contacted the Donora Police indicating his desire to obtain the blood sample for testing by an independent chemist. However, the sample was never obtained.

On July 5, 1989, Demis’s attorney had filed a Request for Pre-Trial Discovery which included a request that the Commonwealth produce Demis’s blood samples. On August 14, 1989 the Commonwealth filed its Answer and later notified Demis that it would cooperate in obtaining the sample for independent testing. When defense counsel contacted the Crime Lab he learned that the sample had been destroyed on July 7,1989. Demis then filed a Motion for Dismissal of Charges or to Suppress Evidence. Her suppression motion was granted after a hearing. The Commonwealth appeals the court’s decision.

Our initial review of a suppression court’s ruling is limited to whether the factual findings are supported by the record. Commonwealth v. Hamlin, 302 Pa.Super. 86, 448 A.2d 538 (1982). If the evidence supports the factual findings we may only reverse if the legal conclusions drawn therefrom are in error. Id. Applying this standard to the instant case, we conclude that the suppression court erred in granting Demis’s motion to suppress the results of her blood test.

The Commonwealth argues that the results of the blood alcohol test are admissible pursuant to Commonwealth v. Tillia, 359 Pa.Super. 302, 518 A.2d 1246 (1986) and cites Tillia for the proposition that the Commonwealth has no duty to preserve evidence. Demis, on the other hand, contends that the results should have been suppressed due to unexcused delays and because she had been denied her right to due process with regard to having an independent analysis of the sample performed where she has made a timely request for the same.

First, we recognize that Demis had no statutory right to independent analysis of the original blood sample. Chemical testing is covered under 75 Pa.C.S. § 1547 which provides in pertinent part:

§ 1547. Chemical testing to determine amount of alcohol or controlled substance
(g) Test results available to defendant. — Upon request of the person tested, the results of any chemical test shall be made available to him or his attorney.
(h) Test by personal physician. — The person tested shall be permitted to have a physician of his own choosing administer an additional breath, blood or urine chemical test and the results of the test shall also be admissible in evidence. The chemical testing given at the direction of the police officer shall not be delayed by a person’s attempt to obtain an additional test.

75 Pa.C.S. § 1547(g) and (h) (emphasis added). Section 1547(g) advises an individual that test results are available upon request. Section 1547(h) merely provides an individual with the right to have a physician administer an additional test, the results of which are also admissible at trial. It does not provide an individual with the right to re-test her original sample as Demis would have us believe.

We next consider whether the Commonwealth had any duty to preserve her blood sample based upon Constitutional grounds. The federal standard whereby evidence is constitutionally required to be preserved for disclosure was enunciated in the case of California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). In that case, Trombetta was stopped for drunken driving. He submitted to an Intoxilyzer or breath test which registered a blood-alcohol level of substantially higher than 0.10%. Pursuant to established practice, the sample was not preserved by the California police.

Trombetta filed a motion to suppress the Intoxilyzer test results on the ground that the arresting officers had failed to preserve his breath sample, claiming that if his sample had been preserved he would have been able to impeach the incriminating Intoxilyzer results. The lower court denied Trombetta’s motion. Trombetta appealed to the California Court of Appeal which granted his motion to suppress. The State petitioned for certiorari in the California Supreme Court; that petition was denied. The United States Supreme Court granted certiorari and set forth the following two-pronged test for determining whether evidence is constitutionally required to be preserved for disclosure:

evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.

Trombetta, 467 U.S. at 489, 104 S.Ct. at 2534, 81 L.Ed.2d at 422. The Supreme Court concluded that:

[t]o the extent that respondent's breath samples came into the possession of California authorities, it was for the limited purpose of providing raw data to the Intoxilyzer. The evidence to be presented at trial was not the breath itself but rather the Intoxilyzer results obtained from the breath samples.

Trombetta, 467 U.S. at 487-488, 104 S.Ct. at 2533, 81 L.Ed.2d at 421 (footnote omitted). The Court then held that the Due Process Clause of the Fourteenth Amendment did not require that law enforcement agencies preserve breath samples in order to introduce breath analysis tests at trial.

We have considered this issue within the framework of the Pennsylvania Constitution in Commonwealth v. Gamber, 352 Pa.Super. 36, 506 A.2d 1324 (1986) and Commonwealth v. Tillia, 359 Pa.Super. 302, 518 A.2d 1246 (1986). In Gamber the appellant argued that his blood sample would have been potentially exculpatory and thus should have been preserved by the police for re-testing. However, the trial court found Gamber guilty of driving under the influence of alcohol. We affirmed the trial court’s decision, applying the test enunciated in Trombetta, supra and held that under the Pennsylvania Constitution, a defendant’s rights are not abridged by the Commonwealth’s failure to preserve a breath sample where appellant has not shown that the evidence he seeks to preserve is both exculpatory and of such a nature that defendant would be unable to obtain comparable evidence by other reasonably available means. See Gamber, supra, 352 Pa.Super. at 41-42, 506 A.2d at 1327-1329.

Again applying the Pennsylvania Constitution in Tillia, our holding was the same. In that case Tillia’s blood sample was destroyed the day or the next day after it was extracted from Tillia pursuant to the state policy then in effect. In Tillia we also held that Tillia’s only recourse was to challenge the “reliability of the test device and procedures, as well as the credibility of the analyst.” Tillia, 359 Pa.Super. at 313, 518 A.2d at 1252. Further, in both Gamber and Tillia we stated that the test result, not the test sample is the material evidence which is determinative of a defendant’s guilt or punishment. Gamber, 352 Pa.Super. at 43-44, 506 A.2d at 1328; Tillia, 359 Pa.Super. at 313-314, 518 A.2d at 1252.

Applying the rule as enunciated in Trombetta and followed by our court in Gamber and Tillia, we conclude that Demis’s motion to suppress the results of her blood test should have been denied. Demis has not alleged that the evidence was exculpatory or of such a nature that comparable evidence could not be obtained by other reasonably available means. She merely alleges that she made a timely request for its preservation and therefore the sample should not have been destroyed. This is not enough.

Moreover, the results of her blood test were inculpatory; her test results indicated an 0.11% alcohol level. 75 Pa.C.S. § 3731(a)(4) prohibits a person from driving while the amount of alcohol by weight in the person’s blood is 0.10% or greater. Demis was in violation of the statute based upon her test results. Thus, she should have challenged “the reliability of the test device and procedures, as well as the credibility of the analyst” instead of filing a motion for suppression. See Tillia, 359 Pa.Super. at 313, 518 A.2d at 1252. Her constitutional challenge fails in light of our application of the aforementioned standard for preservation.

Finally, we note that the case of Commonwealth v. Koebach, 40 Lehigh L.J.1984 is inapplicable here. Koebach, decided without the benefit of Gamber and Tillia, does not set forth Pennsylvania law. We have concluded in Gamber and Tillia that the test results and not the sample are evidence. Therefore destruction of the sample is not a violation of due process where the appellant has not shown that the destroyed evidence “posess[es] [both] an exculpatory value that was apparent before the evidence was destroyed, and also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Gamber, 352 Pa.Super. at 42, 506 A.2d at 1327-1328 (citation omitted); Tillia, 359 Pa.Super. at 310, 518 A.2d at 1250 (citation omitted).

Accordingly, we reverse the order of the trial court and remand.

Order reversed. Case remanded. Jurisdiction relinquished.


author: CAVANAUGH, Judge:

text:
    588 A.2d 34
    COMMONWEALTH of Pennsylvania, Appellee, v. Walter Robert KINSEL, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 4, 1990.
    Filed March 18, 1991.
    David R. Eshelman, Reading, for appellant.
    Charles Coleman, Asst. Dist. Atty., Reading, for Com., appellee.
    Before CAVANAUGH, OLSZEWSKI and FORD ELLIOTT, JJ.
   CAVANAUGH, Judge:

This is an appeal from the judgment of sentence entered in the court below.

