author: CERCONE, Judge:

text:
    493 A.2d 111
    Gerald M. LEIBOWITZ, Appellant, v. H.A. WINSTON COMPANY and Ross Bureau of Investigation.
    Superior Court of Pennsylvania.
    Argued March 11, 1985.
    Filed May 17, 1985.

      George J. O’Neill, Philadelphia, for appellant.
    Peter J. Mooney, Philadelphia, for H.A. Winston, appellee.
    Richard R. Galli, Philadelphia, for Ross, appellee.
    Before McEWEN, CERCONE and TROMMER , JJ.

       Judge Evelyn M. Trommer of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   CERCONE, Judge:

From July 1976 until February 1977, plaintiff-appellant Gerald M. Leibowitz was employed by a restaurant, defendant-appellee H.A. Winston and Company. He began his employment as a substitute waiter and at the time he was discharged he was an assistant manager. On an evening in January 1976 when appellant reported to work, he was informed by another manager that approximately $250 was missing from a safe to which only appellant and four or five other individuals had access. After a search revealed nothing, appellant reported the fact of the missing money to a general manager.

Approximately two weeks later, on a Sunday night, appellant received a phone call at home from the owner of Winston’s, Gerry Spivak. Appellant testified that Spivak told appellant of his concern about the missing money and that he had arranged for appointments for appellant and the other assistant manager to take lie detector tests the next day at Ross Detective Agency, defendant-appellee. Appellant testified that Spivak did not inform him of any rights to refuse the test, nor did appellant protest. Assuming that he would pass the test, appellant went to the Ross Detective Agency.

He was given a paper to sign which he was told by the test administrator that he had to sign in order to take the test. This paper was a release of any liability of the appellees arising from appellants being tested.

Appellant was asked if he read the release.

“Well, I looked over the paper. It was a lot of — at that time, it was legal jargon. I didn’t really know what I was signing, but, I figured: I had nothing to fear. I wasn’t concerned, the least bit, so, I figured, I have nothing to lose. I’m telling the truth.”

Appellant was informed that he failed the test. Immediately he protested that there was a mistake, that he did not take the money. When he called Spivak and insisted that an error had been made, Spivak replied that the agency administering the test were professionals, that he had used them before, and that he would take their word for it.

The next day, appellant, accompanied by his mother, returned to the Ross Agency and insisted that the lie detector test be administered to him again. The result was the same. Subsequently, on his own initiative again, appellant was administered another test by a third party with favorable results. When appellant took these reports to Spivak, he nevertheless refused to let appellant work for him because his credibility was lost, according to Spivak.

Thereafter, appellant filed a complaint alleging numerous causes of action against both defendants: defamation, invasion of privacy, intentional infliction of emotional distress, negligence, violation of a criminal statute; and wrongful discharge against H.A. Winston and Company above. The case proceeded to trial by jury and at the close of appellant’s case, the court entered an involuntary nonsuit as to both defendants. It was on the basis of the two releases which were admitted into evidence by appellant that the nonsuit was granted.

The trial court held that appellant failed to meet his burden of invalidating the releases which he signed prior to and after being administered the lie detector tests. The court acknowledged the public policy of Pennsylvania that an employee not be made to take a lie detector test as a condition of employment as contained in the Crimes Code, 18 Pa.C.S.A. § 7321(a):

A person is guilty of a misdemeanor of the second degree if he requires as a condition for employment or continuation of employment that an employee or other individual shall take a polygraph test or any form of a mechanical or electrical lie detector test.

However, the court found that only if appellant could present proof that the within releases from liability were signed as a condition of employment or continued employment would the releases be invalid. The court concluded, following its reference to certain portions of appellant’s testimony at trial, that, at most, appellant’s reaction to taking the test

“demonstrates an uncommunicated subjective anxiety on plaintiff’s part, which is far different from showing that the test was required, by Winston, as a condition of continued employment.”

Thus, because the court found that Leibowitz was unable to produce any evidence that his employer crossed the line from using the polygraph to requiring a polygraph test, it considered all of appellant’s causes of action as insufficiently proved and entered the nonsuit as to both defendants and all causes of action.

In determining the propriety of an order entering a nonsuit, the plaintiff must be given the benefit of every fact and every reasonable inference of fact arising from the evidence, whether direct or circumstantial, and all conflicts must be resolved in the plaintiff’s favor. A nonsuit may only be entered in a clear case where the facts and circumstances lead unerringly to but one conclusion. (citations omitted.) A.J. Aberman, Inc. v. Funk Bldg. Corp., 278 Pa.Super. 385, 393, 420 A.2d 594, 598 (1980).

Appellant argues on appeal that the trial court erred in refusing to allow his case to go to the jury on the issue of whether appellant signed the releases and took the test under a compulsion consisting of fear of losing his job if he refused. Moreover, appellant claims that the court should have declared the release forms to be invalid on their face as violative of the public policy expressed in the relevant criminal statute.

In Polsky v. Radio Shack, 666 F.2d 824 (3rd Cir.1981) the court reversed a grant of summary judgment because it concluded that there was a genuine issue of fact as to whether the plaintiff signed a release from liability for violation of the same anti-polygraph statute under threat of losing her job if she did not. The district court in concluding that the release advising her of her rights under § 7321 was valid in that she was not physically compelled to sign, stated that a plaintiff may not later renounce such a non-coerced release on grounds that she was compelled to sign it in order to preserve her job.

The Circuit Court rejected this traditional test for invalidating a release for reasons of duress, see Carrier v. William Penn Broadcasting Co., 426 Pa. 427, 431, 233 A.2d 519, 521 (1967), and held that where an employee can show compulsion under threat of job termination to sign a release from liability under the section prohibiting an employer from requiring an employee to submit to a polygraph examination “as a condition for employment or continuation of employment,” the employee need not show duress to invalidate the release because it would contravene public policy of the state. Polsky, supra, at 829.

