text:
    445 A.2d 526
    NATIONWIDE INSURANCE COMPANY and Lewis A. Johnson v. DONEGAL MUTUAL INSURANCE COMPANY, a corporation; Ruby Holly, an individual, John Koziel and Alma M. Koziel, his wife. Appeal of DONEGAL MUTUAL INSURANCE COMPANY and Ruby Holly.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1982.
    Filed May 7, 1982.

      David Harry Patterson, Pittsburgh, for appellants.
    Matthew R. Wimer, Pittsburgh, for Nationwide, et al., appellees.
    William E. Stockey, Pittsburgh, for Koziel, appellees.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   CIRILLO, Judge:

This is an appeal from an Order of the Court of Common Pleas of Allegheny County, granting a Motion for summary judgment in favor of the appellees, John and Alma Koziel.

On August 28, 1978, a collision occurred between a truck operated by Louis A. Johnson and a car operated by John R. Koziel, in which his wife, Alma M. Koziel, was a passenger. The truck was owned by Ruby Holly. As a result of this accident, the Koziels filed an Action in Trespass against Johnson and Ruby Holly. In this litigation, Ruby Holly was insured by Donegal Mutual Insurance Company, but Done-gal declined to provide a defense for Johnson. Instead, Johnson was defended by his own personal automobile carrier, the Nationwide Insurance Company. Donegal denied coverage to Johnson on the basis that he was excluded under the terms of the policy which insured Ruby Holly as the owner of the truck. During this trespass action, Nationwide and Johnson filed a Petition for Declaratory Judgment against Donegal, Ruby Holly and Koziels, alleging that at the time of the accident, Johnson operated the truck with the permission of Ruby Holly. Thus, Nationwide alleged, Donegal owed a defense to Johnson in the trespass action and the Donegal policy was primary over any and all other insurance policies. Donegal and Ruby Holly filed an Answer and New Matter, admitting that the truck had been operated by Johnson, but denying a right to coverage for Johnson. Specifically, they raised as an affirmative defense to the declaratory judgment action an exclusionary provision in the Donegal policy relating to the operation of an insured vehicle by one engaged in the repair of such vehicle. The Koziels also filed an Answer and New Matter to the Petition for declaratory judgment in which they too demanded that coverage be provided for Johnson under the Donegal policy. As the declaratory judgment action proceeded to trial, the Koziels filed a Motion for summary judgment, based on prior pleadings, including each of the relevant insurance policies, and the deposition testimony of Ruby Holly, her husband Jessie Holly, and Johnson. An Answer to the Motion was filed by all other parties. On July 2,1981, after argument before a court en banc, the Motion for summary judgment was granted. The court determined that a defense should have been provided to Johnson pursuant to the insurance policy issued by Donegal to Ruby Holly, and that the Donegal policy was primary over all other insurance policies. This appeal now follows.

The appellants, Donegal and Ruby Holly, allege on appeal that the lower court erred in granting the Motion for summary judgment and in finding that Johnson was entitled to primary insurance coverage under the policy issued to Ruby Holly.

Summary judgment is granted only in the clearest cases, where the right is clear and free from doubt. Thompson Coal Company v. Pike Coal Company, 488 Pa. 198, 412 A.2d 466 (1979). The party moving for summary judgment has the burden of demonstrating that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tom Morello Construction Company, Inc. v. Bridgeport Federal, Etc., 280 Pa.Super. 329, 421 A.2d 747 (1980). On appeal, the court must review the record in a light most favorable to the appellant. Lane v. Schacht, 260 Pa.Super. 68, 393 A.2d 1015 (1978).

At issue in this instance is whether Johnson was a “repairman” within the meaning of the exclusion contained in the Donegal insurance policy issued to Ruby Holly. On page 2 of that policy, under “Exclusions” it states:

We do not provide Liability Coverage:
6. For any person while employed or otherwise engaged in the business or occupation of selling, repairing, servicing, storing or parking of vehicles designed for use mainly on public highways, including road testing and delivery. This exclusion does not apply to the ownership, maintenance or use of your covered auto by you, any family member, or any partner, agent or employee of you or any family member.

Donegal argues that Johnson had taken the subject truck for the purpose of obtaining and installing back-up lights at the request of Ruby Holly’s husband, Jessie Holly. Therefore, Donegal maintains Johnson was engaged in the business of repairing and servicing vehicles at the time of the accident and should be excluded from coverage. However, depositions revealed that at the time of the accident, Johnson was unemployed and was on social security disability. Also, the deposition testimony is devoid of any statements indicating that Johnson was ever engaged in activity approaching the level of a “repairman” within the meaning of the Donegal policy.

It is clear that the trial court is permitted to rely on the pleadings and depositions to adjudicate a Motion for summary judgment. The Pennsylvania Rules of Civil Procedure provide:

(a) After the pleadings are closed, but within such time as not to delay trial, any party may move for summary judgment on the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits, if any.

Pa.R.C.P. No. 1035(a), 42 Pa.C.S.A.

We find that this one instance does not establish that Johnson was engaged in the business of repairing and servicing vehicles—even on a part-time basis. Johnson is therefore entitled to coverage under the Donegal policy issued to Ruby Holly.

We agree with the Honorable Raymond L. Scheib of the Allegheny Common Pleas Court who notes in his Opinion that past cases, including those cited by the appellants, involved something more than a single incident which would establish that the driver of the vehicle was involved in an automotive repair or servicing business. The rationale for excluding repairmen is that the owner of the vehicle has no control as to selection of the driver, the place where the car is driven, or the manner of driving in a situation where a car is delivered for repair. Therefore, the hazards are too great to insure against since no control over the operation of the car is maintained. (Trial Court Slip Op. at 4.)

In response to the Koziel’s Motion for summary judgment, the appellants failed to submit affidavits or any other form of support for their factual allegation that Johnson was engaged in the business of repairing or servicing vehicles. They merely rested on the allegations in their pleadings without setting forth any specific facts showing that a genuine issue existed for trial. The Pennsylvania Rules of Civil Procedure provide:

(d) Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Pa.R.C.P. No. 1035(d), 42 Pa.C.S.A.

Therefore, pursuant to Rule 1035(d), after resolving all legal questions, summary judgment was properly entered.

The appellants also allege, on appeal, that John and Alma Koziel lacked the requisite standing in this action to bring a Motion for summary judgment.

In Application of Biester, 487 Pa. 438, 409 A.2d 848 (1979), the Pennsylvania Supreme Court stated that to meet the requirement of standing, a plaintiff must allege and prove an interest in the outcome of the suit which surpasses the common interest of all citizens in procuring obedience to the law. In this instance, the Koziels have a direct and substantial interest in the controversy, namely that of ensuring the collectibility of the judgment obtained. It should also be noted that the Koziels were named defendants in the within action for declaratory judgment. Under Pa.R.C.P. Number 1035(a), 42 Pa.C.S.A., any party may move for summary judgment. The Koziels, therefore, had the requisite standing to bring this motion.

Accordingly, we affirm the Order of the court below.

      . In Brower v. Employers Liability Assurance Company, 318 Pa. 440, 177 A.2d 826 (1935), the appellant was a professional chauffeur and mechanic who did repair work at his home. While the appellant was in possession of another’s car, which was insured by the appellee, he used the car for a trip unrelated to any work being done on the car. During this trip the appellant was involved in an accident. The appellee, carrier, denied liability, based on a provision in the policy which excluded “... a repairman of automobiles, engaged in that business...” The Pennsylvania Supreme Court found that the appellant was engaged in the business of repairing automobiles and was properly excluded under the policy. See Also: Bechler v. Oliva, 400 Pa. 299, 161 A.2d 156 (1960).

      . See Paragraph 15 of the Appellants’ New Matter.


source: Caselaw Access Project

author:
JOHNSON, Judge:
      MONTEMURO, Judge,

license: Public Domain

text:
    445 A.2d 529
    COMMONWEALTH of Pennsylvania v. Jerome MAJORANA, a/k/a James J. Majorana, Appellant.
    Superior Court of Pennsylvania.
    Argued April 23, 1981.
    Filed May 7, 1982.
    Petition for Allowance of Appeal Granted Sept. 16, 1982.

      Patrick J. Flannery, Assistant Public Defender, Wilkes-Barre, for appellant.
    Joseph Giovananni, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before CERCONE, President Judge, and PRICE, SPAETH, HESTER, CAVANAUGH, WICKERSHAM, BROSKY, WIEAND, JOHNSON, MONTEMURO, POPO-VICH, DiSALLE and SHERTZ, JJ.
   JOHNSON, Judge:

Appellant and two co-defendants were charged with Rape, Indecent Assault, Unlawful Restraint and Criminal Conspiracy. At a jury trial appellant [hereinafter James] and one co-defendant [hereinafter Gerald] were convicted of Criminal Conspiracy and Unlawful Restraint. The third defendant [hereinafter Richard] was convicted of all four crimes.

This appeal by James is based on the assertion that the trial court erred in refusing to allow Richard to testify at the trial that he had engaged in consensual intercourse with the complainant earlier in the evening. The trial court refused to allow this testimony because the defendant had not filed a written motion and offer of proof of this evidence as he is required to do by the Rape Shield Law.