The appellant, Walter Robert Kinsel, was charged with murder, involuntary manslaughter, voluntary manslaughter, aggravated assault, recklessly endangering another person, and possessing an instrument of crime. The charges arose out of an incident on September 22, 1987 in which Betty Kinsel, the wife of appellant, was shot three times in the neck at close range. Appellant testified that he and his wife were having marital difficulties and had been going to a marriage counselor. On the evening of the fatal shooting, the appellant and Mrs. Kinsel had been to a marriage counselor. According to the appellant, Mrs. Kinsel was very upset over his children by a former marriage not liking her, about sexual problems and her experience with “ghosts” in the house. Mrs. Kinsel had witnessed ghosts or images in her bedroom in the past and had retained an exorcist to remove them but without success. After the couple arrived home, Mrs. Kinsel went to her bedroom to retire. The appellant occupied a separate bedroom.

Appellant testified that when it was time for him to retire, he went to his wife’s room to say goodnight. She was still upset and angry and she told him to get out. As he turned around to leave, she said, “this is it — you’ve had it”, and he observed a gun in her hand. He was only a short distance away and jumped on the bed to grab the gun when it went off and the deceased suffered three wounds. There were no eyewitnesses other than appellant. (445). The Commonwealth introduced evidence through Dr. Hoffman, a pathologist, that in his opinion, the decedent was shot three times in the neck while lying in bed and the muzzle of the gun was against her body when she was shot. Although appellant told police that a struggle occurred with his wife before the gun went off, the bedroom and all the furnishings were very orderly and neat, and when the police arrived shortly after the shooting, there was no evidence of a struggle.

The jury trial before the Honorable Calvin E. Smith wag extended, having started on August 8, 1988 and continued until August 22, 1988. The trial covered seven separate days. The notes of testimony were more than 880 pages in length. The jury returned a verdict of not guilty of murder and manslaughter, but guilty of aggravated assault, recklessly endangering another person, and possessing an instrument of crime. Appellant’s motion for a new trial and in arrest of judgment were denied. He was sentenced to imprisonment for five to ten years for aggravated assault. The court held that the offense of recklessly endangering another person merged with that of aggravated assault for purposes of sentencing. The appellant was also sentenced to twelve to twenty-six months imprisonment for possessing an instrument of crime, the sentence to run concurrently with that for aggravated assault. An appeal has been taken from the judgment of sentence.

Sentence was entered on February 22, 1989 and an appeal was taken to this court on March 28, 1989. The record was not forwarded to this court, and on June 6, 1990, the Prothonotary of the Superior Court wrote to the Clerk of Courts of Berks County requesting that the record in the instant case be promptly lodged in the office of the Superior Court Prothonotary even if it was incomplete. The record was forwarded without an opinion by the court below.

Pennsylvania Rule of Appellate Procedure 1925(a) requires that the court below file at least a brief statement of the reasons for the order or judgment appealed from. Failure to comply with the rule, in this ease, precludes us from making a meaningful review. The issues are complex, involving as they do, alleged errors in the charge, testimony of Commonwealth witnesses, exclusion of evidence on behalf of the appellant, and in admission of photographs. There is also an issue as to the sufficiency of the evidence, since much of the evidence on which the convictions were based is circumstantial. The only living eyewitness to the event was the appellant, whose testimony would lead us to a different conclusion than that reached by the Commonwealth expert, Dr. Hoffman. Even the Commonwealth’s witnesses corroborated that the deceased had a gun and Karen Schwartz, a daughter of the decedent, testified about her mother’s belief that “images” were in her bedroom at the foot of her bed, but that she was not afraid of them. Ms. Schwartz’s boyfriend, Peter Lysczek, stated that he found a gun under the mattress of the decedent’s bed on an occasion when he was helping her to move to another house.

We are not in any way expressing a view as to the sufficiency of the evidence or of any other issues raised, but it is necessary for us to have an opinion of the trial court who heard and saw the witnesses to assist us in the review of this case. What we stated in Commonwealth v. Atwood, 378 Pa.Super. 21-28, 547 A.2d 1257, 1260-1261 (1988), appeal denied by Commonwealth v. Atwood, 521 Pa. 616, 557 A.2d 720 (1989), is appropriate in the instant matter:

This was an extensive trial____ To ask this Court to do the exhaustive review of that record ... with no assistance from the trial judge who sat throughout the proceeding, makes a mockery of appellate review. Our system of appellate review provides an effective expeditious means for fair examination of the issues and resolution of them. It depends, however, on counsel and the trial court adhering to the Rules of Appellate Procedure if the system is not to be paralyzed.

We are mindful of our prothonotary’s letter to the Clerk of Courts of Berks County of June 6, 1990 requesting that the record in this case, as well as in five other cases from Berks County, be lodged in this office, even if incomplete. The reason for this letter was that the record in this case, including the opinion of the court below, was due in this court within forty days after filing the notice of appeal. Pa.R.A.P. 1931(a). On June 6, 1990 the record was more than one year overdue. The letter of the prothonotary was also sent because five other records from Berks County were also overdue. While we requested that the record, although incomplete, be forwarded as soon as possible, this did not relieve the court below of its responsibility of complying with Pa.K.A.P. 1925(a). While in some instances it is possible to properly decide on appeal where there is no trial court opinion, where, as here, we do not have the benefit of an opinion of the trial court and the issues are many and complex, the proper remedy is to remand to the court below with directions that an opinion be promptly prepared and returned to us. Commonwealth v. Hicks, 328 Pa.Super. 233, 476 A.2d 978 (1984).

Case remanded to court below for the preparation of an opinion to be forwarded to this court within sixty (60) days.

Panel jurisdiction is relinquished in order to preserve the rights of the parties to oral argument based upon a full record and opinion in support of the trial court’s disposition. Case to be relisted by the Prothonotary promptly upon the trial court’s compliance with this order.

      . Pa.R.A.P. 1925(a) states:
      RULE 1925. OPINION IN SUPPORT OF ORDER
      (a) General Rule. Upon receipt of the notice of appeal the judge who entered the order appealed from, if the reasons for the order do not already appear of record, shall forthwith file of record at least a brief statement, in the form of an opinion, of the reasons for the order, of for the rulings or other matters complained of, or shall specify in writing the place in the record where such reasons may be found.


author: BECK, Judge:

text:
    588 A.2d 36
    R.L. PAWLOWSKI, Appellant, v. Arnold D. SMORTO, Dino S. Persio, Raymond J. Zadzilko, Thomas J. Sibert and Calvin J. Webb, III, t/d/b/a Smorto, Persio, Zadzilko, Sibert and Webb, Attorneys-at-Law, and Michael A. Sossong, Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 8, 1990.
    Filed March 19, 1991.

      Reginald L. Pawlowski, Johnstown, In Pro. Per.
    Raymond J. Zadzilko, Bbensburg, for appellees.

      Before DEL SOLE, BECK and HUDOCK, JJ.
   BECK, Judge:

This is an appeal from a final order granting defendantsappellees’ preliminary objections in the nature of a demurrer and dismissing plaintiff appellant’s three count complaint.

The appeal raises the following three issues:

1. Where a count of a complaint seeks recovery for wrongful use of civil proceedings, but fails to allege that the defendants initiated, procured or continued any legal action against plaintiff, should that count of the complaint be dismissed?
2. Where a count of a complaint seeks recovery for tortious interference with business and professional relationships, but fails to allege any harm other than the loss of confidence in plaintiff by those involved with him in such relationships, should that count of the complaint be dismissed?
3. Where a count of a complaint seeks recovery for defamation, but reveals on its face that the alleged defamatory statements were made solely to law enforcement officials for the purpose of initiating criminal charges against plaintiff, should the statements be found to be absolutely privileged and that count of the complaint be dismissed?

Our answer to each of these questions is in the affirmative. Therefore, we affirm the order of the trial court.