Initially, it must be stated that a recognized facet of public policy is indeed embodied in the anti-polygraph statute. This was the conclusion of the court in Perks v. Firestone Tire and Rubber Co., 611 F.2d 1363 (3rd Cir. 1979). Therein the court reversed a summary judgment in an employer’s favor and held that the discharge of an employee-at-will because of his refusal to take a polygraph gave rise to a cause of action for tortious discharge under Pennsylvania law and because there was an issue of fact as to the reason for his discharge. See also Molush v. Orkin Exterminating Co., Inc., 547 F.Supp. 54 (E D Pa 1982) (Former employee who alleged that he underwent polygraph exam at his employer’s request and was dismissed due to results, has pleaded a valid cause of action for tortious discharge under the public policy embodied in Pennsylvania’s antipolygraph statute.)

However, the crux of the issue in this case is to what extent at trial an employee-at-will must illustrate compulsion for a release which is signed prior to taking a lie detector test to be declared coerced as a condition of employment and therefore invalid. Stating it positively, may an employee-at-will ever be said to have released all relevant parties from liability when he is requested, as in this case, to take a lie detector test by his employer?

In certain scenarios the answer to this second question must clearly be yes. It is conceivable that an employee himself would request an opportunity to be examined by means of a polygraph. Or, if an employer clearly states to the employee that he may refuse to take the test without fear of losing his job on that ground, such lack of compulsion is evident. However, as to the first question regarding what an employee is required to show in order to give rise to a possible inference of compulsion in the fact-finder’s determination, the parameters are not so clear. The reason for this can be seen in light of the purpose behind the antipolygraph statute as expressed by the Supreme Court of New Jersey regarding a statute similar to the Pennsylvania law. As cited in Perks v. Firestone, supra, at 1365-6:

There is no judicial control when an employer subjects his employee to a lie detector test and there is no licensing or other objective method of assuring expertise and safeguard in the administration of the test and the interpretation of its results. Nor is there any assurance of true voluntariness for the economic compulsions are generally such that the employee has no realistic choice. Organized labor groups have often expressed intense hostility to employer requirements that employees submit to polygraph tests which they view as improper invasions of their deeply felt rights to personal privacy and to remain free from involuntary self-incrimination. State v. Community Distributors, Inc., 64 N.J. 479, 317 A.2d 697, 699 (1974).

Viewed in the light most favorable to appellant, the evidence is that appellant after failing out of Temple Medical School, began working for Winston’s as a substitute waiter. In a few short months he had arisen to assistant manager status, still under at-will employment. He was called at home on Sunday evening and told by his employer that an appointment had been made for him the next morning to take a polygraph regarding money missing at work. Appellant went to the Ross Agency and signed the within release having been told he will not be able to take the test unless he signs it. The court viewed this evidence as insufficient to establish an inference that the release was signed under threat of job termination. We disagree.

Appellant, unlike the plaintiff in Polsky, supra, did not testify that he was told by his employer that unless he took the test, he would lose his job. However, a jury does not need such direct evidence in order to draw a reasonable inference that compulsion may have been present. We are not concluding that the evidence does support such an inference, but only that it may. A jury should decide whether the release was valid or not. As this court has said

“[wjhere there is any evidence which alone would justify an inference of the disputed fact, it must go to the jury, no matter how strong or persuasive may be the countervailing proof.” Beary v. Penna. Electric Co., 322 Pa.Superior Ct. 52, 57, 469 A.2d 176, 179 (1983).

Thus, appellant must be afforded such a determination by a jury.

Appellees rely on the proof which is usually necessary in order to invalidate a release, as in Carrier v. William Penn Broadcasting Co., supra. More specifically, they quote the language that mere economic or financial pressure does not suffice to invalidate a release. This is true in the situation where parties are dealing as equals, as in Carrier and as in Employers Liability Assurance Corp. v. Greenville Business Men’s Assoc., 423 Pa. 288, 224 A.2d 620 (1966). However, the parties in this case stand in substantially different positions to each other, as did the parties in Polsky, supra. The court in that case noted our decision in Phillips Home Furnishings, Inc. v. Continental Bank, 231 Pa.Superior Ct. 174, 181-2, 331 A.2d 840, 843-4 (1974), rev’d on other grounds, 467 Pa. 43, 354 A.2d 542 (1976) in which an exculpatory clause asserted by a bank as a defense against allegations of negligence was held invalid. This court said, regarding such clauses:

Where a disparity of bargaining power has grown out of economic necessity for certain goods or services or from a monopolistic position of a seller, courts have found exculpatory agreements inimical to the public interest. Where an agreement does not represent a free choice on the part of the plaintiff, where he is forced to accept the clause by the necessities of his situation, courts have refused to enforce such agreements as contrary to public policy. Id., 231 Pa.Superior Ct. at 181, 331 A.2d at 843.

We find this reasoning persuasive and analogous to the instant situation. Appellant was able to show that he was told to take the test, at what time and where to take it. The test administrator required him to sign the release in order to take the test. Given the disparate positions of power of appellant and Winston’s, unless appellant testified that he requested the test or that his employer assured him that it was not necessary that he take it as a condition of employment, the issue of whether he signed the releases out of compulsion should have been given to the jury. We refuse to exalt the release above the circumstances surrounding its signing.

Therefore, the order of the trial court refusing to take off the nonsuit is vacated. Case remanded with direction that nonsuit be taken off. New trial granted. Jurisdiction relinquished.

      . "I didn’t protest. I felt that, if I protested, that he would think I was guilty of something. I was very upset, though____ I felt as though, if I refused to take the test, naturally, one would think that somebody is guilty, if they don't want to take a test, you know. What do they have to hide? I had nothing to hide, but I was still very upset, because I had a lot of respect for Gerry Spivak, and I was very surprised that he would think, even consider, that I would take something from him and would ask me to take a test of this nature.”