The charges arose out of an allegation by the complainant [hereinafter Carol] whose testimony at trial showed that at approximately 10:40 p. m. on a Sunday, she came out of a dance which she had attended with a girlfriend; she saw Richard standing beside a car; the other two defendants were inside the car; Richard asked her where she was going and she replied that she was looking for her girlfriend; Richard responded that the girlfriend had left; he then took her by the arm and put her in the back of the car which drove off, with James driving, Gerald in front, and Richard and Carol in the back seat. Richard then removed Carol’s jeans and panties and forcibly engaged in sexual intercourse with her, while Gerald held her down. Gerald then tried to climb over the seat in order to rape her, but desisted when she pushed him away.

At about midnight, having been given back her jeans by James, Carol left the car when it pulled into the parking lot of a shopping center. She then saw another car approaching, and asked the couple inside it for help. They drove her to her home. From there she went to a hospital where she was examined. Tests were taken which indicated the presence of semen and live sperm in her vagina.

The testimony proposed by Richard, during the trial but at sidebar, and excluded by the trial court, was to the effect that Richard had in the past dated Carol and engaged in consensual intercourse with her, and in particular that earlier that same evening, at the dance, Carol had asked Richard to go for a walk, and that they had gone to a parking garage where they had engaged in consensual sexual intercourse in a waiting room. The Commonwealth objected to this testimony on the grounds that under the Rape Shield Law it was irrelevant and inadmissible, particularly in view of the defendant’s failure to file a written motion pursuant to 18 Pa.C.S.A. § 3104(b).

The trial court sustained the Commonwealth’s objection to any testimony about Carol’s alleged prior sexual relationship with Richard. The court ruled that the defense could bring in whatever defense they had as to what happened in the car, but that they could not bring in “any evidence of specific acts of unchastity between the Defendants and the victim.” In excepting to the court’s ruling, the defense stated that they wanted to introduce “the fact of the intercourse as explanation as how the sperm and the semen got into the vagina.”

Trial resumed. All three defendants testified. Richard testified in some detail to his alleged dates with Carol in the past. He also testified to Carol’s having asked him to go for a walk at the dance and to their having gone into the parking garage. Richard testified that after leaving the garage he and Carol sat in the back seat of James’ car for a while playing a tape recorder; that James then returned to the car and became annoyed at their using the tape recorder; and that after that the three defendants and Carol drove around the town and on to the highway. Richard’s testimony continued to the effect that there was some animosity between James and Carol which resulted in Carol’s being asked to leave the car, which she ultimately did after they had driven back into town.

The other two defendants testified to having seen Carol talk to Richard at the dance, to having seen her leave the dance with him, and then to her sitting in the back seat of James’ car with Richard. All three testified that they drove around with Carol in the car until she left the car at James’ request. They all denied that any sexual act occurred in the car. No evidence of any sexual activity was introduced at the trial beyond Gerald’s volunteering on direct examination that his brother Richard “said that he was having sexual relations with” Carol. This statement was duly objected to by the Commonwealth, and the jury was instructed to disregard it.

Appellant’s contention is that the Rape Shield Law was erroneously applied to this case. He concedes that his offer of proof as to the earlier dating and sexual relationship was objectionable as past sexual conduct excluded by the statute. However, he argues that Richard’s “proffered testimony was not concerning the victim’s past sexual conduct with him but her consent to his actions as to the act in question. The . . . offer was that he and the victim had gone to the United Penn Parking Lot on that evening and that is where the intercourse took place. The purpose of the testimony was not to show victim’s past sexual conduct but to negate the element of force.” Brief for Appellant at 9.

Thus, appellant argues on appeal that consent was in issue. A careful review of the notes of testimony belies this argument. Nowhere did any of the defendants raise the issue of consent. Their testimony was a denial of the act complained of. Their proffered testimony was of an act which occurred at a different time, in a different place, and in different circumstances from those alleged by Carol.

What Richard said occurred (in his proffered, but excluded, testimony) and what Carol said occurred are not the same event. They are two separate incidents, whether both, either, or neither in fact occurred. Richard says that at one point in the evening Carol and he went for a walk and had sexual intercourse in a parking garage. Carol says that Richard put her in the car and, while James drove the car and Gerald held her down, Richard raped her. The charges were specifically for an act in the car. The prosecution was required to prove beyond a reasonable doubt that Carol was raped in the car. As testimony of a prior and separate incident Richard’s testimony was barred by the Rape Shield Law unless the defendants placed consent at issue and filed the § 3104(b) motion.

Appellant also argues that the testimony of the parking garage incident was needed to explain the presence of the semen and live sperm in Carol’s vagina. If there was semen deposited in Carol by Richard, as opposed to by a stranger, as a result of an earlier consensual sexual act, the same rule applies, that there was an alleged prior consensual act and a § 3104(b) motion was required.

If we were to adopt the argument of the appellant in this case, that the Rape Shield Law does not apply, the effect of such a decision would be that where a defendant in a rape case denies the alleged rape, but offers evidence of other recent sexual activity between himself and the complainant, that evidence would be admissible on the theory that it was not evidence of “past sexual conduct” within the meaning of the Rape Shield Law. Defendants in rape cases would be released from the constraints of the statute. Complainants would be exposed to the harassment of inquiry into their sexual behavior and to the likelihood of a jury biased against them and for the perpetrator of the alleged crime. A clear directive of the legislature would thereby be flouted.

The holding urged by appellant and by the dissenting opinion would emasculate the Rape Shield Law. The statute is a clear command of the legislature. The raison d’etre of rape shield statutes is partially to correct the manner in which our criminal justice system has approached the victim of a sexual assault. Commonwealth v. Strube, 274 Pa.Super.Ct. 199, 204, 418 A.2d 365, 367 (1979), cert. denied, 449 U.S. 992, 101 S.Ct. 527, 66 L.Ed.2d 288 (1980). The statute also gets rid of the covert notion that a woman who says yes once cannot then be raped. Id., 274 Pa.Super. at 205-209, 418 A.2d at 368-370.

Accordingly, we hold that Richard’s proposed testimony of the consensual intercourse in the parking garage earlier on in the evening was evidence of prior sexual conduct within the meaning of the statute, and is barred. Had the defendants chosen to place consent at issue, the statute sets forth the procedure for so doing. 18 Pa.C.S.A. § 3104(b). However, as the defendants chose merely to deny the act complained of, and not to follow the statutory procedure, the statute applies in this , situation to bar the admission of this testimony altogether.

The judgment of sentence is affirmed.

MONTEMURO, J., files a dissenting opinion in which SPAETH, CAVANAUGH, WIEAND and POPOVICH, JJ., join.

DiSALLE and SHERTZ, JJ., did not participate in the consideration or decision of this case.

MONTEMURO, Judge,

dissenting:

I must respectfully dissent. The Rape Shield Law, 18 Pa.C.S.A. § 3104, reads as follows:

(a) General rule.—Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.
(b) Evidentiary proceedings.—A defendant who proposes to offer evidence of the alleged victim’s past sexual conduct pursuant to subsection (a) shall file a written motion and other proof at the time of trial. If at the time of trial, the court determines that the motion and offer of proof are sufficient on their faces, the court shall order an in camera hearing and shall make findings on the record as to the relevance and admissibility of the proposed evidence pursuant to the standards set forth in subsection (a).

The Rape Shield Law governs the admissibility of evidence relating to the alleged victim’s past sexual conduct. The facts of this case pertain to the exception in the statute which allows testimony of the victim’s past sexual conduct with the defendant when consent is at issue. The threshold question therefore is whether Richard Nichol’s version of the events that took place in the garage constituted evidence of past sexual conduct, thereby placing him within the confines of the statute.

Richard proposed to testify that at one point in the evening, about two hours before Carol’s estimation of intercourse, he and Carol went for a walk and had sexual intercourse in a nearby parking garage. Richard’s version included the CYO dance as a backdrop to the alleged event, and the parking garage was in reasonable proximity to the car and the dance. The majority places great emphasis on the fact that the “proffered testimony was of an act which occurred at a different time, in a different place, and in different circumstances from those alleged by Carol.” Majority Opinion at 531-532. This strong statement is at best hairsplitting and at worst places undue weight on the testimony of Carol. For the purposes of determining what constitutes “past” sexual conduct, it would seem that the majority’s interpretation is much too strict and hypertechnical. A difference of two hours, in the context of the facts of this case, does not, in my opinion, render Richard’s account a past act. The doctor’s testimony established that Carol did in fact have sexual intercourse sometime that evening. Both Richard’s and Carol’s accounts include an act of sexual intercourse. Both accounts occurred generally under the same circumstances. Richard’s proposed testimony was not to be used to show that Carol was inclined to consent to having intercourse at a later time, but as a rebuttal to her version of the act of intercourse and as an explanation for the existence of the sperm in her vagina. Based on the facts of the case, I would conclude that Richard’s version was contemporaneous with Carol’s version for the purpose of defining past sexual conduct under the Rape Shield Law. I wpuld therefore conclude that the lower court erred in excluding the testimony, and accordingly, grant a new trial. My analysis would not involve the application of a per se rule regarding a time differential which would trigger coverage by the statute. Trial courts would, on an ad hoc basis examine both the time interval, and all the particular circumstances in their determination of whether proposed testimony would or would not be considered as past conduct.