Initially, we note our standard of review, which has most recently been described as follows:

... preliminary objections in the nature of a demurrer admit every well-pleaded fact in the complaint and all inferences reasonably deducible therefrom. It tests the legal sufficiency of the challenged pleadings and will be sustained only in cases where the pleader has clearly failed to state a claim for which relief can be granted. When determining whether preliminary objections in the nature of a demurrer was [sic] properly granted, an appellate court must accept as true all properly pleaded material facts. We must confine our analysis to the complaint and decide whether sufficient facts have been pleaded to permit recovery if the facts are ultimately proven. The demurrer may be granted only in cases which are so free from doubt that a trial would certainly be a fruitless exercise.

Composition Roofers Local 30/30B v. Katz, 398 Pa.Super. 564, 581 A.2d 607, 609 (1990) (citations omitted).

Accepting all well-pleaded facts as true, we set forth the following summary of the pertinent allegations of the complaint. Appellant is R.L. Pawlowski, a lawyer. Appellees are Arnold Smorto, Dino Persio, Raymond Zadzilko, Thomas Sibert, Calvin Webb II, Michael Sossong and the law firm in which they are all either partners or associates. The dispute between the parties that gave rise to the present action arose from three other lawsuits in which appellant and appellees were involved in various capacities. In two of these lawsuits, appellant represented a Mr. and Mrs. Kopas as plaintiffs. The named defendants were Dino Persio and his wife and Anthony Sossong and his wife. Persio and his wife were represented by Calvin Webb. The Sossongs were represented by Michael Sossong. As noted above, Dino Persio, Calvin Webb and Michael Sossong are all appellees herein. In the third lawsuit, appellant represented Mrs. Kopas and a corporation named Kogen Industries, Inc. as plaintiffs. The named defendants were Smorto, Persio, Zadzilko and Sibert and certain of their relatives. In that action, all defendants were represented by Michael Sossong.

The first two lawsuits were commenced by writ of summons. The parties then became embroiled in a dispute regarding service of the writs. The writs were eventually reissued and served by the sheriff. The defendants then filed preliminary objections to the service of the writs, contending that the court had no jurisdiction over them. A hearing was held and the court determined that it could not grant the preliminary objections at that time because it did not know whether the reissued writs had been served after the expiration of the applicable statute of limitations, a fact which was crucial to its decision.

Immediately after the hearing on the preliminary objections, counsel for the defendants went to the District Attorney of Cambria County and the State Police in Ebensburg and alleged to those officials that appellant had perjured himself during the hearing that had been held on the preliminary objections to the service of the writs as described above.

Based on the above factual predicate, appellant sought recovery from the appellees for wrongful use of civil proceedings and defamation. The first count of appellant’s complaint in the action under review alleges that appellees’ filing of objections to the service of the writs constituted a “wrongful use of civil proceedings”. In the second count, appellant alleges that appellees’ conduct in accusing appellant of perjury constitutes actionable defamation.

The third count of the complaint, where appellant alleges that appellees tortiously interfered with appellant’s business and professional relationships, arises out of the third action described above in which appellant represented Mrs. Kopas and Kogen Industries, Inc. against various of the appellees herein. Appellant alleges that after a deposition of Mrs. Kopas in that action, attorney-appellee Webb turned to Mrs. Kopas and asked her if her counsel, i.e. appellant, had informed her of the possible consequences to her if she should lose the lawsuit. Mr. Webb also allegedly stated to appellant that appellant had a conflict of interest in representing Mrs. Kopas in that action and that she should obtain other counsel. Appellant alleges that in making these remarks, appellees tortiously interfered with his attorney-client relationship with Mrs. Kopas.

We begin with a review of the trial court’s dismissal of counts one and three of appellant’s complaint, since our reasons for affirming the dismissal of these counts can be succinctly stated. As to count I, wrongful use of civil proceedings, we find that appellant failed to plead at least one essential element of the cause of action. The requisites for an action for wrongful use of civil proceedings are defined by statute as follows:

§ 8351. Wrongful use of civil proceedings:

(a) Elements of action. — A. person who takes part in the procurement, initiation or continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings:
(1) He acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in [sic] which the proceedings are based; and
(2) The proceedings have terminated in favor of the person against whom they are brought.

42 Pa.C.S.A. § 8351 (1980).

Clearly, the gravamen of an action for wrongful use of civil proceedings is that the defendant has wrongfully procured, initiated or continued civil proceedings against the plaintiff. Here, however, appellant was not a party to the underlying civil action in which he alleges that appellees acted wrongfully. Appellant was counsel for the plaintiffs, Mr. and Mrs. Kopas, in that action. Thus, there is no conceivable ground upon which appellant could plead a cause of action for wrongful use of civil proceedings. Lessard v. Jersey Shore State Bank, 702 F.Supp. 96 (M.D.Pa.1988) (a person who is not party to the underlying lawsuit cannot bring an action for malicious use of process against the plaintiff in the underlying lawsuit).

In addition, we find that even if appellant had been a party to the underlying lawsuit he nevertheless could not assert a wrongful use of civil proceedings cause of action under the circumstances of this case. Appellant based his pleading of this tort on appellees’ filing of preliminary objections raising a question of jurisdiction in the underlying lawsuit. However, such conduct is not actionable as a wrongful use of civil proceedings because the filing of such preliminary objections, which seek to terminate the proceedings, quite obviously is not the “procurement, initiation or continuation of civil proceedings,” as is required under the governing statutory section set forth above.

As to count three, in which appellant alleges tortious interference with business and professional relationships, once again we conclude that appellant failed to plead an essential element of the cause of action. As this court has stated:

To set forth a legally sufficient cause of action for intentional interference with contractual or prospective contractual relations, four elements must be pled:
(1) the existence of a contractual, or prospective contractual relation between the complainant and a third party:
(2) purposeful action on the part of the defendant, specifically intended to harm the existing relation, or to prevent a prospective relation from occurring;
(3) the absence of privilege or justification on the part of the defendant; and
(4) the occasioning of actual legal damage as a result of the defendant’s conduct.
The Restatement (Second) of Torts defines “actual damages” for interference with a contract as follows, at § 774A:
(1) One who is liable to another for interference with a contract or prospective contractual relation is liable for damages for
(a) the pecuniary loss of the benefits of the contract or the prospective relation;
(b) consequential losses for which the interference is a legal cause; and
(c) emotional distress or actual harm to reputation, if they are reasonably to be expected to result from the interference----

Pelagatti v. Cohen, 870 Pa.Super. 422, 586 A.2d 1337, 1343 (1987), appeal denied by, 519 Pa. 667, 548 A.2d 256 (1988).

The clear import of the foregoing description of this tort is that actual damages must result from the defendant's conduct before recovery can be had and that those damages must flow from a particular type of harm to the plaintiff. This harm is the loss of the benefits of the contract or prospective relation or consequential, emotional or reputational losses resulting from the defendant’s conduct. See also Birl v. Philadelphia Electric Co., 402 Pa, 297, 801, 167 A.2d 472 (1960) (the harm contemplated by the Restatement must actually result before recovery can be had).

Here, appellant does not allege that his client, Mrs. Ropas, has in any way failed to perform her contract for professional services with appellant. Appellant does not allege that Mrs. Ropas terminated appellant’s representation of her or failed to perform her contract with him in any manner. Thus, he alleges no loss of the benefits of that contract. Nor does he allege that he has suffered any emotional distress or harm to his reputation. Rather, appellant alleges only that he believes that Mrs. Ropas’ trust and confidence in appellant as her lawyer was eroded due to Mr. Webb’s comments concerning appellant’s representation and further that those comments caused Mrs. Ropas, not appellant, emotional distress. These allegations are clearly insufficient. See Pelagatti v. Cohen, 370 Pa.Super. at 434-38, 536 A.2d at 1343-44 (without allegations of actual harm in the form of loss of benefits of contract, action for intentional interference must fail).

Having concluded that the trial court’s dismissal of counts one and three was proper, we turn to a consideration of the dismissal of the second count, alleging defamation. This count rests upon statements allegedly made by certain of the appellees to the District Attorney and State Police in which appellees accused appellant of perjury. The trial court found these statements to be absolutely privileged and dismissed the defamation count. Since we agree that these statements are absolutely privileged as statements preliminary to a judicial proceeding, we affirm the trial court’s dismissal of this count.