      . I, Gerald M. Leibowitz, have been advised that under Section 7321 of the Act of December 1972 (# 334) of the Commonwealth of Pennsylvania statutes, I may not be required to take a Polygraph (lie detection) examination as a condition of my employment or continued employment. With full knowledge of these rights, and without duress, coercion, force, or promises of immunity or reward, I do hereby request a Polygraph examination to be given to me by an officer and/or employee(s) of the Ross Bureau of Investigation, Inc. for the mutual benefit of myself and H.A. Winston Co. as part of their security control system. I also authorize the Ross Bureau of Investígation, Inc., its (sic) officers and/or employee(s) to disclose both orally and in writing, all information, results and opinions arising from said examination, to any and all interested persons including employee(s) and/or representatives of H.A. Winston Co. for whatever uses they may determine. Intending to be legally bound, I remise, release, waive and forever discharge all and each of the above corporations, firms and individuals from any and all actions or cause of action, claim or demand, liability or legal actions which I have now or may ever have resulting directly or indirectly or remotely both from my taking said examination and the oral and written opinions rendered because of said examination.
      In witness whereof I have hereunto set my hand and seal
      Emily M. Wimberly Gerald M. Liebowitz
      Witnessed (seal) Signature of person examined
      This examination was concluded at 11:15 a.m. on the above date. Having submitted myself freely to this examination, I hereby re-affirm my agreement as expressed above. I swear that during said examination, I was well treated and remained of my own free will, knowing that I could leave at any time I so desired. I also swear and certify that there were no threats or harm done to me or any promises made to me during the entire time I have been here, either in connection with the examination or the signing of this form.
      Emily M. Wimberly (seal) Gerald M. Liebowitz
      Witnessed Signature of person examined

      . Although the lower court prohibited the results from being admitted at trial over objection, the implication clearly is that appellant passed this third test.

      . In Geary v. United States Steel Corporation, 456 Pa. 171, 319 A.2d 174 (1974) the court recognized an exception to the rule that no non-statutory cause of action exists for an employer’s termination of an at-will employment relationship. Where a clear mandate of public policy is violated by the termination, the employer’s right to discharge may be circumscribed. See also, Reuther v. Fowler and Williams, Inc., 255 Pa.Superior Ct. 28, 386 A.2d 119 (1978) (Cause of action exists when employee is discharged for jury service.); Cisco v. United Parcel Services, 328 Pa.Superior Ct. 300, 476 A.2d 1340 (1984) (no cause of action when employee is discharged for employment related crimes even though later acquitted in jury trial.)


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    493 A.2d 116
    Brendon L. BEERS v. John L. BEERS, Appellant.
    Superior Court of Pennsylvania.
    Argued March 13, 1985.
    Filed May 17, 1985.

      Bradley K. Hellein, Kittanning, for appellant.
    Alberta R. Beardsley, Kittanning, for appellee.
    Before DEL SOLE, HESTER and FEENEY, JJ.

       Judge John M. Feeney, of the Court of Common Pleas of Allegheny County, Pennsylvania, is sitting by designation.

   HESTER, Judge:

In this appeal, appellant seeks our review of an Order of Court awarding custody of his daughter to appellee, the child’s mother. Appellant received liberal visitation rights, however, as in many of these cases, the non-custodial parent wants that degree of participation in his child’s life which only primary custody affords.

The parties to this action were married on April 9, 1977, and resided in Armstrong County. The minor subject of these proceedings, Jennifer, was born on March 29, 1979. In June of 1982, the parties separated; the mother moved to Jamestown, New York, and the father moved to Indiana, Pennsylvania. The mother immediately assumed primary custody of the child. An agreement by the parties in September of that year formalized the arrangement, which continued until March 3, 1983. On that date, the parties agreed to share custody of Jennifer, with the parties alternating custody every two weeks.

In March of 1984, appellee filed a complaint seeking principal custody of the child in view of her impending attendance at kindergarden. Appellant filed a cross-complaint, and a hearing was held on the matter in June of 1984. After reviewing the evidence and weighing the testimony adduced at trial, the lower court awarded primary custody of Jennifer to appellee during the academic year, and custody to appellant during the summer months, with liberal visitation to the noncustodial parent. Appellant thereafter perfected this appeal.

The fundamental issue presented by this appeal is whether the lower court erred in awarding primary physical custody to appellee. In reviewing custody orders,

an appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support the trial court’s factual conclusions, but may not interfere with these conclusions unless they are unreasonable in light of the trial court’s factual findings [,] ... and, thus, represent a gross abuse of discretion____

Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 237, 478 A.2d 800, 806 (1984) (citation omitted; emphasis in original). In that opinion, the Supreme Court clearly placed the burden of proving that the trial court’s decree was manifestly erroneous or that it constituted a gross abuse of discretion upon appellant. Id. If the party challenging the order of court fails to meet his or her burden, then we have no choice but to affirm the decision of the trial judge. In doing so, we defer to his unique ability to observe the demeanor of the parties and evaluate the'testimony of the witnesses.

In order to support his burden, appellant alleges that the lower court erred in finding that (1) the child’s educational needs would be adequately served if placed with either parent; (2) the mother had been the primary caregiver prior to the shared custody agreement; (3) the mother would have more time to spend with the child; and (4) in failing to find that appellant’s home was more stable and secure than appellee’s home. For the foregoing reasons, appellant argues the court’s award of custody did not serve the best interests of the child.

The polestar of any child custody dispute is to reach a decision which serves the “best interests” of the child. Gonzalez v. Gonzalez, 337 Pa.Super. 1, 5, 486 A.2d 449, 451 (1984); Brooks v. Brooks, 319 Pa.Super. 268, 466 A.2d 152 (1983). Factors to be considered in arriving at such a determination include the child’s physical, intellectual, emotional, and spiritual well-being. Commonwealth ex rel. Newcomer v. King, 301 Pa.Super. 239, 447 A.2d 630 (1982). Thus, we must analyze the lower court’s factual findings to ascertain whether his conclusion that the child’s best interests are met by placement with the mother finds support in the record.