Although, under the facts of this case, my interpretation of “past sexual conduct” would in and of itself require a reversal, I find it necessary to address the majority’s discussion of when “consent is at issue”. Because of the contemporaneousness of the two versions, I would find that consent was at issue. Even though Richard testified that intercourse did not occur in the car (denial vs. consent), he would have testified that he had consensual intercourse with Carol that same night. The majority states that consent was not at issue. They reason that because Richard denied the act in the car, and because his version took place at an earlier time and under different circumstances, that consent was not at issue on the night in question. They then go on to say that he could have placed consent at issue simply by raising it pretrial. This conclusion is not only contradictory, but it ignores the wording in the statute; even worse, it accomplishes exactly what the majority states they are trying to avoid—the emasculation of the Rape Shield Law. The majority comments upon the meaning of “consent at issue”.

Viewed from a procedural standpoint, the statute appears to be clearly written to allow an exception only where consent of the alleged victim is at Issue. The term “at issue” is generally understood to mean the stage in the pleadings where there is affirmation on one side and denial on the other. See Black's Law Dictionary, Fifth Edition (1979) at 114. In this criminal context, the legislature has provided ample guidance as to its meaning in the use of “at issue”. Subsection (b) of the Rape Shield Law expressly requires firstly that a defendant—in order to gain use of the narrow exception governing introduction of past sexual conduct—must file a written motion and offer of proof, and secondly the court must determine that the written motion and offer of proof are sufficient on their faces. Only after such submission and preliminary review by the court is the question of consent of the alleged victim at issue.

Majority Opinion, at 531 n.7 (Emphasis in original).

I fail to see where the legislature has provided “ample guidance” as to its meaning in the use of “at issue”. Subsection (b) of the Rape Shield Law prescribes when the motion is made and how the motion is presented. Similarly, Black’s Law Dictionary adds nothing. Lack of consent is an element of rape. It is necessarily an issue. There is always affirmation on one side and denial on the other.

The majority later comments:

In situations such as that presented by this case, the procedure should be to file the § 3104(b) motion, even though the type of situation which immediately jumps to mind as being covered by the statute is that where a defendant concedes that the sexual act complained of did in fact occur, but insists, contrary to the allegation of the complaining witness, that the act was consensual. The fact that the complaining witness had previously consented to past sexual conduct with the defendant was what would have made him think she consented on the occasion in question.

Majority Opinion at 532 n.10.

The holding urged by appellant and by the dissenting opinion would emasculate the Rape Sheild Law. The statute is a clear command of the legislature . . .

Majority Opinion at 532.

The majority’s conclusion that a defendant may avail himself of the exception of the Rape Shield Law even though he denies the act complained of renders the phrase in the statute, “where consent of the alleged victim is at issue,” either totally meaningless or redundant. My perception of the phrase is the one that the legislature most certainly envisaged; that the testimony may be brought in only when the defendant admits the act of intercourse, but claims that the victim consented. See Commonwealth v. Strube, 274 Pa.Super. 199, 418 A.2d 365 (1979), cert. denied 449 U.S. 992, 101 S.Ct. 527, 66 L.Ed.2d 288 (1980).

The majority has tortured the facts and has erroneously applied the law to affirm the conviction in this case. In doing so, they have simply made bad law.

I therefore dissent.

      . The Crimes Code, Act of December 6, 1972, P.L.1482, No. 334, § 1; 18 Pa.C.S.A. § 3121 (Purdon 1973).

      . 18 Pa.C.S.A. § 3126.

      . 18 Pa.C.S.A. § 2902.

      . 18 Pa.C.S.A. § 903.

      . 18 Pa.C.S.A. § 3104, as amended by the Act of May 18, 1976, P.L.120, No. 53, § 1, provides:
      § 3104. Evidence of victim’s sexual conduct

      (a) General rule.—Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.
      (b) Evidentiary proceedings.—A defendant who proposes to offer evidence of the alleged victim’s past sexual conduct pursuant to subsection (a) shall file a written motion and offer of proof at the time of trial.
      If, at the time of trial, the court determines that the motion and offer of proof are sufficient on their faces, the court shall order an in camera hearing and shall make findings on the record as to the relevance and admissibility of the proposed evidence pursuant to the standards set forth in subsection (a).

      . 18 Pa.C.S.A. § 3104(b), see note 5 supra, provides that a defendant who proposes to offer evidence of the alleged victim’s past sexual conduct with him must file a written motion and offer of proof at the time of trial.

      . Viewed from a procedural standpoint, the statute appears to be clearly written to allow an exception only where consent of the alleged victim is at issue. The term “at issue” is generally understood to mean the stage in the pleadings where there is affirmation on one side and denial on the other. See Black’s Law Dictionary, Fifth Edition (1979) at 114. In this criminal context, the legislature has provided ample guidance as to its meaning in the use of “at issue”. Subsection (b) of the Rape Shield Law expressly requires firstly that a defendant—in order to gain use of the narrow exception governing introduction of past sexual conduct—must file a written motion and offer of proof, and secondly the court must determine that the written motion and offer of proof are sufficient on their faces. Only after such submission and preliminary review by the court is the question of consent of the alleged victim at issue.

      The exception to the bar of the Rape Shield Law is evidence of the “victim’s past sexual conduct with the defendant.” There is no allegation of Carol’s past sexual conduct with James Majorana. He is therefore not “the defendant” referred to in that part of 18 Pa.C.S.A. § 3104(a). But we do not here consider whether James may therefore escape the bar of the Rape Shield Law. Richard Nichol, who is “the defendant” who sought to testify as to Carol’s past sexual conduct with himself, did not comply with 18 Pa.C.S.A. § 3104(b).

      . The statute excludes testimony sought to be introduced for that purpose. See Commonwealth v. Duncan, 279 Pa.Super.Ct. 395, 421 A.2d 257 (1980), where this court held that a statutory rape victim’s prior sexual conduct was not admissible to show her bias against the defendant.
      In the case before us, defense counsel cross-examined the expert medical witnesses as to how long sperm could live. They testified that sperm could live up to six or eight hours. The jury could then draw whatever inferences were suggested by this testimony; for example, that she was not raped as she claimed, and that the sperm came from another sexual act that evening.

      . Commentators have raised the question of the need to explain the presence of semen (or venereal disease or pregnancy) in an alleged rape victim where the defendant, denying the charge, claims that this was the result of the victim’s sexual activity with another man. See Tanford & Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U.Pa.L.Rev. 544, 584-85 (1980); Berger, Man’s Trial, Woman’s Tribulation: Rape Cases in the Courtroom, 77 Colum.L. Rev. 1, 57-58 (1977); Rudstein, Rape Shield Laws: Some Constitutional Problems, 18 Wm. & Mary L.Rev. 1, 39 (1976); Note, Indiana’s Rape Shield Law: Conflict with the Confrontation Clause? 9 Ind.L. Rev. 418 (1976).

      . In situations such as that presented by this case, the procedure should be to file the § 3104(b) motion, even though the type of situation which immediately jumps to mind as being covered by the statute is that where a defendant concedes that the sexual act complained of did in fact occur, but insists, contrary to the allegation of the complaining witness, that the act was consensual. The fact that the complaining witness had previously consented to past sexual conduct with the defendant was what would have made him think she consented on the occasion in question.

      . See Tanford & Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U.Pa.L.Rev. 544 (1980); Rudstein, Rape Shield Laws: Some Constitutional Problems, 18 Wm. & Mary L.Rev. 1 (1976); Note, The Victim in a Forcible Rape Case: A Feminist View, 11 Am.Crim.L.Rev. 335 (1973).

      . We must keep in mind that the discussion should focus on admissibility not credibility.

      . The majority states that the prosecution specifically was required to prove beyond a reasonable doubt that Richard raped Carol in the car, and they treat any other version as a separate incident. The majority’s analysis takes the allegation as a fact and then proceeds to point out how Richard’s version differs from Carol’s. We are not determining sufficiency of the evidence. We are determining admissibility of the evidence and for that purpose we should not base a decision on fine lines as to matters of credibility. The majority states, “They are two separate incidents, whether both, either, or neither in fact occurred.’’ Majority Opinion at 531 (Emphasis added). The majority’s analysis belies that supposition.

      . Because the error may have contributed to the conviction, the error was not harmless. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).

      . 18 Pa.C.S.A. 3121.

      . Here Richard is claiming that he had consensual intercourse with Carol, albeit at a different place and at a different time. Under our analysis, Richard’s version of intercourse was contemporaneous with Carol’s version for the purpose of placing consent at issue. She says, and he denies, that it happened in the car. Clearly, if he had sought to introduce past sexual conduct with Carol allegedly occurring on their previous dates, the § 3104(b) motion would have been necessary.


author: JOHNSON, Judge:

text:
    445 A.2d 535
    MARYLAND CASUALTY COMPANY, Appellant, v. CAROLINA CASUALTY INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Oct. 13, 1981.
    Filed May 7, 1982.
    Petition for Allowance of Appeal Denied Nov. 5, 1982.