It has long been the law of Pennsylvania that statements made by judges, attorneys, witnesses and parties in the course of or pertinent to any stage of judicial proceedings are absolutely privileged and, therefore, cannot form the basis for liability for defamation. See Binder v. Triangle Publications, Inc., 442 Pa. 319, 275 A.2d 53 (1971); Post v. Mendel, 510 Pa. 213, 507 A.2d 351 (1986); Triester v. 191 Tenants Association, 272 Pa.Super. 271, 415 A.2d 698 (1979). The policy behind this principle is manifest:

The reasons for the absolute privilege are well recognized. A judge must be free to administer the law without fear of consequences. This independence would be impaired were he to be in daily apprehension of defamation suits. The privilege is also extended to parties to afford freedom of access to the courts, to witnesses to encourage their complete and unintimidated testimony in court, and to counsel to enable him to best represent his client’s interests. Likewise, the privilege exists because the courts have other internal sanctions against defamatory statements, such as perjury or contempt proceedings.

Binder, 442 Pa. at 323-24, 275 A.2d at 56 (1971).

The limitations on the scope of this privilege are equally well-defined. As the Supreme Court has explained, the “protected realm” is limited to “those communications which are issued in the regular course of judicial proceedings and which are pertinent and material to the redress or relief sought.” Post, 510 Pa. at 221, 507 A.2d at 355 (emphasis supplied). Importantly, the existence of the privilege does not depend upon the motive of the defendant in making the allegedly defamatory statement. The privilege is absolute and cannot be destroyed by abuse. Greenberg v. Aetna Ins. Co., 427 Pa. 511, 235 A.2d 576 (1967), cert. denied sub nom., Scarselletti v. Aetna Casualty & Surety Co., 392 U.S. 907, 88 S.Ct. 2063, 20 L.Ed.2d 1366 (1968); Triester, 272 Pa.Super. at 277-79, 415 A.2d at 702 (1979). Moreover, the privilege extends not only to communications made in open court, but also encompasses pleadings and even less formal communications such as preliminary conferences and correspondence between counsel in furtherance of the client’s interest. Moses v. McWilliams, 379 Pa.Super. 150, 549 A.2d 950, 956 (1989) (en banc), appeal denied, 521 Pa. 630, 631, 558 A.2d 532 (1989) (privilege is accorded to pre-trial communications between witnesses and counsel); Pelagatti v. Cohen, 370 Pa.Super. 422, 536 A.2d 1337, 1344 (1987) (privilege is accorded to communications pertinent to any stage of judicial proceedings). Lastly, all doubt as to whether the alleged defamatory communication was indeed pertinent and material to the relief or redress sought is to be resolved in favor of pertinency and materiality. Greenberg v. Aetna Ins. Co., 427 Pa. at 516, 235 A.2d at 578. Whether a particular statement is absolutely privileged is a question of law for the court. Agriss v. Roadway Express, Inc., 334 Pa.Super. 295, 483 A.2d 456 (1984).

The issue presented in this case is whether statements made solely to law enforcement officials in which an accusation of a crime, i.e. perjury, is made, and which are made for the purpose of inducing those officials to bring criminal charges against the accused, are absolutely privileged. To clarify our analysis, we begin by pointing out that we do not analyze the statements in question in connection with any of the various civil actions described above in which appellant and appellees are presently involved, either as parties or as counsel. Clearly, these statements were made outside of those proceedings and did not in any way relate to the adjudication of the claims at issue in those proceedings. Thus, they cannot be considered privileged statements made by the parties or counsel in those proceedings.

The true question is whether these statements should be considered privileged because they were preliminary to the criminal proceedings which appellees were attempting to initiate when they made the statements to the police and district attorney. Therefore, we consider whether statements made preliminary to a criminal proceeding, made solely to the officials who might be responsible for prosecuting the criminal charges, and made by private parties for the purpose of initiating the prosecution of those charges, are absolutely privileged.

Although we have not found a Pennsylvania case specifically addressing this issue, we find that the policies underlying the judicial privilege equally justify a finding of privilege under the circumstances of this case.

Support for this application of the absolute judicial proceedings privilege is found in Section 587 of the Restatement (Second) of Torts. Section 587 describes the privilege as applied to parties to judicial proceedings as follows:

A party to a private litigation or a private prosecutor or defendant in a criminal prosecution is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of or during the course and as a part of, a judicial proceeding in which he participates, if the matter has some relation to the proceeding.

The comment to this Restatement section goes on to explain:

b. The rule stated in this Section is applicable to protect parties to any action before a judicial tribunal. It is immaterial whether the action is criminal or civil in character. Thus the rule applies to a litigant in a civil action, a defendant in a criminal prosecution, or one who, as private prosecutor, formally initiates a criminal action or applies for a search warrant by a written complaint under oath, made to the proper officer, charging another with crime. It applies to communications made by a client to his attorney with respect to proposed litigation as well as to information given and informal complaints made to a prosecuting attorney or other proper officer preliminary to a proposed criminal prosecution whether or not the information is followed by a formal complaint or affidavit.

Restatement (Second) Torts § 587, comment b (emphasis added).

We completely concur in this statement of the scope of the absolute judicial privilege as it applies to private parties involved in providing information to the proper authorities in connection with the suspected commission of a crime. As stated above, according absolute privilege to statements made in or preliminary to judicial proceedings aims at ensuring free and uninhibited access to the judicial system. This policy is obviously served by application of the privilege to statements made solely to law enforcement officials for the purpose of initiating criminal charges. Although such statements may ultimately prove to be false or maliciously motivated, the same may be said of statements made by a party who consults with his or her attorney preliminary to instituting a civil action, or of statements made by counsel in preliminary conferences or negotiations on their client’s behalf. Nevertheless, such statements are deemed to be absolutely privileged because the policy concerns stated above outweigh the right of the defamation plaintiff to seek redress for harm caused by the statements. See Pelagatti v. Cohen, supra. See also Post v. Mendel, supra (Supreme Court suggests that if statements accusing attorney of unethical conduct and accusing client of penury had been made only to those, officials responsible for bringing disciplinary proceedings and/or criminal charges against those accused, absolute judicial privilege would apply).

In the instant case, the statements in question were made solely to law enforcement officials and there is no allegation that they were republished to any other audience. The content of the statements as alleged by appellant in the complaint was limited to the accusation of perjury — no extraneous defamatory content is alleged. Moreover, the complaint concedes that the statements were made at least in part for the purpose of convincing the proper authorities to institute criminal proceedings against appellant. Clearly such statements fit squarely within the absolute privilege as described above.

The order of the trial court is affirmed.

      . Appellant's citation to Johnson v. Pilgrim Mutual Ins. Co., 284 Pa.Super. 314, 425 A.2d 1119 (1981), and Consolidation Coal v. Dist. 5, United Mine Workers, 336 Pa.Super. 354, 485 A.2d 1118 (1984), is unavailing. Neither case stands for the proposition that a mere erosion of the trust between two contracting parties is sufficient harm to support a cause of action seeking damages for tortious interference against the party that allegedly caused that erosion of trust.

      . The trial court also found that even if the statements were not privileged, nevertheless they were not capable of being construed to have a defamatory meaning, given the limited nature of the audience to which the statements were published. Although this may be an equally plausible ground for dismissal of the defamation count, we need not address this issue because of our finding that the statements in question were privileged.

      . Of course, even an absolute privilege may be lost through overpublication, i.e. publication of the defamatory material to unauthorized persons. See Agriss v. Roadway Express, Inc., 334 Pa.Super. 295, 483 A.2d 456, 463 (1984). In the case of the judicial privilege, over-publication may be found where a statement initially privileged because made in the regular course of judicial proceedings is later republished to another audience outside of the proceedings. Pelagatti, 370 Pa.Super. at 439, 536 A.2d at 1345.