In appellant’s first argument, he expressed his concern for Jennifer’s educational needs and contends that appellee has failed to make the educational needs of the child a priority. To support this argument, appellant asserts that appellee had not finalized Jennifer’s enrollment at kinder-garden or her after-school care at the time of the first hearing on June 5, 1984. Appellant, on the other hand, testified as to exactly where the child would attend kinder-garden, her transportation to and from school, and her subsequent care. Moreover, he avers that no testimony was presented as to the adequacy of the school ultimately chosen by appellee. Therefore, he concludes that the trial court erred in finding that Jennifer’s needs would be adequately met regardless of her placement.

First, we note that the record reveals nothing about the educational programs advanced by either party. As to appellee’s initial hesitancy about Jennifer’s schooling arrangements, appellee explained at the hearing that she had moved four days earlier, causing some reconsideration of her original plans for Jennifer. By the date of the second hearing, appellee had completed the arrangements for Jennifer’s schooling. We refuse to attribute any lack of concern or interest by appellee in her daughter’s educational needs merely because her change of domicile caused some temporary disruption of plans.

We do discern from the tone of appellant’s testimony and his brief a feeling of academic superiority over his ex-wife. During the marriage, appellant was a full-time student pursuing his undergraduate degree, while appellee was a full-time homemaker and child rearer. In fact, appellee worked part-time to supplement the family’s income during this period.

Appellant is currently a computer programer at the Indiana University of Pennsylvania and is pursuing a degree in Business Administration Management for Systems. Appellee is employed as a saleswomen and manager trainee for a clothing store. Although circumstances may have enabled appellant to achieve his academic goals sooner, appellee is currently enrolled at and attending Jamestown Community College.

We believe that both parents evince an awareness of the importance of education and would be equally responsive to Jennifer’s training. We find no error in the court’s conclusion that the child’s educational needs would be appropriately addressed in either custodial arrangement. Such a conclusion rests upon an adequate foundation in the record.

Appellant next advances the argument that the lower court erred in considering that appellee was the primary caretaker prior to the shared custody agreement. Although he concedes that appellee provided the majority of Jennifer’s care during the first two and one-half years of her life, and exclusively for almost a year following the parties’ separation, appellant asserts that the shared custody arrangement of 1983-1984 resulted in equally strong bonds of attachment between the child and both parents. Thus, he concludes that appellee’s former role as primary custodian has been rendered irrelevant.

This Court has recognized the desirability of maintaining the continued residence of a child with a parent or custodian who has, “through daily affection, guidance, companionship, and discipline fulfilled] the child’s psychological and physical needs____” Commonwealth ex rel. Jordan v. Jordan, 302 Pa.Super. 421, 425, 448 A.2d 1113, 1115 (1982). Often, if all other factors are nearly equal, this factor “may be of critical importance to the formulation of an appropriate custody decree.” Harner v. Harner, 330 Pa.Super. 343, 354, 479 A.2d 583, 589 (1984), quoting Pamela J.K. v. Roger D.J., 277 Pa.Super. 579, 589, 419 A.2d 1301, 1307 (1980).

In this case, appellant may well have grown closer to his daughter through the joint custody arrangement. However, the strengthening of the bond between him and his child fails to dilute the past closeness and degree of commitment evinced by appellee’s former role as primary caretaker. As appellant states in his brief, “the [primary caretaker] doctrine acts to preserve the strong bond between the caretaker and the child.” The lower court did not deny Jennifer’s attachment to appellant, but merely recognized, as one factor in the decision making process, the likelihood of a greater attachment to her mother. We find no error in the lower court’s analysis of the child’s care throughout her young life, especially in light of the relatively short duration of the shared custody.

Similarly, the record supports the trial judge’s factual finding that the mother has a greater amount of time to spend with the child in view of her flexible, part-time work schedule. Although appellant contends that the lower court failed to consider that appellee’s free time must be divided among Jennifer and her two other children from her first marriage, the court was fully apprised of appellee’s familial responsibilities.

Moreover, the presence of two half-brothers in appellee’s home was viewed favorably by the trial court in ascertaining the best interests of the child. It is a well-settled policy of this Commonwealth that, where possible, siblings should be reared together. In re Davis, 502 Pa. 110, 465 A.2d 614 (1983).

Finally, appellant avers that his home is more stable and secure than that of appellee. The basis for this argument is that appellant lives alone in a rented house. Appellee, on the other hand, rents one-half of a duplex, and is very friendly with the family living in the other half. That family, which comprises a father and three children, spends a great deal of time with appellee and her children, often sharing meals and watching television together. However, we fail to see how such a relationship translates to “instability” in appellee’s household, or how the same could be harmful to a child. The lower court found, and the record warrants such a conclusion, that the homes of both parties were appropriate and adequate to meet the needs of the child.

The lower court conceded that both parties were fit custodians for their daughter. Each appears from the record to be a mature, responsible, loving parent with the child’s best interests at heart. In such cases, no clear answer presents itself, and the task of making a choice is a most difficult one .for the judge to face. See Ellingsen v. Magsamen, 337 Pa.Super. 14, 486 A.2d 456 (1984); Smith v. Smith, 337 Pa.Super. 9, 486 A.2d 453 (1984). In reaching his decision to award custody of Jennifer to appellee during the academic year, the court found the scale to be tipped in favor of appellee on the basis of her prior role as caretaker and the presence of Jennifer’s half-brothers. These considerations were valid and find much support in our caselaw. The trial judge’s conclusion rests upon a solid foundation as confirmed by our scrutiny of the record, and affords no basis for a finding of error.