      George I. Buckler, Pittsburgh, for appellant.
    Robert B. Truel, Pittsburgh, for appellee.
    Before HESTER, JOHNSON and MONTEMURO, JJ.
   JOHNSON, Judge:

Appellant brings this appeal from a judgment entered January 7, 1981, denying its motion for summary judgment and granting a motion for summary judgment in favor of appellees. Three issues are raised on this appeal. The first issue is whether granting of summary judgment was appropriate in an action to recover an amount from appellees expended by appellant to settle an underlying action. The second issue is whether the parol evidence rule bars the introduction of certain evidence in determining the meaning of certain clauses in the insurance policies. The final issue presented here is in what proportions the parties should contribute in the settlement of an underlying lawsuit.

On September 17, 1975, Jesse John Miller, Jr. was struck and killed by a truck leased to Fisher Scientific Company. Appellant, Fisher Scientific’s insurer, subsequently settled an action brought by the Administratrix of the Estate of the deceased in the amount of $85,000. The truck was owned by Continental Leasing Company. Appellee was the insurance carrier for Continental Leasing. Appellant thereafter commenced an action in assumpsit against appellee for recovery of the $85,000 it paid in the settlement action.

The language of the policies in question is quite clear. Appellant’s policy defines the vehicles to which it affords primary coverage, under the heading of owned automobiles, as

A. All owned or hired vehicles, per schedule on file with Maryland.
B. Any replacements or additions during the term of the policy.

This portion of the agreement is typed in among the boilerplate language. As between typewritten and printed provisions, typewritten provisions are controlling. C. H. Heist Caribe Corp. v. American Home Assurance Co., 640 F.2d 479 (3rd Cir. 1981). Giving plain meaning to the terms would result in an interpretation that a vehicle leased for a few days would constitute “an addition or replacement” under the terms of the policy. The leased tractor and subsequent accident would therefore be covered primarily under appellant’s policy.

The appellee’s policy contains a Truckmen’s Endorsement clause which effectively denies coverage for a hired or leased vehicle unless it is being used exclusively within the business and control of the insured, i.e. Continental Leasing. A Truckmen’s Endorsement clause on a policy is intended to place responsibility on the lessee’s carrier. Allstate Insurance Co. v. General Fire and Casualty Co., 348 F.Supp. 682 (E.D.Pa.1972). Under facts precisely the same, the court granted summary judgment in favor of the defendant in Transportation Indemnity Co. v. Home Indemnity Co., 535 F.2d 232 (3rd Cir. 1976), holding that a Truckmen’s Endorsement clause would supersede any apparent coverage extended to the lessee of a truck by the comprehensive automobile liability provision in the lessor’s policy defining persons insured as including any person using a hired vehicle. The lessor’s policy would subsequently afford only excess coverage to claims. Under the Truckmen’s Endorsement clause in appellee’s policy, the coverage provided for the truck and accident would be excess coverage.

The order of the lower court denying appellant’s motion for summary judgment and granting appellee’s motion for summary judgment was proper. The extent of insurance coverage could be determined from the four corners of the policies. No other issues of material fact existed. Since appellant’s second and third issues, relating to the admission of parol evidence and the amounts to be respectively contributed by each insurance company, are dependent upon the summary judgment issue, we find that these issues also lack merit.

For the foregoing reasons, the judgment is affirmed.


author: POPOVICH, Judge:

text:
    445 A.2d 537
    COMMONWEALTH of Pennsylvania v. Wilbur WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 10, 1981.
    Filed May 7, 1982.

      Owen W. Nash, Assistant Public Defender, Media, for appellant.
    Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.
    Before SPAETH, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

This is a direct appeal from the judgment of sentence imposed after appellant, Wilbur Williams, was convicted by a jury of burglary and theft. Appellant’s sole contention on appeal is that his right to a speedy trial under Pa.R.Crim.P. 1100 was violated. We disagree and affirm the judgment of sentence.

The facts pertinent to our consideration of the instant appeal are as follows:

On August 25,1979, a criminal complaint was filed against appellant in Delaware County charging him with burglary and related offenses. The Commonwealth therefore had 180 days from the filing of the complaint, or until February 21, 1980, to bring appellant to trial. Since appellant was not tried until July 21, 1980, 331 days after the complaint was filed, the time beyond the prescribed period either must be excluded from the 180 day computation, Pa.R.Crim.P. 1100(d), or justified by an order granting an extension pursuant to the terms of the rule, Pa.R.Crim.P. 1100(c). Commonwealth v. Snyder, 280 Pa.Super. 127, 130, 421 A.2d 438, 439 (1980).

On the date the criminal complaint was filed, August 25, 1979, appellant was arrested, bail was posted, and appellant was notified to appear in court on September 4, 1979, for a preliminary hearing. Appellant then failed to appear at the hearing and a bench warrant was issued. Appellant’s bail was forfeited and a forfeiture notice was sent to the address given by appellant when bail was posted. The notice was returned marked “attempted not known.” On February 5, 1980, the Commonwealth mailed notification of appellant’s listing for trial to the same address and this notice was returned marked “moved.” Appellant then failed to appear on February 12, 1980, the date he was scheduled for trial.

On January 17, 1980, more than four months after the scheduled preliminary hearing in Delaware County, appellant was arrested in Philadelphia County on unrelated charges and placed in the Philadelphia Detention Center.

Unaware of appellant’s incarceration in Philadelphia County, the Delaware County District Attorney’s Office filed a petition to extend the period for commencement of trial, asserting appellant’s failure to appear for trial as the basis of its request. Notice of the extension petition was mailed to appellant’s given address and also to the Public Defender’s Office. On March 19, 1980, at the conclusion of an ex parte hearing, the court below granted the Commonwealth’s application and entered an order extending the commencement of trial “for a period of 120 days after the receipt by the Office of the District Attorney of Delaware County of notice that the defendant is lodged in a Pennsylvania institution.”

The Commonwealth then received notice of appellant’s incarceration in Philadelphia County on March 31, 1980, and the outstanding bench warrant was changed to a detainer. On April 29,1980, appellant was transferred from the Philadelphia Detention Center to Delaware County. Following the denial of two petitions to dismiss under Pa.R.Crim.P. 1100(f), appellant’s trial commenced on July 21, 1980.

Appellant now contends that his right to a speedy trial under Pa.R.Crim.P. 1100 was violated. More specifically, appellant argues that because the Commonwealth failed to exercise the requisite due diligence under Pa.R.Crim.P. 1100(c) prior to applying for its extension, the Commonwealth must be charged with having constructive notice of appellant’s incarceration in Philadelphia County as of March 19, 1980, the date the extension order was granted. Hence, appellant argues, the Commonwealth’s 120 day extension ran four days prior to the commencement of his jury trial and thereby entitles him to a discharge. This contention is ludicrous.

To begin with, it is well-settled that a criminal defendant who accepts the status of bail during the pendency of court proceedings assumes the responsibility of full compliance with the conditions of bail:

When a person is admitted to bail, the conditions of the bail bond shall be that such person will:
(a) Appear before the issuing authority or court at all times required until full and final disposition of the case;
(c) give written notice to the issuing authority, the clerk of courts, the district attorney, and court bail agency or other designated court bail officer, of any change of address within forty-eight (48) hours of the date of such change. . . .

Pa.R.Crim.P. 4013

Accordingly, our Supreme Court has stated that a criminal defendant on bail who willfully absents himself from a proceeding of which he had notice is precluded from relying on the concept of due diligence afforded by the speedy trial guarantee.

[A] defendant on bail who fails to appear at a court proceeding, of which he has been properly notified, is unavailable from the time of that proceeding until he is subsequently apprehended or until he voluntarily surrenders himself. In such a case the Commonwealth is entitled to an exclusion of this period under [Pa.R.Crim.P. 1100(d)(1) ] without the requirement of a showing of its efforts to apprehend the defendant during the period of his absence. Commonwealth v. Cohen, 481 Pa. 349, 356, 392 A.2d 1327, 1331 (1978).

Instantly, appellant willfully failed to appear at his preliminary hearing despite notice that it was scheduled for September 4, 1980, and thereby violated the conditions of Pa.R.Crim.P. 4013(a). Moreover, appellant failed to notify the Commonwealth of his change of address upon his incarceration in Philadelphia County as required by Pa.R.Crim.P. 4013(c). See Commonwealth v. Henry, 290 Pa.Super. 309, 310-11, 434 A.2d 767, 768 (1981). Hence, we now will not permit appellant to benefit from his own wrongdoing by charging the Commonwealth with constructive notice of his whereabouts as of March 19, 1980, because of its alleged failure to exercise due diligence prior to applying for the 120 day extension granted on that date. Rather, for purposes of speedy trial analysis, we find that appellant was unavailable from the date he voluntarily absented himself from his preliminary hearing until his return to Delaware County. Any finding to the contrary “would permit a defendant who intentionally absented himself from a scheduled court hearing to have the charges against him dismissed if the Commonwealth’s efforts to locate him did not measure up to a court’s standard of due diligence. Such a result [obviously would be] absurd.” Commonwealth v. Cohen, 481 Pa. at 355, 392 A.2d at 1331.