      . This section of the Restatement has been relied upon by this court as providing an accurate description of the defense of absolute privilege for parties to judicial proceedings. See Triester v. 191 Tenants Association, 272 Pa.Super. at 275-79, 415 A.2d at 701-02.


author: POPOVICH, Judge:

text:
    588 A.2d 43
    BURGETTSTOWN-SMITH TOWNSHIP JOINT SEWAGE AUTHORITY v. LANGELOTH TOWNSITE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1990.
    Filed March 20, 1991.

      Joseph R. Brendel, Pittsburgh, for appellant.

      Robert N. Clarke, Washington, for appellee.
    Before ROWLEY, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

This is an appeal from a judgment entered in the Court of Common Pleas of Washington County in favor of Burgettstown-Smith Township Joint Sewage Authority (the appellee) and against Langeloth Townsite Company (the appellant) in the amount of $10,821.19. While both parties have presented compelling arguments, we are persuaded that Langeloth’s position here is the correct one. Thus, we reverse and vacate the judgment against it.

In material respect, both Langeloth and the Sewage Authority offer similar versions of the statement of this case. We adopt Langeloth’s recitation of the factual and procedural history for purposes of this appeal.

This action commenced on or about July 1, 1987, with the filing of a Complaint upon a cause of action for unjust enrichment by appellee Burgettstown-Smith Township Joint Sewage Authority (the “Authority”) against appellant Langeloth Townsite Company (“Langeloth”). The Authority’s Complaint alleged that Langeloth was responsible for a portion of the costs incurred by the Authority in complying with a Pennsylvania Department of Environmental Resources (“DER”) directive requiring the Authority to conduct studies and prepare plans with respect to the sewage systems within its jurisdiction. The Authority demanded judgment against Langeloth in the amount of $10,700.00 plus interest and costs.
Following the filing of Langeloth’s Answer to the Authority’s Complaint, a non-jury trial was held on November 9, 1988, before the Honorable Thomas J. Terputac. At the conclusion of the non-jury trial, Judge Terputac issued an Order dated November 9,1988, requiring the Authority to submit its Memorandum of Law within twenty (20) days and requiring Langeloth to submit its Memorandum of Law ten (10) days after receipt of the Authority’s Memorandum of Law. Langeloth received the Authority’s Memorandum of Law on December 19, 1988, and Langeloth filed its Memorandum of Law on December 29, 1988. By Memorandum Opinion and Decision dated January 25, 1989 ..., the Court, by the Honorable Thomas J. Terputae, found in favor of the Authority and ordered Langeloth to pay the Authority in damages the sum of $9,074.82 plus the costs of an application fee which the Authority allegedly filed with the DER. On February 6, 1989, Langeloth filed its Motion for Post-Trial Relief and requested that the Motion be heard by the Court en banc. The Honorable Thomas D. Gladden, John F. Bell, and Thomas J. Terputac heard argument on the Motion for Post-Trial Relief on November 27, 1989. On February 18, 1990, the Court en banc issued its Opinion and Order ..., dismissing the motion and setting the amount of damages at $10,821.19. Judgment was entered against Langeloth on June 17, 1990. Notice of appeal was filed with the lower court on June 20, 1990.

Appellant’s brief, at 4-5. Langeloth has preserved three issues for our review:

1. Whether [it] has been unjustly enriched by [the Sewage Authority’s] compliance with the Department of Environmental Resources’ directives.
2. Whether [its] equal protection guarantees under the United States Constitution have been violated by compelling [it] to reimburse [the Sewage Authority] for an alleged proportional share of the cost of the study.
3. Whether [its] alleged portion of the cost of the study was proved with a reasonable degree of certainty.

Appellant’s brief, at 3. Because we agree with Langeloth’s assertion that the trial court erred in determining that Langeloth was unjustly enriched as a result of the Sewage Authority’s study, we find it unnecessary to address Langeloth’s two remaining claims. See State Farm Mutual Automobile Insurance Co. v. Jim Bowe & Sons, Inc., 372 Pa.Super. 186, 189, 539 A.2d 391, 392 (1988) (“[o]n review of a case tried by a judge sitting without a jury, we must accept the factual findings of the trial court, although we are not bound by the trial court’s legal conclusions drawn from those facts.”); see also Torchia on Behalf of Torchia v. Torchia, 346 Pa.Super. 229, 499 A.2d 581 (1985).

Before we embark on our discussion, we note, sua sponte, that this appeal is properly before us. Although this case involves a suit by the Sewage Authority against a landowner, the gravaman of the Sewage Authority’s complaint was that Langeloth was unjustly enriched as a result of an engineering study conducted by the Sewage Authority pursuant to a DER directive. Thus, since we are not asked to interpret, apply or enforce a statute regulating the affairs of a political subdivision, but rather are asked to consider an appeal based on the theory of unjust enrichment, we see no reason to transfer this case to Commonwealth Court. See 42 Pa.C.S. § 762(a)(4).

In Wolf v. Wolf, 356 Pa.Super. 365, 514 A.2d 901 (1986), this Court set forth the elements of unjust enrichment. Neither party challenges the legal proposition contained in Wolf; to wit:

[The] [e]ssential elements of “unjust enrichment” are benefits conferred on defendant by plaintiff, appreciation of such benefits by defendant, and acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value.

Wolf, 356 Pa.Super. at 374, 514 A.2d at 905-06. As the en banc court in the instant case further notes,

The doctrine of unjust enrichment is equitable in nature____ This doctrine permits recovery where the claimant [can ] show that a benefit was wrongfully secured or passively received, and that it would be unconscionable for the party receiving the benefit to retain it without payment. State Farm Mutual Automobile Insurance Co. v. Jim Bowe & Sons, Inc., et al., 372 Pa.Super. 186, 539 A.2d 391, 393 (1988) citing Meehan v. Cheltenham Twp., 410 Pa. 446, 189 A.2d 593 (1963) and Roman Mosaic and Tile, Inc. v. Vollrath, 226 Pa.Super. 215, 218, 313 A.2d 305, 307 (1973). The most significant requirement for recovery is that the enrichment is unjust. Myers-Macomber Engineers v. M.L.W. Construction Corp., 271 Pa.Super. 484, 414 A.2d 357, 360 (1979). We must focus not on the intention of the parties but on the extent [to which] the enrichment is unjust. Gee v. Eberle, 279 Pa.Super. 101, 420 A.2d 1050 (1980). A showing of wrongdoing or wrongful intent on the part of the benefitted party is not necessary. Id. [420 A.2d] at 1059.

En banc opinion, February 13, 1990, at 4 (emphasis added). See State Farm v. Jim Bowe & Sons, supra.

We have thoroughly reviewed the record in the instant case. It is clear to us that both parties as well as the trial court and the en banc court have considered the record as well. Beyond dispute is the fact that the DER directed the Sewage Authority to conduct a study of the sewer system within its jurisdiction and to prepare plans to ameliorate any conditions that violated The Clean Streams Law, 35 P.S. § 691.1, et seq. The DER’s authority to compel the study was conferred by statute, specifically, Section 203 of The Clean Streams Law, 35 P.S. § 691.203.

At trial, it was admitted that the DER had no authority over Langeloth, inasmuch as Section 203 relates to municipalities. See 35 P.S. § 691.203. See also N.T., November 9, 1988, at 20. Additionally, it was noted that The Clean Streams Law contains no provision which would allow a municipality to assess the costs of DER directed studies against private landowners. N.T., at 20-21. Finally, as Langeloth observes, the DER representative who testified at trial stated that the Sewage Authority was ultimately responsible for conducting the studies. N.T., at 22. See also id. at 27; see id. at 43 (the project manager testified: Q. “As I understand your testimony when you started, the bill or the statement for this project was the ultimate responsibility of the Authority. Is that correct?” A. “Yes.”). See Exhibit H.

Before we comment further upon the facts of this case, we feel it important to note that the issue here is limited. Our sole concern is whether Langeloth was unjustly enriched by the Sewage Authority’s work in conducting the study. We find no evidence in the record to indicate that any remedial actions have been pursued as a result of the study. See N.T., at 52.