Order affirmed.


author: BECK, Judge:

text:
    493 A.2d 120
    Albert WHEELER, Appellant, v. JOHNS-MANVILLE CORPORATION, Johns-Manville Sales Corporation, Raybestos Manhattan, Inc., Forty Eight Insulation, Inc., Nicolet Industries, Inc., Pittsburgh Corning Corp., GAF Corporation, Armstrong Cork Company, Unarco Industries, Inc., H.K. Porter Co., Inc., Southern Asbestos Company, Eagle Picher Industries, Inc., Delaware Asbestos & Rubber Company, Fibreboard Corporation, Pabco, Industrial Products Division, Keene Corporation, Glen Alden, Inc., Rapid American, Inc., Turner Newall, Ltd., Keasbey-Mattison Company, Certain-Teed Products Corporation, U.S. Rubber Co., Inc., Pacor, Inc., Philip Carey Manufacturing Co., Amatex Corporation, Asbestos Testile Institute, Inc., Uni-Royal, Inc., Southern Asbestos Company, H.K. Porter Co., Inc., U.S. Rubber Co., Inc., Carolina Asbestos Company, Unarco, Inc., J. Franklin Burke Co., General Asbestos Co., Asbestos Testile Co., Thermoid Company, Asten Hill Manufacturing Co., Ruberoid Company, Inc., Amatex Corporation, Pacor, Inc., Appellees.
    Superior Court of Pennsylvania.
    Submitted Oct. 30, 1984.
    Decided May 17, 1985.

      Martin Greitzer, Philadelphia, for appellant.
    Charles W. Craven, Philadelphia, for Johns-Manville, appellee.
    Arthur Makadon, Philadelphia, for Raybestos, appellee.
    Joseph H. Foster, Philadelphia, for Forty Eight, appellee.
    Walter Meeley, Philadelphia, for Nicolet, appellee.
    Edward J. David, Philadelphia, for Pittsburgh Corning, appellee.
    Edward Greer, Philadelphia, for GAF, appellee.
    Thomas J. Ingersoll, Philadelphia, for Armstrong, appellee.
    Dudley Hughes, Philadelphia, for Unarco, appellee.
    Barbara A. Pennell, Philadelphia, for Eagle, appellee.
    George S. Donze, Philadelphia, for Fibreboard, appellee.
    Perry S. Bechtle, Philadelphia, for Keene, appellee.
    George D. Bruch, Jr., Philadelphia, for Pacor, appellee.
    Andrew J. Trevelise, West Chester, for Philip, appellee.
    Francis E. Shields, Philadelphia, for Amatex, appellee.
    Alfred W. Putnam, Philadelphia, for Uni-Royal, appellee.
    Walter S. Jenkins, Philadelphia, for Thermoid, appellee.
    J. McKissock, Philadelphia, for Asten, appellee.
    Before BECK, HESTER and ROBERTS, JJ.
   BECK, Judge:

This is an asbestosis case. Plaintiff Albert Wheeler brought suit against the customary panoply of defendants, alleging that he contracted asbestosis as a result of being exposed to asbestos dust while working with and around defendants’ products at the Philadelphia Naval Shipyard. The trial court granted summary judgment to defendantsappellees on the ground that the statute of limitations had run. Plaintiff appealed.

On appeal, Wheeler contends that the court erred in finding there was no genuine issue of material fact on the controlling question of when he acquired sufficient knowledge of his injury to start the running of the two-year statute of limitations. He further argues that the three-part test first stated in Volpe v. Johns-Manville Corp., 4 Phila. County Reporter 290 (1980), is not the correct test for determining when the statute begins to run, that the court improperly considered unsworn exhibits as part of the record on summary judgment, and that the court erred in failing to find that appellant was the victim of a continuing tort. For the reasons stated below we reverse and remand for trial.

We shall address first the question of the test to be applied in determining when the limitations period begins to run. At the time the instant appeal was taken, the controlling statement on the issue was found in Volpe v. Johns-Manville Corp., 4 Phila. County Reporter 290 (1980). The Philadelphia court of common pleas therein held that the statute begins to run when the plaintiff knows or reasonably should know: (1) the injury, (2) the operative cause of the injury, and (3) the causative relationship between the injury and the operative conduct.

Appellant argues that a better formulation of the test was stated in Nolan v. Johns-Manville Asbestos, 85 Ill.2d 161, 169-71, 52 Ill.Dec. 1, 5, 421 N.E.2d 864, 868 (1981), where the Illinois Supreme Court held that an asbestos plaintiffs “cause of action accrues when the plaintiff knows or reasonably should know of an injury and also knows or reasonably should know that the injury was caused by the wrongful act of another.”

Volpe was affirmed by this court en banc. Volpe v. Johns-Manville Corp., 323 Pa.Super. 130, 470 A.2d 164 (1983). One month later, though, this court rendered another en banc decision, Cathcart v. Keene Industrial Insula tion, 824 Pa.Super. 123, 471 A.2d 493 (1984), in which we held that the Volpe test was too complex and adopted instead a two-part test modeled on Nolan. Because of the close proximity of these two conflicting decisions, there has ensued some disagreement as to which is controlling. See Berardi v. Johns-Manville Corp., 334 Pa.Super. 36, 482 A.2d 1067 (1984) (majority favors Volpe formulation; dissenting opinion argues that Cathcart is controlling). We believe that Cathcart should be followed because it is the most recent holding of the court en banc and Berardi, as a panel decision, cannot overrule the court en banc. See also Price v. Johns-Manville Corp., 336 Pa.Super. 133, 485 A.2d 466 (1984) (applying Cathcart). However, our decision to reverse would be the same whichever test is applied.

The instant action was commenced on September 5, 1978. In granting appellees’ motion for summary judgment, the trial court found that the record established that appellant knew he had contracted asbestosis as a result of exposure at the Philadelphia Naval Shipyard no later than August 8, 1974, more than two years prior to commencing suit. The court based its decision on certain medical records which were attached as exhibits to the motion for summary judgment, a workers’ compensation claim form, likewise attached as an exhibit, and appellant’s deposition testimony.