The Commonwealth, therefore, is entitled to exclude under Pa.R.Crim.P. 1100(d)(1) the period from September 4, 1979, until April 29,1980, a total of 239 days. See Commonwealth v. Henry, supra. It follows then, that appellant was brought to trial 92 days after the complaint was filed against him and, therefore, the Commonwealth is in compliance with Pa.R.Crim.P. 1100.

Judgment of sentence affirmed.

      . Pa.R.Crim.P. 1100(a)(2) mandates that: “Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.” For purposes of this appeal, we cite the applicable provisions of Pa.R.Crim.P. 1100 as they appeared prior to the Rule’s amendment on October 22, 1981.

      . Pa.R.Crim.P. 1100(d) provides:
      In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from:
      (1) the unavailability of the defendant or his attorney;
      (2) any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be so excluded;

      . Section c, Pa.R.Crim.P. 1100 states:
      At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. A copy of such application shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon. Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order granting such application shall specify the date or period within which trial shall be commenced.

      . This petition was filed pursuant to Pa.R.Crim.P. 1100(c). See note 3 supra.

      . The Commonwealth correctly contends that appellant’s failure to file a written answer to its petition to extend and his failure to appear at the evidentiary hearing on the petition constitutes a waiver of his right to contest the extension. See Commonwealth v. Stickle, 269 Pa.Super. 419, 422, 410 A.2d 327, 328 (1979). Instantly, however, appellant does not challenge the validity of the extension; rather, he contends that the Commonwealth’s 120 day extension ran four days prior to the commencement of his trial.


author: POPOVICH, Judge: SPAETH, Judge

text:
    445 A.2d 540
    Bernadine DOUGLAS, Administratrix of the Estate of Mark Douglas, Deceased v. Lavon A. EVANS, Administratrix of the Estate of George Evans, Thomas E. Conti and Philip Iorio. APPEAL OF HENKELMAN, KREDER, O’CONNELL & BROOKS and Ralph J. Johnston, Jr., Esquire.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1981.
    Filed May 7, 1982.
    Petition for Allowance of Appeal Granted Sept. 30, 1982.

      Lucille Marsh, Scranton, for appellants.
    Joseph J. Musto, Wilkes-Barre, for Douglas, Conti and lorio, appellees.
    John R. Lenahan, Sr., Scranton, for Evans, appellee.
    Before SPAETH, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

This appeal arises from the trial court’s order denying counsels’ leave to withdraw their appearance in a wrongful death and survival action per the instructions of United Services Automobile Association, counsels’ employer and client. We affirm.

The facts which prompted the filing of the petition to withdraw as summarized by the court below reveal the following:

A policy of automobile liability insurance was issued to defendant, Philip lorio, by United Services Automobile Association. Appellants, the law firm of Henkelman, Kreder, O’Connell & Brooks, and Ralph J. Johnston, Jr. of Harris, Johnston, and Kennedy, entered their appearance on behalf of the defendant because of an automobile accident which occurred on July 22, 1979. On September 24, 1980, an answer and new matter were filed by appellants on defendant’s behalf as instructed by the insurance company. After the company conducted an investigation, it concluded that the insurance policy at issue was not in effect on the date of the accident and instructed appellants to withdraw their appearance. As a result, a petition to withdraw was filed on November 28, 1980. The defendant, however, disputed the insurance company’s contention in an answer filed on his behalf by Sandor Yelen, Esquire. Oral arguments and briefs were entertained by the court.

Subsequently, the trial court denied appellant’s petition to withdraw and concluded that “the insurer ha[d] waived the right to raise the issue of coverage at this time.” Slip Opinion at 4.

The trial court based its decision on the fact that the insurer waited some sixteen months after the accident in order to withdraw from the case and after it had directed appellants to file an appearance, an answer, and new matter. Additionally, the court found that the company offered no explanation as to why the company “took this length of time to make the determination [of coverage] which, on its face, d[id] not appear complicated.” Slip Opinion at 4. The court also noted that but for the decision of the insurance company to withdraw from the case, the appellants would continue to represent the company. Accordingly, the petition to withdraw was denied. A petition for reconsideration also was denied, and this appeal followed.

In this appeal, appellants contend that an attorney may withdraw an appearance “when instructed to do so by the insurance carrier.” Brief for Appellant at 6. (Emphasis added). We cannot agree.

The question of whether an attorney should be permitted to withdraw an appearance is within the discretion of the trial court and will not be disturbed absent an abuse of discretion. See Phoenix Mut. Life Ins. Co. v. Radcliffe on the Delaware, Inc., 439 Pa. 159, 266 A.2d 698 (1970); C. E. Williams Co. v. Henry B. Pancoast Company, 412 Pa. 166, 194 A.2d 189 (1963).

We also have recognized the following:

“an insurance company’s continued participation in the defense of its insured’s case operates as a waiver of its right to subsequently raise the question of coverage.” Cohen Appeal (Schmittinger v. Grogan), 182 Pa.Super. 399, 406, 128 A.2d 114, 117-118 (1956). (Citations omitted) (Emphasis added). See also Brugnoli v. United Nat. Ins. Co., 284 Pa.Super. 511, 517 ftn. 5, 426 A.2d 164, 167 ftn. 5 (1981).

After a careful review of the record, we have concluded that the trial court did not abuse its discretion in refusing appellants application to withdraw from the case. See GoodrichAmram 2d § 1012:3.1 (“if the application [to withdraw] is so long delayed that prejudice will result, withdrawal may be refused.”) As the trial court aptly stated:

“the insurer has waived the right to raise the issue of coverage at this time. This imposes no great injustice on the insurance carrier. When an insurer promptly disclaims, the insured may institute proceedings against the insurer in the event a verdict is entered against him for such losses as are suffered as a result of the disclaimer. Here, when the disclaimer is waived by the conduct of the insurer, the question of the propriety of the disclaimer may be adjudicated if, in fact, a verdict is rendered against their insured. Surely, in either event, i.e., if a verdict is or is not entered against their insured, the insurer would bear the expense of the representation of the defendant but this is the consequence they must bear when they pursue the course taken in this action.
Furthermore, they have prejudiced the rights of the insured who would now have to retain new counsel who would have to investigate the accident, review the pleadings, engage in discovery proceedings and such other matters as may be necessary to provide a proper defense for the defendant.
At this late date the insurance carrier should not be permitted to direct their counsel, the present petitioners, to withdraw their appearance.” Trial Court Opinion at 4-5. (Emphasis added).

Under these circumstances, there is no basis for disturbing the trial court’s resolution of the withdrawal issue.

Order of the court is affirmed.

MONTGOMERY, J., concurs in the result.

SPAETH, J., files dissenting opinion.

SPAETH, Judge

dissenting:

Although it is true that an insurance company’s continued participation in the defense of its insured may operate as a waiver of its right to later deny coverage, Cohen Appeal, 182 Pa.Super. 399, 406, 128 A.2d 114 (1956), I am not certain that the insurance company in this case did engage in such “continued participation.” The majority, like the lower court, “base[s] its decision on the fact that the insurer waited some sixteen months after the accident in order to withdraw from the case and after it had directed appellants to file an appearance, an answer, and new matter.” At 541. But as appellant argues, and I think persuasively, the relevant time period is not sixteen but three months, starting when appellant was retained by the insurer and ending with the filing of the petition to withdraw. Appellant’s Brief at 8. I should therefore remand for a hearing to determine whether prejudice occurred within that period. If the lower court found that prejudice did occur, appellant would be estopped from raising the question of coverage. If the lower court found no prejudice, the issue of coverage would have to be decided.

The case should be remanded for further proceedings.

      . Furthermore, this Court does not approve of the tactics which were employed by the insurance company in the instant case. Although the insurance company disputes the trial court’s finding that it delayed more than sixteen months from the date of the accident before requesting the court for permission to withdraw, the insurer has offered no explanation for the delay involved in filing the petition.


author: HOFFMAN, Judge:

text:
    445 A.2d 542
    Richard H. YOUNG, Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1980.
    Filed May 7, 1982.
    Petition for Allowance of Appeal Granted Oct. 8, 1982.

      Fred Lowenschuss, Philadelphia, for appellant.
    David E. Faust, Philadelphia, for appellee.
    Before SPAETH, BROSKY and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in modifying an arbitration award to deny him recovery under the uninsured motorist provisions of insurance policies issued by appellee. We disagree and, accordingly, affirm the order of the court below.

Appellant was injured on March 24,1976 when his motorcycle was struck by an automobile. Because appellant’s losses exceeded the $15,000 policy limits paid by the automobile-driver’s insurer, appellant filed a claim for benefits pursuant to the uninsured motorist provisions of his and his parents’ insurance policies. He alleged that the exhaustion of the other driver’s liability coverage without full compensation of his losses rendered that driver “uninsured” within the meaning of the provisions, so that he could “stack” the coverage under his and his parents’ insurance policies on four vehicles, and thus receive up to $60,000. See State Farm Mutual Insurance Co. v. Williams, 481 Pa. 130, 392 A.2d 281 (1978). An arbitration panel agreed and awarded appellant $43,295.35. The lower court, however, reversed the arbitrator’s award, holding that a driver covered by the statutory minimum amount of insurance was not an “uninsured motorist” for purposes of the policies. This appeal followed.