Conversely, we find that it was the Sewage Authority’s responsibility to evaluate the sewage system. The study was mandated by the DER and the Sewage Authority was awarded grants to cover 75% of the costs incurred in conducting the study. N.T., at 7, 27. We must conclude that regardless of whether Langeloth would have been obligated to perform a similar study itself had a different provision of The Clean Streams Law been invoked, that issue is not before us. Similarly, we decline to speculate whether the theory of unjust enrichment would apply if the recommendations contained in the Sewage Authority’s plan had been effectuated. See N.T., at 52 (the project manager stated, “Well, the study is in fact just that; the project hasn’t been built yet.”). Our holding is narrow. On the facts before us, we cannot say that Langeloth was unjustly enriched as the result of a study that was undertaken by the Sewage Authority and which was ordered by the DER. See Meehan v. Cheltenham Township, 410 Pa. 446, 189 A.2d 593 (1963).

This is not to imply that Langeloth (or any other property owner, for that matter) should not be responsible for compliance with The Clean Streams Law. See Tamaqua Borough v. Rush Township Sewer Authority, 85 Pa.Commw. 421, 482 A.2d 1167 (1984) (briefly discusses 35 P.S. §§ 691.-201; 691.202). However, it appears that the study merely uncovered the violations and suggested effective remedies. The Sewage Authority did not expend monies to actually fix Langeloth’s sewage systems. See N.T., at 71. Thus, although Langeloth may have received a benefit in that it is now relieved of the burden of conducting an independent study, Langeloth was not under the authority of the DER.

Moreover, although Langeloth may be more informed as a result of the Sewage Authority’s findings, Langeloth was merely the fortunate recipient of an analysis that the Sewage Authority was already required to pursue. See Meehan v. Cheltenham Township, 410 Pa. 446, 450, 189 A.2d 593, 596 (1963) (“[t]he mere fact that one party benefits from the act of another is not of itself sufficient to justify restitution.”). See also Torchia on Behalf of Torchia v. Torchia, 346 Pa.Super. 229, 499 A.2d 581 (1985) (to sustain a claim of unjust enrichment, the claimant must show that the party against whom recovery is sought either wrongfully secured or passively received a benefit that it would be unconscionable for the party to retain) (emphasis added).

The en banc court stressed that at trial, a DER representative testified “that after reviewing the record and the study, the defendant was found to be in violation of The Clean Streams Act____ Specifically, the system currently in use on the defendant’s land does not comply with DER standards. Consequently, it appears as though the defendant received a benefit as a result of the plaintiff’s compliance with the DER mandate and the subsequent procedures undertaken by the plaintiff to remedy the defendant’s situation.” En banc opinion, February 13, 1990, at 4. As we have stated, we must refrain from “punishing” Langeloth under the theory of unjust enrichment. Pursuant to the provisions of The Clean Streams Law, once Langeloth was found to have been in violation of its provisions, the DER could have pursued other courses of action to correct the deviations. See 35 P.S. § 691.316. See 35 P.S. § 691.202. See 35 P.S. §§ 691.5; 691.5(b)(8). See also N.T., at 68-69. Cf. A.H. Grove & Sons, Inc. v. Commonwealth, DER, 70 Pa.Commw. 34, 452 A.2d 586 (1982) (discussing 35 P.S. § 691.316). However, we decline to assess costs against Langeloth where the Sewage Authority was acting not independently, but pursuant to a DER mandate. There is more than sufficient support in the record for our conclusions. Taken as a whole, the trial transcript, the exhibits and the briefs filed by both parties convince us that the doctrine of unjust enrichment was improperly applied in this case. Cf. Summerhill Borough v. Commonwealth, DER, 34 Pa.Commw. 574, 579-580, 383 A.2d 1320, 1323 (1978) (“[ejconomic hardship and losses to municipalities attendant on DER regionalization orders are not valid bases for challenge of such orders.”).

As a final note, we acknowledge Chief Justice Bell’s concurring statement in Meehan v. Cheltenham Township, 410 Pa. 446, 189 A.2d 593 (1963). Therein, he wrote

I have several times expressed my strong opposition to the unjust enrichment doctrine and its adoption in Pennsylvania. The adoption of such a doctrine would, in my judgment, create considerable chaos in the law and greatly increase litigation. Equitably and morally plaintiffs are certainly entitled to recover in this case, but I regret to say that they have no legally justifiable claim. I see no reason, however, why plaintiffs’ equitable and moral claim should not be paid by the township pursuant to a proper authorizing ordinance or resolution.

Id., 410 Pa. at 451-452, 189 A.2d at 596 (emphasis added). Finding that the Sewage Authority has not sustained a claim in unjust enrichment, we reverse the trial court’s and the en banc court’s decision and vacate the judgment against Langeloth.

Reversed.

      . The en banc court does not explain the “subsequent procedures" to which it refers. We assume that it is alluding to the engineering studies or field work performed as part of the study. See Exhibit J; N.T., at 30. See N.T., at 33 (the project manager testified, “[t]hat amount ... represents the amount of $29,000.00, which is the estimated engineering cost associated with preparing this study.”); 34-35.

      . The en banc court also assigned great weight to the fact that Langeloth had notice of the Sewage Authority’s endeavors because there was publicity about the ongoing operations of the Sewage Authority. En banc opinion, February 13, 1990, at 4-5. Additionally, public meetings were held to inform the various residents about the Sewage Authority’s actions. While we are satisfied that Mr. Martin's testimony was credible to the factfinders, we nevertheless conclude that this evidence is irrelevant to the instant issue. Public meetings and advertisements were required by the DER. See N.T., at 58. It seems only logical that those individuals who would be affected by a study which included possible field work in their houses would be informed of the undertaking. This has nothing to do with who is financing the costs.

      . While the Sewage Authority asserts in its Complaint that it incurred additional expenses in the amount of $3,450.00 for sewage implementation, repair, review, reconstruction and modification of Langeloth’s systems, this claim seems to have been abandoned on appeal.


author: CIRILLO, Judge:

text:
    588 A.2d 47
    Beth R. WELZ, Appellant, v. Leonard G. STUMP.
    Superior Court of Pennsylvania.
    Submitted Jan. 14, 1991.
    Filed March 20, 1991.

      David S. Sobotka, Reading, for appellant.
    Susan E.B. Frankowski, Reading, for appellee.
    Before CIRILLO, TAMILIA and HESTER, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Berks County striking the judgment which had been entered against defendant/appellee Leonard G. Stump. We affirm.

On July 16, 1984, the trial court entered a support order in this matter, ordering Stump to pay $239.00 per week for support of his three minor children, and to pay $30.00 per week toward arrears. Plaintiff/appellant Beth R. Welz appealed to this court, arguing that the trial court erred in denying her request for a lump sum payment on the arrears. This court affirmed the trial court’s denial of a lump sum payment. Stump v. Stump, 382 Pa.Super. 655, 549 A.2d 1348 (1988).

On March 21, 1990, Welz obtained a judgment on the arrears pursuant to Pennsylvania Rule of Civil Procedure 1910.23. On May 29, 1990, pursuant to Stump’s petition to strike judgment, the court ordered the judgment stricken. This appeal followed. Welz raises one issue on appeal: Is the plaintiff in a support action entitled to a judgment against the defendant for arrears despite regular, partial payment on the arrears by the defendant?

This court addressed this issue in O’Neill v. Gioffre, 384 Pa.Super. 579, 559 A.2d 588 (1989). There, the defendant/father was ordered to pay $120.00 per week in child support and $15.00 per week towards the arrears. Defendant began making payments in February, 1987. On September 19,1987, the Domestic Relations Office issued to the plaintiff a certificate of arrears in the amount of $8,118.55, which was subsequently reduced to judgment against the defendant pursuant to Pa.R.C.P. 1910.23. In November of 1987, the plaintiff attached the defendant’s property in order to collect the arrears. The defendant responded by filing a petition to strike or open the judgment. The trial court denied the petition, and defendant appealed. This court held that judgment could not be entered against the defendant for the total amount of child support arrears where the support order specifically provided that arrears were to be paid in weekly installments and defendant had continually complied with that order. Id., 384 Pa.Superior Ct. at 583, 559 A.2d at 589. The court stated:

Because Rule 1910.23 permits judgments to be entered only where the defendant fails to comply with the order of support within the thirty day period, we conclude that it does not apply to situations in which the defendant is in compliance with the support order.