Appellant attacks the trial court’s reliance on unsworn exhibits, arguing they are not properly part of the record on summary judgment. We agree. Under Pa.R.C.P. 1035, the record on summary judgment includes “the pleadings and any depositions, answers to interrogatories, admissions on file and supporting affidavits.” In Irrera v. SEPTA, 231 Pa.Super. 508, 331 A.2d 705 (1974), we held that such unsworn exhibits and documents not complying with Rule 1035 may not be considered part of the record on summary judgment. Similar exhibits and medical records were recently admitted in Berardi and in Staiano v. Johns-Manville Corp., 304 Pa.Super. 280, 450 A.2d 681 (1982), but only because in both cases the plaintiff failed to raise in the lower court any objection to the consideration of the documents. In the instant case, appellant objected strongly in his opposition to appellees’ motion for summary judgment to the inclusion of the unsworn documents in the record. See Plaintiff’s Answer to Motion for Summary Judgment at ¶ 4-11; Plaintiff’s Memorandum of Law in Opposition to Motion for Summary Judgment at 2-3.

Appellees argue that the documents should be admitted although unsworn because they nevertheless meet three “criteria” supposedly stated in Irrera (See Appellees’ Brief at 6). This argument is based on a misreading of Irrera. The “criteria” cited by appellees are part of a quotation in Irrera of Pa.R.C.P. 1035(d), which does not create an exception to the rule that unsworn documents may not be considered. Rule 1035(d) simply specifies requirements which an affidavit must meet to be considered on summary judgment. The rule still clearly requires that the documents in fact be affidavits. The medical records and other documents at issue here are not affidavits. Therefore, the court erred in considering these documents in ruling on appellees’ motion for summary judgment.

However, our inquiry may not stop here, because the court also based its decision on appellant’s deposition testimony. In his deposition, appellant was questioned extensively about statements he admitted making in his own handwriting on a workers’ compensation claim form. He admitted he had written August 8, 1974 in two places on the form, as (1) the date he first became aware of his illness (asbestosis) and (2) the date he first realized the illness was caused or aggravated by his employment. Appellant attempted to explain that he did not actually know he had asbestosis on August 8, 1974 and wrote that date on the claim form only because his doctor told him to. In the course of this discussion, the following colloquy ensued:

Q. Okay. What were you told by the doctor?
A. On August the 8th?
Q. On October 27th, ’76.
A. That I had asbestosis.
Q. And as to this date, August 8th, 1974, is that the same conversation you had with Dr. Duca?
A. Yes.

Deposition of Albert Wheeler at 104-05.

The trial court interpreted this as an admission by appellant that he knew he had asbestosis on August 8, 1974. We disagree. When considering a motion for summary judgment, the court is to examine the record in the light most favorable to the nonmoving party and resolve all doubts and ambiguities in favor of the nonmoving party. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1980); Weiss v. Keystone Mack Sales, 310 Pa.Super. 425, 456 A.2d 1009 (1983); Ritmanich v. Jonnel Enterprises, Inc., 219 Pa.Super. 198, 280 A.2d 570 (1971). So viewed, it is clear that appellant made no admission regarding his knowledge in August 1974. Counsel’s question, “What were you told by the doctor?” was clarified with the phrase “On October 27th, ’76” before appellant answered “That I had asbestosis.” Therefore, the only reasonable meaning of “the same conversation” in the next question is the October 27, 1976 conversation referred to in the first question. Appellant did not admit that he knew he had asbestosis on August 8, 1974. Rather, he stated clearly that he was told he had asbestosis on October 27, 1976, and in “the same conversation” the doctor told him to put the earlier date on the claim form.

Furthermore, the above statements of appellant must also be read in conjunction with the remainder of his deposition testimony. Elsewhere in the deposition, appellant maintained unequivocally that he was not told he had asbestosis until October 1976, which is less than two years before the action was commenced. See Deposition of Albert Wheeler at 44-45, 47-48.

Whether this testimony is credible is not the issue. On a summary judgment motion, the court’s function is not to try disputed issues of fact but simply to determine whether any genuine issues of material fact exist. Taylor v. Tukanowicz, 290 Pa.Super. 581, 435 A.2d 181 (1981); Tom Morello Construction Co. v. Bridgeport Federal Savings & Loan Assn., 280 Pa.Super. 329, 421 A.2d 747 (1980). We hold that the court erred in granting summary judgment on this record because there is a genuine issue of fact as to when appellant had sufficient knowledge of his injury and its cause (under either the Volpe or the Cathcart formulation) to start the running of the limitations period. Accordingly, we need not address appellant’s claims regarding the application of the doctrine of continuing tort.

Order reversed and case remanded for trial. Jurisdiction is relinquished.

      . We further note that the question whether appellant should have known of his injuries at some earlier date through the exercise of reasonable diligence was not raised below by the parties and is not before us.


author: PER CURIAM: OLSZEWSKI, Judge,

text:
    493 A.2d 691
    COMMONWEALTH of Pennsylvania v. Barry Charles GORDON, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 5, 1984.
    Filed March 15, 1985.
    Reargument Denied May 22, 1985.

      H. Robert Fiebach, Philadelphia, for appellant.
    Sandra L. Elias, Deputy District Attorney, Media, for Commonwealth, appellee.
    Before CIRILLO, OLSZEWSKI and MONTGOMERY, JJ.
   PER CURIAM:

This is an appeal from the judgment of sentence issued by the Honorable Charles C. Keeler on May 23, 1983 in the Court of Common Pleas of Delaware County.

On July 15,1982 Barry Gordon, a licensed pharmacist and appellant in this case, sold a prescription drug to a criminal informant without a prescription. The drug sold by appellant was dilaudid, a Schedule II opiate derivative drug. The sale of the dilaudid took place at a motel in Springfield Township. Appellant was immediately arrested by police following the $800 sale to the informant, and was charged with violating subdivisions 13(a)(16) and (30) of the Controlled Substance, Drug, Device, and Cosmetic Act, Act of April 14, 1972, P.L. 233, No. 64 (as amended), 35 P.S. § 780-113(a)(16) and (30).