Appellant contends the lower court exceeded its permissible scope of review in modifying the arbitrators’ award for an error of law. We disagree. The arbitration here was conducted pursuant to the Arbitration Act of April 25, 1927, P.L. 381, No. 248, as amended, 5 P.S. §§ 161-181 (repealed). Although “[a] commonlaw arbitration award is not reviewable on the basis of error of law or fact by the arbitrators,” the lower court’s scope of review under the Arbitration Act is the same as that upon a petition for judgment notwithstanding the verdict of a jury, and thus the court is empowered to correct the award for a mistake of law. Runewicz v. Keystone Insurance Co., 476 Pa. 456, 461, 383 A.2d 189, 191 (1977). Accord, 5 P.S. § 171(d); White v. Concord Mutual Insurance Co., 296 Pa.Superior Ct. 171, 179, 442 A.2d 713, 717 (1982). “The Arbitration Act does not apply unless it is expressly or impliedly provided for by the parties and its procedures are followed.” Runewicz v. Keystone Insurance Co., supra, 476 Pa. at 460, 383 A.2d at 191. An endorsement to the insurance policies here specifically provided that arbitration of the uninsured motorist provision would be “pursuant to the provisions of the [Arbitration Act].” An endorsement will be considered part of the insurance contract if it appears that “the parties intended that it should be so considered,” and if its provisions are such as may be.added by an endorsement under applicable statutes on law. 1 Couch on Insurance 2d, § 4:32 (1959 & Supp.1980). Although appellant never signed the endorsement, and contends that he did not receive it, the endorsement was nevertheless effective because it had been issued and signed by the insurer as required by the policy. Consequently, the arbitrators and the lower court properly concluded that this arbitration was pursuant to the Arbitration Act and followed its procedures. The lower court was thus empowered to correct the arbitrators’ award for an error of law.

Appellant contends that the arbitrators’ award holding that an “underinsured” motorist could be considered an “uninsured” motorist was not an erroneous application of the law. We disagree. This Court has recently held as a matter of law that an “underinsured” motorist who is nonetheless covered by the statutory minimum amount of insurance is not an “uninsured” motorist under an insurance policy such as appellant’s. White v. Concord Mutual Insurance Co., supra; Davis v. Government Employees Insurance Co., 296 Pa.Superior Ct. 198, 442 A.2d 727. Consequently, the lower court properly held the arbitrators’ award to the contrary to be mistaken on the law and subject to modification. Therefore, it properly reversed the arbitrators’ award.

Order affirmed.

      . We postponed decision of this case pending our Court’s en banc resolution of White v. Concord Mutual Insurance Co., 296 Pa.Superior Ct. 171, 442 A.2d 713 (1982), and Davis v. Government Employees Insurance Co., 296 Pa.Superior Ct. 198, 442 A.2d 727 (1982).

      . “A party that proceeds to arbitration without objecting that the matter at issue is outside the arbitration agreement waives that objection,” and binds itself to accept the arbitrators’ award subject only to the appropriate standard of judicial review. White v. Concord Mutual Insurance Co., supra, 296 Pa.Super. at 179, 442 A.2d at 717.

      . The policy provided:
      8. Changes .... nor shall the terms of this policy be waived or changed, except by endorsement issued to form a part of this policy signed by an authorized representative of [appellee].
      We note also that, at the time it was issued, the endorsement for arbitration under the Arbitration Act was evenhanded in its effect and not such a change in benefits as to require appellant’s express consent. Cf. Murray v. John Hancock Mutual Life Insurance Co., 165 Pa.Superior Ct. 514, 69 A.2d 182 (1949). (change in benefits required express consent).


text:
    445 A.2d 544
    COMMONWEALTH of Pennsylvania v. William W. BAKER, Appellant.
    Superior Court of Pennsylvania.
    Argued April 29, 1981.
    Filed May 7, 1982.

      Joseph B. Policicchio, Somerset, for appellant.
    Raymond J. Zadzilko, Assistant District Attorney, Ebensburg, for Commonwealth, appellee.

      Before CERCONE, President Judge, and BROSKY and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant was convicted of homicide by vehicle, driving while under the influence of alcohol, and the summary offense of meeting a vehicle proceeding in the opposite direction as a result of a two-car collision in Somerset County. On this appeal, he alleges several errors by the lower court. For the reasons that follow, we reverse appellant’s conviction for homicide by vehicle, and affirm in all other respects.

On January 19, 1979, at approximately 10:30 p. m., appellant left the home of a friend after consuming eight 12-ounce cans of beer in less than three hours. Shortly thereafter, as he was headed south on Route 280, appellant’s automobile crossed the center line of the highway and crashed head-on into the automobile driven by Herbert L. Ringler. Mr. Ringler was pronounced dead at the scene. Appellant was taken to Somerset Community Hospital for treatment of several facial injuries, where, at police request, he consented to a blood test to determine his blood alcohol content. The test results indicated that appellant’s blood alcohol level was .32. Appellant was later charged with homicide by vehicle, driving while under the influence of alcohol, and meeting a vehicle proceeding in the opposite direction. Following his conviction on all charges, the denial of post-trial motions, and the imposition of sentence, appellant took this appeal.

Appellant contends first that the lower court erred in failing to suppress the results of his blood test. We disagree. The Commonwealth must show by a preponderance of the evidence that the challenged evidence is admissible. Pa.R.Crim.P. 323(h); Commonwealth v. Brown, 473 Pa. 562, 566, 375 A.2d 1260, 1262 (1977). In reviewing a suppression court’s ruling, we must determine whether the record supports its findings of fact, inferences, and conclusions of law. Commonwealth v. Brown, supra, 473 Pa. at 566, 375 A.2d at 1262; Commonwealth v. Goodwin, 460 Pa. 516, 521, 333 A.2d 892, 895 (1975). When a suppression court denies the motion, we “will consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole remains uncontradicted.” Commonwealth v. Brown, supra, 473 Pa. at 566, 375 A.2d at 1261. See Commonwealth v. Kichline, 468 Pa. 265, 280, 361 A.2d 282, 290 (1976). Read in this light, the testimony at the suppression hearing reveals that appellant’s automobile unexpectedly crossed the center line of the highway and crashed into Mr. Ringler’s automobile. At the hospital, the investigating officer found appellant to be conscious and coherent, but with bloodshot eyes, an unsteady gait, and the strong smell of alcohol on his breath. The officer requested that appellant submit to a blood test, and informed him of the penalty for noncompliance. Appellant consented both orally and in writing. The nurse and attending physician testified that appellant was alert and aware when he gave consent to the test. The treating physician opined that there was no reason why appellant would not remember the events at the hospital. We are satisfied that the record adequately supports the suppression court’s finding of consent. Cf. Commonwealth v. Webb, 491 Pa. 329, 421 A.2d 161 (1980) (testimony of police officers and medical personnel concerning defendant’s alertness, coherence, and apparent lack of distress and discomfort established that the statement was voluntarily given).

Appellant contends next that the trial judge should have recused himself because he had presided at the suppression hearing. We disagree. Appellant was not prejudiced by the actions of the judge. The evidence adduced at the suppression hearing did not concern the summary offense of which the judge was the sole trier of fact. As to the remaining offenses, the jury was the sole trier of fact. See Commonwealth v. Pettiford, 265 Pa.Superior Ct. 466, 469, 402 A.2d 532, 533 (1979). Appellant’s vague assertions that the trial judge’s dual role may have influenced his evidentiary rulings and jury instructions are simply unsupported by the record and patently frivolous.

Appellant contends next that the lower court erred in not granting his demurrer to the charge of driving while under the influence of alcohol. “In ruling on a demurrer, the proper test to be applied by the trial court is whether the Commonwealth’s evidence and all reasonable inferences therefrom is sufficient to support a finding by the trier of fact that the accused is guilty beyond a reasonable doubt.” Commonwealth v. Wimberly, 488 Pa. 169, 171, 411 A.2d 1193, 1194 (1979). See also Commonwealth v. Matsinger, 288 Pa.Superior Ct. 271, 431 A.2d 1043 (1981). Appellant consumed eight cans of beer in less than three hours. His automobile crossed the center line of the highway without reason and crashed into the victim’s vehicle. His blood alcohol level two hours after the accident was extraordinarily high at .32. See 75 Pa.C.S.A. § 1547(d)(3) (.10 raises the rebuttable presumption of intoxication). His eyes were bloodshot, his walk staggered, and he reeked of alcohol. We are satisfied that the evidence was more than sufficient to justify the lower court’s ruling.

Appellant contends finally that the opinion of the lay county coroner was, as a matter of law, insufficient to prove that Mr. Ringler had died as a result of the accident. We agree. Homicide by vehicle is defined in 75 Pa.C.S.A. § 3732 as:

Any person who unintentionally causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic is guilty of homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death.