Id., 384 Pa.Superior Ct. at 583, 559 A.2d at 590.

In the instant case, the trial court determined that O’Neill was dispositive. We agree.

The support order requires Stump to pay $120.00 each week for support, and $30.00 each week towards the arrearages. Welz does not argue that Stump has failed to make the weekly support payments or the payments towards arrearages; her primary contention on appeal is that the decision in O’Neill is inconsistent with the enactment of Act 1988-35, 23 Pa.C.S. § 4352(d), (Act 35). We find this argument unpersuasive.

Section 4352(d) provides in part:

(d) Arrears as judgments. — On and after the date it is due, each and every support obligation shall constitute a judgment against the obligor by operation of law, with the full force, effect and attributes of a judgment of court, including the ability to be enforced, and shall be entitled as a judgment to full faith and credit in this or any other state____

23 Pa.C.S. § 4352(d) (emphasis added). Act 35 also added to Title 23 the following definition of the phrase “judgment by operation of law:”

“Judgment by operation of law.” A judgment which exists without the need for any ministerial act and which arises out of the existence of facts readily verifiable from the domestic relations section’s records. The existence of a valid support order and nonpayment of the order, together, create the judgment.

23 Pa.C.S. § 4302 (emphasis added). The language of the statute is clear. A judgment by operation of law arises only when both a valid support order and the nonpayment of that order exist simultaneously. Despite Welz’s argument that Act 35 was enacted to strengthen the court’s enforcement powers, we cannot disregard the clear and unambiguous language of the statute under the pretext of pursuing its spirit. 1 Pa.C.S. § 1921(b); In re Fox’s Estate, 494 Pa. 584, 431 A.2d 1008 (1981). Moreover, Welz’s argument focuses on only one segment of Act 35. When interpreting a statute, we must give full effect to each provision. 1 Pa.C.S. § 1921; Fireman’s Fund Ins. Co. v. Nationwide Mut. Ins. Co. 317 Pa.Super. 497, 464 A.2d 431 (1983).

Here, as in O’Neill, the obligor complied with his weekly support obligation, which included support payments and payments toward arrearages. The argument that the legislature intended to create a method by which a plaintiff/obligee may obtain the obligor’s compliance with the support obligation as well as a lump sum judgment on arrearages is untenable. The General Assembly’s intent to reinforce the child support enforcement program so as to ensure the financial well-being of dependent children cannot be viewed in a vacuum. The General Assembly also had as an objective economic fairness to the obligor; the support obligation must bear a reasonable relationship to the obligor’s ability to pay. The trial court fulfilled these objectives by ordering a weekly payment of $30.00 toward accumulated arrears in addition to the weekly child support payment. We do not think that the legislature intended that an obligor be required to pay a lump sum arrearage while making weekly payments towards arrears and complying with the order of support. Such an interpretation is inconsistent with the rationale behind the trial court’s order requiring a payment on account of arrears, and could jeopardize the obligor’s ability to maintain the weekly support obligation. This could be devastating to both the obligor and the dependent children, creating a never-ending cycle of amassed arrearages. Such an interpretation is contrary to the general purpose and object of the statute. See Zimmerman v. O’Bannon, 497 Pa. 551, 442 A.2d 674 (1982); Busy Beaver Bldg. Centers, Inc. v. Teuche, 295 Pa.Super. 504, 442 A.2d 252 (1981).

We find no manifest abuse of discretion or error of law. See Parliament Industries, Inc. v. William H. Vaughan & Co., Inc., 501 Pa. 1, 459 A.2d 720 (1983) (when reviewing an order granting a petition to strike a judgment, an appellate court will reverse only for a manifest abuse of discretion or error of law). Therefore, we affirm the trial court’s order striking judgment against Stump.

Order affirmed.

      . Appellee Leonard G. Stump has not filed a brief in this case.

      . Pa.R.C.P. 1910.23 provides:
      Rule 1910.23 Judgment for Arrearages. Execution.
      (a) If the defendant is thirty days or more in arrears under the order of the court as appears from a current certificate of the domestic relations section, the prothonotary shall enter judgment on praecipe accompanied by the certificate in the amount shown in the certificate.
      (b) The prothonotary shall immediately give notice to the defendant and his attorney of record, if any, by ordinary mail of the entry of the judgment, together with a copy of the certificate filed under subdivision (a) of this rule.

        (c) Judgment shall be enforced as provided by Rules 3001 to 3011 and 3101 to 3149, inclusive, governing the transfer of judgments and the enforcement of judgments for the payment of money, and by attachment of wages, salar y and commissions as provided by Rule 1910.22.

      . We note that Welz has failed to comply with the trial court’s order directing her to file a concise statement of the matters complained of on appeal. See Pa.R.A.P. 1925(b). "A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of.” Id. Because the trial court has addressed the issue raised on appeal, we will not consider the appellant’s neglect a waiver.

      . As amended 1988, March 25, P.L. 296, No. 35, § 2, immediately effective. The relevant subsection, entitled "Arrears as judgments,” was orginally designated as subsection (c) of section 4352. It was designated subsection (d) of section 4352 by Act No. 1989-81 on December 20, 1989.

      . The March 25, 1988 amendment added the definition of “judgment by operation of law.” Notice to the defendant and an opportunity to act are prerequisites to entry of a judgment despite the "operation of law” language. Barnes v. Barnes, 126 Pa.Cmwlth. 330, 559 A.2d 980 (1989).


text:
    588 A.2d 50
    Elizabeth M. HENRICH and Charles P. Getz, Appellants, v. HARLEYSVILLE INSURANCE COMPANIES.
    Superior Court of Pennsylvania.
    Argued Jan. 30, 1991.
    Filed March 20, 1991.
    Petition for Allowance of Appeal Granted Aug. 16, 1991.

      Soren P. West, Maryland, for appellants.
    Melinda Fisher, Lancaster, for appellee.
    Before CAVANAUGH, CIRILLO and BROSKY, JJ.
   CIRILLO, Judge:

Elizabeth M. Henrich and Charles P. Getz appeal from an order entered on July 23, 1990 granting Harleysville Insurance Companies’ (“Harleysville”) motion for judgment on the pleadings. We reverse.

On October 2, 1986, Henrich, a passenger in her friend’s uninsured motor vehicle, was injured when the vehicle veered off a road and struck a tree. At the time of the accident, Henrich owned a motor vehicle which was registered in this Commonwealth. However, since Henrich had failed to pay her premiums, her vehicle was uninsured as of October 2, 1986.

On April 19, 1986, Harleysville issued an automobile insurance policy to Getz, Henrich’s father. The insurance policy provided uninsured motorist coverage in the amount of $100,000.00 for each of three covered automobiles. The insurance agreement concerning uninsured motorist coverage provided as follows:

We will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury:
1. Sustained by a covered person; and
2. Caused by an accident.
The owner’s or operator’s liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle.

(emphasis original). Pursuant to the instant insurance contract, a “covered person” included any family member. A “family member” was defined as “a person related to you [Getz] by blood, marriage or adoption who is a resident of your household____” On the date of the accident Henrich was residing with her father Getz.

Henrich made a claim for uninsured motorist benefits against her father's policy of insurance. Harleysville denied coverage and the instant complaint was filed. At the close of the pleadings, Harleysville’s motion for judgment on the pleadings was granted and this timely appeal followed. On appeal, Henrich essentially raises one issue: whether the Motor Vehicle Financial Responsibility Law (“MVFRL”), 75 Pa.C.S. § 1701 et seq., precludes her, as the owner of an uninsured vehicle which is registered in this Commonwealth, from recovering uninsured motorist benefits pursuant to her father’s policy of insurance. Our examination of the MVFRL and relevant case law leads us to conclude that Henrich is not statutorily precluded from recovering uninsured motorist benefits.