On November 12, 1982, the appellant waived his right to a jury trial and a bench trial commenced before the Honorable Charles C. Keeler. The uncontroverted evidence at trial showed that Mr. Gordon was a pharmacist licensed by the State Board of Pharmacy. At the conclusion of the Commonwealth’s case the appellant demurred to the evidence and at the conclusion of his own case moved for a directed verdict of acquittal, contending that as a licensed pharmacist he could not be found guilty of violating the sections the Commonwealth had charged him with. Appellant maintained that subdivisions 13(a)(16) and (30) of the CSDDCA by their very terms did not apply to practitioners which included licensed pharmacists. The trial court denied these motions and on November 15, 1982 found the appellant guilty of the offenses charged. The trial court also denied the appellant’s post-verdict motions for a new trial and in arrest of judgment. This appeal followed.

Appellant raises three contentions on appeal: 1) that appellant, a pharmacist licensed with the State Board of Pharmacy, cannot be convicted under Sections 13(a)(16) and (30) of the CSDDCA because these sections exempt “practitioners”; 2) that the Commonwealth withheld exculpatory evidence requested by appellant; and 3) that the Commonwealth violated the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5701-5726.

We agree with appellant’s contention that because he is a licensed pharmacist he cannot be found guilty of violating two statutory provisions of the CSDDCA which by their very terms do not apply to pharmacists. Because appellant was wrongly charged and convicted under sections of the CSDDCA which expressly exempt licensed pharmacists, we must reverse the conviction. We therefore need not address the other arguments raised.

Section 780-113(a)(16), under which appellant was convicted, prohibits the following:

Knowingly or intentionally possessing a controlled or counterfeit substance by a person not registered under this Act, or a practitioner not registered or licensed by the appropriate State Board____

(Emphasis ours). He was also convicted of violating Section 780-113(a)(30), which prohibits:

Except as authorized by this Act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this Act, or a practitioner not registered or licensed by the appropriate State Board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.

(Emphasis ours).

An element of both offenses is that the defendant not be registered under the Act (the CSDDCA) nor be licensed or registered by the appropriate State Board. Commonwealth v. Sojourner, 268 Pa.Super. 488, 408 A.2d 1108 (1979). Once the defendant comes forward with some evidence of licensure or registration, the Commonwealth has the burden of proving non-licensure or non-registration beyond a reasonable doubt. Id.; Commonwealth v. Herman, 288 Pa.Super. 219, 431 A.2d 1016 (1981).

In the present case, appellant introduced into evidence an affidavit from the Commissioner of Professional and Occupational Affairs for the Commonwealth of Pennsylvania. The affidavit attested that Mr. Gordon was a licensed pharmacist on the date of the drug transaction. The Commonwealth introduced no evidence to the contrary. Since the Commonwealth did not show beyond a reasonable doubt that the appellant was not a practitioner once the appellant came forward with evidence that he was a practitioner, the Commonwealth failed to prove one of the elements of the crimes charged.

The Commonwealth argues, however, that appellant does not fall within the definition of “practitioner” as defined in 35 P.S. § 780-102(b) and therefore was not exempt from prosecution under the two sections charged. A “practitioner” is defined as follows:

(i) a physician, osteopath, dentist, veterinarian, pharmacist, podiatrist, nurse, scientific investigator, or other person licensed, registered, or otherwise permitted to distribute, dispense, conduct research with respect to or to administer a controlled substance, other drug or device in the course of professional practice or research in the Commonwealth of Pennsylvania____

(Emphasis ours). The Commonwealth argues that appellant, a registered pharmacist, was not a “practitioner” because he sold a controlled substance without a prescription outside the four walls of his pharmacy. He therefore was not acting “in the course of professional practice” when he sold the controlled substance, the Commonwealth asserts.

It is not at all apparent from the wording of Section 780-102(b)(i) that the legislature intended that a pharmacist should lose “practitioner” status by acting outside “the course of professional practice.” In fact, the most literal reading of the definitional section in question indicates that the phrase “in the course of professional practice” modifies only the catch-all designation “other person licensed, registered, or otherwise permitted to distribute [etc.] a controlled substance____” It seems to have been assumed that a physician, osteopath, pharmacist, or member of any of the other professions specifically mentioned in Section 780-102(b)(i) would be a person “licensed” or “permitted” to deal with controlled substances. Of course, if a physician, pharmacist, or other practitioner were not properly licensed to practice his profession in the first place, he would be liable to prosecution under the plain terms of Section 780-113(a)(16) and (30).

The assertion that a practitioner is not a practitioner when he acts outside the scope of his practice loses all tenability when we look at the provisions of the CSDDCA which specifically regulate practitioners. Section 780-113(a)(14) of the Act prohibits:

The administration, dispensing, delivery, gift or prescription of any controlled substance by any practitioner ... unless done (i) in good faith in the course of his professional practice; (ii) within the scope of the patient relationship; (iii) in accordance with treatment principles accepted by a responsible segment of the medical profession.

(Emphasis added). The Commonwealth urges us to find subsection (a)(14) applicable only to illegal drug transactions taking place under color of a legitimate medical or pharmaceutical practice, and to find subsections (a)(16) and (30) applicable whenever a practitioner steps out of the confines of his practice to act as a “street dealer.” The Commonwealth supports its theory with dictum from Commonwealth v. West, 270 Pa.Super. 301, 411 A.2d 537 (1979) (allocatur denied), in which we held that a physician who was licensed but not registered by the appropriate State board was still a “practitioner” for purposes of prosecution under subsection (a)(14). It is true the Court in West referred to the purpose of subsection (a)(14) to regulate practitioner abuse rather than “street transactions,” but we used this reference only to demonstrate that Dr. West was indeed a “practitioner” in the common-sense meaning of that term.