Our Supreme Court has held that the legislature, in enacting this section, intended to “expand the scope of criminal liability for violations of the Vehicle Code causing death.” Commonwealth v. Field, 490 Pa. 519, 525 n.4, 417 A.2d 160, 163 n.4 (1980). “This legislative ‘expansion’ was accomplished not by the elimination of any of the elements of the crime of involuntary manslaughter, but by a relaxation of the degree of proof of two existing elements: culpable conduct and causation.” Commonwealth v. Houtz, 496 Pa. 345, 348, 437 A.2d 385, 387 (1981). As in involuntary manslaughter, the Commonwealth must establish that the victim died, and that his death was a result of injuries sustained in the incident or of a chain of events stemming from the incident in order to prove homicide by vehicle. Unlike involuntary manslaughter, however, the Commonwealth need then only show that “the actor ‘knew or should have known,’ that he engaged in the conduct claimed to be in violation of the Vehicle Code and that at the very least, death was a ‘probable consequence’ of the conduct.” Id. Thus, although the homicide by vehicle statute lessens the Commonwealth’s burden of proving that the defendant’s illegal conduct was the legal cause of the victim’s death, the Commonwealth must still prove beyond a reasonable doubt that death occurred as a result of injuries received in the incident or of a chain of events stemming from the incident. If the Commonwealth fails to prove any one of the elements, it has not established homicide by vehicle.

We find that the Commonwealth has failed to prove beyond a reasonable doubt that the victim died as a result of injuries received in the accident or of a chain of events stemming from the accident. The only evidence as to the cause of death was the opinion of the lay county coroner. He testified that he was called to the scene by the investigating officer, and preliminarily “checked as best I could at the scene in the darkness that he died of a fracture of the skull.” (N.T. October 22,1979 at 8). He then stated that he believed the cause of death to be fractures of the skull and neck and crush injuries to the chest. (Id. at 14). He did not give any indication as to how he reached his conclusion except for his preliminary examination on the scene. He did not hold an inquest, nor order an autopsy by a certified' pathologist despite his belief that Mr. Ringler had suffered a “violent or suspicious” death.

If, upon the investigation by the coroner, he shall not be satisfied thereby that the death resulted from natural causes, or by suicide, he shall proceed to conduct an inquest upon a view of the body as provided by law. In the conduct of the inquest, the coroner may require such an autopsy as may be necessary in accordance with law. At the inquest the coroner’s duty shall be to ascertain the cause of death and whether any person other than the deceased was criminally responsible therefor by act or neglect, and, if so, the identity of the person and any further evidence and witnesses regarding the crime.

Act of August 9, 1959, P.L. 323, § 1238, 16 P.S. § 1238. Although an autopsy is not required in every case, Commonwealth v. Haley, 359 Pa. 477, 59 A.2d 62 (1948), the Commonwealth must nonetheless be able to show in a criminal homicide case that the victim died as a result of injuries sustained in his encounter with the defendant, or from a series of events stemming from the encounter. In finding an autopsy advisable but not required in Haley, the Supreme Court relied upon the testimony of two doctors who had examined the body of a nineteen-year-old stabbing victim. One of the doctors was the surgeon who had unsuccessfully operated to stop the hemorraging, and the other was the physician/coroner. The Court found the testimony sufficient to establish that the victim died of a stab wound to the spleen and ensuing post-operative complications, notwithstanding the coroner’s laxity in failing to perform an autopsy or hold an inquest.

There is no medical testimony in the record before us to overcome the coroner’s failure to order an autopsy or inquest. The coroner testified that generally when the injuries are massive, he does not order an autopsy. Indeed, he testified that he avoided autopsies whenever possible because “most of the time people do not like to have postmortem examinations performed on their loved ones.” (N.T. October 22,1979 at 21). Although the coroner’s concerns are laudable, they in no way affect the burden of the Commonwealth in a criminal homicide trial. The Commonwealth relied on the coroner’s naked assertion to prove the cause of Mr. Ringler’s death. There is no evidence that he gave anything other than a cursory examination at the scene. He did not support his assertion with any physical evidence or description, or the testimony of a trained physician. Further, despite being a layman, he did not order an autopsy or inquest to determine the actual cause of death. The Commonwealth has failed to meet its burden. Regrettably, we must reverse appellant’s conviction for homicide by vehicle.

Judgment of sentence for homicide by vehicle reversed and appellant discharged. Judgments of sentence for driving while under the influence of alcohol and meeting a vehicle proceeding in the opposite direction are affirmed.

      . Appellant also contends that he should have been given a breathalyzer instead of a blood test. Although a breathalyzer is usually preferable as the least intrusive means of determining blood alcohol content, “[t]he statute does not require an absolute showing that a breathalyzer was impossible of performance.” Commonwealth v. Lee, 257 Pa.Superior Ct. 326, 329, 390 A.2d 845, 847 (1978). Appellant was already hospitalized for a broken nose and cheekbone. His treating physician testified that his injuries would affect his breathing and blowing. Appellant was in no condition to make the two mile trip to the police barracks for the breathalyzer test. Under all the circumstances, the blood test was “the most convenient and practical method which could have been utilized in this situation.” Id.

      . The Commonwealth contends that expert testimony is not necessary to prove the cause of death when the death is the result of a sudden and traumatic injury. Furman v. Frankie, 268 Pa. Superior Ct. 305, 408 A.2d 478 (1979). The Commonwealth has not cited, nor have we found, any criminal case finding such evidence sufficient to satisfy all reasonable doubts as to death. Although such evidence may be sufficient to establish cause of death by a preponderance of the evidence, it does not satisfy the more stringent standard of criminal trials.

      . Because of our disposition of the homicide by vehicle conviction, we need not address appellant’s remaining contentions.


author: PER CURIAM:

text:
    445 A.2d 549
    COMMONWEALTH of Pennsylvania v. Gary MARTIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 7, 1981.
    Filed May 7, 1982.
    Jeffrey M. Yoluck, Philadelphia, for appellant.
    Ann C. Lebowitz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

      Before SPAETH, HOFFMAN and VAN der YOORT, JJ.
   PER CURIAM:

Appellant was tried before Judge Prattis, non-jury, on charges of burglary, indecent assault, simple assault, attempted rape, and unlawful restraint. The judge sustained a demurrer to the burglary charge and found appellant guilty on the other four charges. Motions for a new trial and in arrest of judgment were denied. On October 14, 1977, the court imposed a sentence of one (1) to three (3) years imprisonment for attempted rape. Sentence was suspended on the remaining charges. On November 14, 1977, appellant filed a notice of appeal to this court. On the same day a petition for reconsideration of sentence was filed. On November 30, 1977, the court vacated the original sentence and sentenced appellant to eleven and one-half (IP/2) to twenty-three (23) months allowing appellant to enter a work release program.

Appellant raises numerous issues on this appeal. Due to numerous and questionable procedural irregularities we need not address such issues at this time.

As previously noted the notice of appeal was filed on November 14, 1977. On November 21, 1977, the lower court entered an order pursuant to Rule 1925(b) Pa.R.A.P. requiring appellant to file a statement of issues raised on appeal. On June 26, 1980, as no statement of reasons was forthcoming, the lower court filed an opinion finding that the appeal should be dismissed for failure to comply with Rule 1925(b). On August 19, 1980, this court in a Per Curiam Order dismissed such appeal as appellant had failed to timely file a brief. On November 25, 1980, new counsel for appellant filed a Petition to Reinstate the Appeal averring that a brief could be filed immediately upon granting such petition. On December 18, 1980, this court in a Per Curiam Order reinstated the appeal. On January 6,1981, appellant was granted an extension of time to file a brief. On March 3, 1981, the Commonwealth was granted an extension of time within which to file a brief. Appellant’s motion to postpone oral argument was denied on April 8, 1981.

As of the writing of this Opinion, we still do not have the benefit of an opinion of the trial court addressing the issues. This is the result of appellant’s failure, for whatever reasons, to file a statement of matters complained of on appeal. Anticipating appellant’s claim that such omission was a result of prior counsel’s ineffectiveness, we do not hold, at this time, that appellant has waived all objections, instead we direct appellant to file a concise statement of matters complained of within thirty (30) days of this order. If such statement is not so filed within the thirty (30) days, this appeal will be dismissed. Should appellant not timely file such statement, appellant’s bond shall be revoked and he shall be committed to comply with the sentence; the court below shall then notify the prothonotary of this court who shall enter an order dismissing the appeal.

If the statement is timely filed, we further direct the lower court to file an opinion addressing appellant’s contentions, within sixty (60) days of receipt of appellant’s statement pursuant to Rule 1925(b).

Record remanded for proceedings not inconsistent with this Opinion. We retain jurisdiction to decide this appeal after the above directives have been complied with.


text:
      445 A.2d 550
    COMMONWEALTH of Pennsylvania v. Joseph W. LARSON, Appellant.
    Superior Court of Pennsylvania.
    Argued May 12, 1981.
    Filed May 7, 1982.

      Edward J. Mearty, Assistant Public Defender, Media, for appellant.
    Rex R. Gary, Assistant District Attorney, Media, for Commonwealth, appellee.