In reviewing the grant of a motion for judgment on the pleadings we employ the same standard as the trial court. Jones v. Travelers Insurance Co., 356 Pa.Super. 213, 216-17, 514 A.2d 576, 578 (1986). Therefore, we must accept as true all well pleaded statements of fact, admissions, and any documents properly attached to the pleadings presented by Henrich, the party against whom the motion has been granted. Id. We may affirm the grant of judgment on the pleadings only where the case is so free from doubt that trial would be a fruitless exercise. Id.

Viewed in the requisite light, the facts reveal that Getz’s automobile insurance policy with Harleysville was in effect when his daughter Henrich was injured while a passenger in an uninsured motor vehicle. Getz’s insurance policy provided for uninsured motorist benefits for “covered persons.” Since Henrich was Getz’s daughter and resided with Getz, she was a “covered person” pursuant to the instant insurance policy. Nonetheless, Harleysville maintains that, pursuant to section 1714 and the underlying purpose of the MVFRL as set forth in recent decisions of this court, Henrich cannot recover any insurance benefits because she owned a registered but uninsured motor vehicle.

Section 1714 provides:

An owner of a currently registered motor vehicle who does not have financial responsibility or an operator of occupant of a recreational vehicle not intended for highway use, motorcycle, motor-driven cycle, motorized pedal-cycle or like type vehicle required to be registered under this title, cannot recover first party benefits.[ ]

75 Pa.C.S. § 1714 (emphasis added). Based upon the clear language of section 1714, this court has held that owners of uninsured, registered motor vehicles cannot recover first party benefits. See Kresge v. Keystone Insurance Co., 389 Pa.Super. 548, 567 A.2d 739 (1989) (first party benefits were denied to a claimant who neither operated nor possessed an inoperable, uninsured motor vehicle which was registered in that claimant’s name at the time of the accident); DeMichele v. Erie Insurance Exchange, 385 Pa.Super. 634, 561 A.2d 1271 (1989); Allen v. Erie Insurance Co., 369 Pa.Super. 6, 534 A.2d 839 (1987). In stern and unmistakable terms, we have stated:

A person may not receive first party benefits in Pennsylvania if at the time of the accident for which such benefits are claimed that person had any vehicles registered in Pennsylvania in that person’s name which were not insured as required.

Kresge, 389 Pa.Super. at 552, 567 A.2d at 741 (emphasis original). The decisions in Kresge, DeMichele and Allen were buttressed by the legislative intent underlying the enactment of the MVFRL:

In passing the Act, the Legislature was primarily concerned with the rising consumer cost of automobile insurance, created in part by the substantial number of uninsured motorists who contributed nothing to the pool of insurance funds from which claims were paid. See J. Ronca, L. Sloane & J. Mundy, Pennsylvania Motor Vehicle Insurance, §§ 1.2(b), 3.2(a); Senate Legislative Journal 1142-54 (Oct. 4, 1983): House Legislative Journal 2138-91 (Dec. 13, 1983). The Act has the effect of requiring all owners of registered vehicles to share in the burden of insurance before they can obtain the benefits. By denying benefits to a certain class of people — those not insuring their registered vehicles — the Act encourages the purchase of insurance by all owners who register vehicles which can be legally operated on the highways. ... As our Supreme Court has stated, “[t]he state has a legitimate object in seeing that all motorists are covered by adequate insurance.” Singer v. Sheppard, 464 Pa. 387, 404, 346 A.2d 897, 906 (1975).

Allen, 369 Pa.Super. at 10, 534 A.2d 840-841. In short, section 1714 is designed to avoid the rewarding of undesirable behavior. See 7 Am.Jur.2d § 356 (1980); 27 A.L.R.4th 176 (1984).

Relying primarily upon the above language contained in Allen, Harleysville argues that Henrieh, who owns a registered motor vehicle that is uninsured, belongs in the class of people who are not entitled to any insurance benefits. We realize that Allen stated that the effect of the Act was to require all owners to share in the burden of insurance before they can obtain the benefits. Id. It is significant, however, that Allen addressed the question of whether a claimant who owned an uninsured, registered motor vehicle could recover first party benefits. Consequently, Allen is factually distinguishable from the instant case and its holding is limited to its facts. See In re Estate of Pew, 411 Pa. 96, 191 A.2d 399 (1963) (overruled on other grounds Estate of Tyler, 474 Pa. 148, 377 A.2d 157 (1977)). Nonetheless, initially, it appears that the policies espoused in Allen would require that we preclude Henrieh from recovering uninsured motorist benefits. Upon closer examination, however, it becomes clear that Henrieh is not prohibited from recovering uninsured motorist benefits under the instant policy of insurance.

Here, Getz purchased an automobile insurance policy from Harleysville and paid Ms premiums as they became due. In return for the premiums paid, Harleysville agreed to provide uninsured motorist benefits to covered persons. Consequently, Getz shared in the burden of insurance by paying for the coverage he expected to receive — uninsured motorist benefits for covered persons. When examining the instant insurance policy, we find that Henrieh is not contractually precluded from recovering uninsured motorist benefits. Our inquiry, however, is not ended.

Turning to the MVFRL, we find that section 1714 is silent as to whether owners of uninsured, registered motor vehicles may recover uninsured motorist benefits; rather, section 1714 only precludes those claimants from receiving first party benefits. See 75 Pa.C.S. § 1714. Indeed, nowhere in the MVFRL does it state that owners of uninsured, registered motor vehicles cannot recover uninsured motorist benefits. See 75 Pa.C.S. §§ 1731-1786. The maxim “expressio unius est exclusio alterius” essentially provides that “the mention of one thing in a statute implies the exclusion of others not expressed.” Petition For Division Into Wards, Etc, 388 Pa. 539, 543, 130 A.2d 695, 698 (1957); see also Samilo v. Commonwealth Insurance Department, 98 Pa.Cmwlth. 232, 510 A.2d 412 (1986). Therefore, since section 1714 specifically states that owners of uninsured, registered motor vehicles are precluded from recovering first party benefits, our rules of statutory construction lead us to conclude that the legislature implicitly intended not to preclude that same class of claimants from recovering uninsured motorist benefits. See id.

Further, when the words of a statute are clear, the letter of that statute cannot be disregarded under the pretext of pursuing its spirit. 1 Pa.C.S. § 1921(b); Allen, 369 Pa.Super. at 11, 534 A.2d at 841. This is precisely Harleysville’s request. It is clear, however, that the legislature has fixed the penalty for the class of people who own uninsured, registered motor vehicles — precluding those claimants from recovering first party benefits. If the legislature had intended to preclude owners of uninsured, registered motor vehicles from recovering uninsured motorist benefits, it would have done so. Petition For Division, supra. In light of the legislature’s apparent intent to deny only first party benefits to owners of uninsured, registered motor vehicles, we are powerless to find that, as a matter of law, such claimants are also prohibited from recovering uninsured motorist benefits. Therefore, since we cannot find that the case is so free from doubt that trial would be a fruitless exercise, judgment on the pleadings was improperly granted. Jones, supra.

Order reversed; case remanded for proceedings consistent with this opinion.

      . We note that the term "uninsured motorist benefits" is not specifically defined in the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. § 1701 et seq.

      . First party benefits are defined as “[m]edical benefits, income loss benefits, accidental death benefits and funeral benefits.” 75 Pa.C.S. § 1702.

      . We note that in Mowery v. Prudential Property & Casualty Ins. Co., 369 Pa.Super. 494, 535 A.2d 658 (1988), the appellant challenged the constitutionality of section 1714. Specifically, the appellant maintained that she was denied equal protection of the laws because section 1714 rendered her ineligible for first party benefits, even though her registered, uninsured vehicle was not involved in the accident. Mowery, 369 Pa.Super. at 497, 535 A.2d at 660. This court, applying the "rational basis test," concluded that section 1714 did not violate equal protection. Id., 369 Pa.Superior Ct. at 502-03, 535 A.2d at 663. As such, section 1714 has withstood constitutional challenge. See id.