      Before MONTEMURO, HOFFMAN and VAN der VOORT, JJ.
   PER CURIAM:

Appellant Joseph W. Larson was stopped on April 1,1980, and again on May 25, 1980, each time by Police Officer Harold Snyder, each time for a traffic violation. On each occasion, Officer Snyder radioed for a computer check and was informed that appellant’s license had been suspended. The officer then sent a written request for a certified copy of appellant’s operating record to the Pennsylvania Department of Transportation in Harrisburg. The certified operating record was received on July 24, 1980, and citations, which had been prepared on April 1 and May 25, 1980, were issued.

A hearing was held before a District Justice, and appellant was found guilty of two charges of operating a motor vehicle while his driving privilege was suspended. A fine of $200 was imposed on each conviction. Appeal was taken to the Court of Common Pleas, and the lower court, on November 10, 1980, once again found appellant guilty and imposed the same sentences. The case is before us on direct appeal. The sole issue is whether the convictions are barred by a statute of limitations.

42 Pa.C.S. § 5553(a), as in effect in April and May, 1980, provided:

Except as provided in subsection (b) or (c), proceedings for summary offenses under Title 75 (relating to vehicles) shall be instituted within 30 days after the commission of the alleged offense or within 30 days after the discovery of the commission of the offense or the identity of the offender, whichever is later, and not thereafter.

The statute is perfectly clear. Since the offenses with which appellant was charged were summary offenses (violations of 75 Pa.C.S. § 1543), proceedings against appellant had to be instituted within thirty days of whichever of the following occurred last: commission of each offense, discovery of the commission of each offense, discovery of the identity of the offender. The record clearly establishes that Officer Snyder was aware on April 1, 1980, of appellant’s identity and of the commission of one offense, and that he possessed the requisite information on May 25, 1980, to institute proceedings on the other offense. Proceedings were not instituted on either offense until July 24,1980, well beyond the thirty days required by § 5553(a). The case against appellant therefore should have been dismissed upon proper motion. Commonwealth v. Matthews, 286 Pa.Superior Ct. 474, 429 A.2d 37 (1981).

A further problem arises in this case, however. The record indicates that post-trial motions were never filed by appellant. Pa.R.Crim.P. 1123 requires either the filing of written post-trial motions within ten days after a finding of guilt, or an on-the-record agreement by the defendant to make oral motions at the conclusion of the trial. The rule also requires the trial court to advise the defendant on the record of the necessity of filing written post-trial motions in order to preserve issues for appeal. The lower court did not so advise appellant. We are therefore faced with the choice of remanding to permit appellant to file post-trial motions nunc pro tunc, as a panel of our court did in Commonwealth v. McNelis, 297 Pa.Superior Ct. 4, 442 A.2d 1184 (1982), or reversing on the merits and discharging appellant, as our court en banc did in Commonwealth v. Koch, 288 Pa.Superior Ct. 290, 431 A.2d 1052 (1981). Since remanding the case for filing of post-trial motions nunc pro tunc would not cure the bar to this prosecution by the statute of limitations, the latter would be the only reasonable course.

Judgment of sentence reversed, and appellant ordered discharged.

      . Act of April 28, 1978, P.L. 202, No. 53, § 10(65), subsequently amended by Act of October 5, 1980, P.L. 693, No. 142, § 501(a).

      . Proper procedure would have been for Officer Snyder to institute proceedings within 30 days of each offense, and immediately apply to Harrisburg for a certified copy of appellant’s operating record. If the case came up for trial prior to the receipt of the certified copy, delay in receiving it would have been sufficient ground for extending the trial date.

      . We note that the lower court did actually consider and reject appellant’s statute of limitations argument.


text:
    445 A.2d 552
    Alfred P. KITCHEN, Appellant, v. The AUTOMOBILE INSURANCE COMPANY OF HARTFORD, CONNECTICUT, a/k/a Aetna Life and Casualty Insurance Company.
    Superior Court of Pennsylvania.
    Argued Feb. 17, 1982.
    Filed May 7, 1982.

      Eugene A. Spector, Philadelphia, for appellant.
    Robert A. Rosin, Elkins Park, for appellee.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   PER CURIAM:

Alfred P. Kitchen, Appellant, sustained multiple severe injuries as a result of the negligence of an insured automobile operator in whose vehicle he was a passenger. The operator’s liability insurance provided coverage to a limit of $50,000 per person and $100,000 per accident. Appellant filed a claim against the operator and, after negotiations, agreed to accept $45,000 in exchange for releasing both the operator and his insurer. This court-approved settlement represented an amount in excess of the minimum amount required by the financial responsibility provisions of the Pennsylvania No-Fault Motor Vehicle Insurance Act.

At the time of the accident, Appellant carried his own insurance with the AETNA Life and Casualty Insurance Company (AETNA), where AETNA provided coverage for two automobiles, and further provided uninsured motorist coverage in the amount of $35,000 per vehicle. Appellant sought arbitration of his claim that he was entitled to personal injury damages under his own uninsured motorist coverage in excess of the amount recovered from the operator. His theory was that the uninsured motorist coverage was applicable when the third party (the operator) was underinsured.

After AETNA had refused to proceed with arbitration, the lower court entered an order directing arbitration. The arbitration panel, following a hearing on the merits, entered its award denying Appellant’s claim, finding that it was not an uninsured motorists’ claim since the operator was insured, albeit not to an extent to fully cover all of Appellant’s alleged damages.

A petition to vacate or modify the arbitrator’s award was then filed in the lower court, alleging error insofar as the arbitrators failed to find that (1) the uninsured motorist provisions of Appellant’s policy include underinsured motorist coverage, and (2) AETNA should have been estopped from denying that it provided Appellant with underinsured motorist coverage since he had asked for “full coverage”, was not provided with coverage including underinsured motorist coverage, and was not advised that such coverage was available. It is from the lower court’s order affirming the award of the arbitrators that this appeal is taken.

This court has recently declared that uninsured motorist coverage required by the Act of August 14, 1963, as amended, does not extend to a case where all of the automobiles involved in an accident have at least the minimum amount of liability insurance required by Pennsylvania law but where, because of the number of persons injured and the extent of the injuries, a claimant recovers less than the minimum amount. White v. Concord Mutual Insurance Company, 296 Pa.Super.Ct. 171, 442 A.2d 713 (1982). In a companion case decided the same day, on facts which are on all fours with the instant case, we affirmed an order denying a petition to vacate an arbitration award, where the arbitrators found that an “underinsured automobile” was not an “uninsured automobile” under circumstances where the claimant against his own insurance carrier had already recovered $24,467 from the insurer of the other operator. Davis v. Government Employees Insurance Company, 296 Pa.Super.Ct. 198, 442 A.2d 727 (1982). See also, Safeco Insurance Company of America v. Wetherill, 622 F.2d 685, 691 (3d Cir. 1980).

We thus conclude that the lower court was correct with respect to the first issue, in that Pennsylvania refuses to equate “underinsured” and “uninsured.”

Appellant further contends that the arbitrators committed an error in law in failing to decide whether an insurance carrier is estopped to deny underinsured coverage on the grounds that the insured had requested “full coverage” from his broker and had neither received underinsured coverage nor been informed that such coverage was available. The arbitration panel had ruled, and the lower court affirmed, that such an estoppel claim raised a question regarding the duty of disclosure under the circumstances but was not one arbitrable under the Uninsured Motorist Arbitration clause in the applicable policy.

Because of our determination that “uninsured” cannot be equated with “underinsured”, we must affirm the lower court concerning this second issue. This issue goes to whether Appellee is estopped from denying underinsurance coverage of Appellant and whether Appellant is therefore entitled to payment as being covered by an “underinsurance” policy provision. Since the arbitration clause in Appellant’s contract of insurance does not cover disputes involving “underinsurance”, and because of our determination as to the first issue, the arbitrators were correct in deciding that this issue was not arbitrable under the arbitration provision and the lower court was justified in affirming this conclusion. The phrase “this insurance,” as found in the arbitration provision, cannot be interpreted as a reference to a policy of underinsurance, as none was entered into between the parties. Clearly, any argument going to estoppel of Appellee to deny underinsurance coverage involves neither whether Appellant is legally entitled to recover uninsured motorist insurance nor the amount of payment under either uninsured motorist insurance or any other aspect of the policy contracted to by the parties.

It is well-settled in Pennsylvania that the doctrine of waiver or estoppel cannot create an insurance contract where none existed. Pfeiffer v. Grocers Mutual Insurance Co., 251 Pa.Super.Ct. 1, 379 A.2d 118 (1977).

The Order dated May 6, 1981 is affirmed.

      . 40 Pa.Stat.Ann. § 1009.104 (Purdon 1981).

      . 40 Pa.Stat.Ann. § 2000(a).

      . The arbitration provision amendment states, in part:
      —PERSONAL AUTO POLICY PENNSYLVANIA COMBINATION ENDORSEMENT AMENDMENT OF ARBITRATION CONDITION
      (Pennsylvania)
      Arbitration
      If we and a covered person disagree whether that person is legally entitled to recover damages from the owner or operator of an uninsured motor vehicle or do not agree as to the amount of payment which may be owing under this insurance, the matter or matters upon which we and the covered person do not agree shall be settled by arbitration pursuant to the provisions of the Pennsylvania Arbitration Act of 1927 and each party shall, upon written demand of either, select an arbitrator....