We think the more pertinent case is Commonwealth v. Herberg, 306 Pa.Super. 245, 452 A.2d 536 (1982), in which we echoed West with the observation that “practitioner” is a “commonly used term[]” with an “easily understood meaning[].” Id., 306 Pa.Superior Ct. at 250-51, 452 A.2d at 538. We also stated in Herberg, however, that acting “outside the scope” of professional practice is an element of the crime defined in subsection (a)(14). Id., 306 Pa.Superior Ct. at 250, 452 A.2d 536. Obviously, then, acting outside the bounds of professional practice does not change a practitioner into a non-practitioner for purposes of the statute. Accord Commonwealth v. Comins, 371 Mass. 222, 356 N.E.2d 241 (1976), cert. denied, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793 (1977).

Under Section 780-113(a)(14) the prosecution has to prove first, that the defendant was a practitioner, and second, that the practitioner acted outside the scope of his professional practice. Where and under what circumstances an illegal transaction occurred is simply given no significance under the Act. If this Court were to accept the Commonwealth’s contention that a practitioner becomes a non-practitioner whenever “common sense” indicates that he has acted outside the scope of his professional practice, Section 780-113(a)(14) would be rendered meaningless. Once the Commonwealth proved the element that the practitioner acted outside the scope of his practice, proof of the other element would be impossible because the defendant in question would no longer be a practitioner. The legislature could not have intended such an absurd result.

Moreover, we find that the overall statutory scheme clearly supports appellant’s argument that his status as a practitioner exempts him from prosecution under Section 780-113(a)(16) and (30). The term “practitioner” is defined only in Section 780-102(b) of the Act and therefore means the same thing throughout the Act. Some parts of the Act by their terms apply only to practitioners (e.g., § 780-113(a)(14)); other sections apply only to non-practitioners (e.g., § 780-113(a)(16) and (30)); and still others apply to all persons (e.g., § 780-113(a)(12); § 780-125). The legislature, rather than treat practitioners and non-practitioners alike, exempted practitioners from provisions relating to possession or distribution of controlled substances and supplemented these provisions with prohibitions directed to the abuse of the practitioner’s privilege to practice his or her profession. See also 35 P.S. § 780-123.

It is our obligation to strictly construe penal statutes. 1 Pa.C.S. § 1928(b)(1); Commonwealth v. Sojourner, su pra. Appellant could and should have been prosecuted under § 780-113(a)(14) of the CSDDCA. Unfortunately, he was improperly charged under § 780-113(a)(16) and (30). A strict construction of the provisions under which appellant was charged shows that the Commonwealth failed to prove an essential element in both offenses, namely, his non-practitioner status. Since appellant was indeed a practitioner as defined in the Act, he cannot be guilty of the crimes he was charged with, and his conviction must be reversed. See Commonwealth v. Boyd, 315 Pa.Super. 308, 461 A.2d 1294 (1983) (appeal granted and vacated in part, December 27, 1983).

Judgment of sentence reversed; appellant discharged.

OLSZEWSKI, J., files a concurring statement.

OLSZEWSKI, Judge,

concurring:

I reluctantly concur. The majority, in its opinion, has correctly analyzed the law as applied to the facts of this case. It gives me pause, however, to consider that appellant must go free not for want of evidence but because the prosecution failed to charge him under the applicable section, 35 P.S. § 780-113(a)(14).


author:
BECK, Judge:
      OLSZEWSKI, Judge,

text:
    493 A.2d 695
    Sanford L. WILK and Joan Wilk, H/W, Appellants, v. GIRARD BANK.
    Superior Court of Pennsylvania.
    Argued August 23, 1984.
    Filed March 29, 1985.
    Reargument Denied June 6, 1985.
    Petition for Allowance of Appeal Denied Nov. 12,1985.

      Alan J. Dion, Philadelphia, for appellants.
    Alan G. Rosenbloom, Philadelphia, for appellee.
    Before CIRILLO, OLSZEWSKI and BECK, JJ.
   BECK, Judge:

The sole issue in this appeal is whether the lower court abused its discretion in granting appellee Girard Bank’s petition to open the judgment entered on a compulsory arbitration award in favor of appellants Wilk. Finding no abuse of discretion, we affirm the lower court’s order as to the opening of the judgment.

The relevant facts are ably summarized in the lower court’s opinion as follows:

[Appellants] commenced an action in trespass against Girard____ [T]he action was referred to compulsory arbitration. Counsel for Girard, Carolyn A. Johnson, filed an entry of appearance and an Answer to [appellants’] Complaint.
On April 4,1982, Ms. Johnson withdrew her appearance with regard to this matter. Christopher H. Wright entered his appearance on behalf of Girard on that date. Although the Prothonotary time-stamped the withdrawal and entry of appearances on April 12, 1982, no docket entry reflected the change of counsel.
In July and August, 1982, the notice of the date and time of the arbitration hearing was published in the Legal Intelligencer under the name of C. Johnson, who no longer represented Girard. The arbitration hearing was held on August 11, 1982. Girard’s counsel did not appear. The arbitration panel awarded [appellants] $3,000.00 on August 13, 1982.
... Girard’s counsel [Christopher H. Wright] claims that he first learned of the award on August 19, 1982. He immediately contacted Ms. Mary Alieva, the administrator of the compulsory arbitration program, to advise her that he did not receive actual notice of the hearing. Pursuant to counsel’s telephone conversation with Ms. Mary Alieva, counsel submitted a letter to explain his failure to appear. Girard did not file an appeal from the award apparently in reliance upon Ms. Alieva’s suggestion that a letter would protect [Girard’s] rights. [Girard’s] counsel initially requested that the award be vacated and that a panel hold a new hearing. The Court took no action until the appeal period had expired. On September 30, 1982, Girard filed [its] ... petition to open the judgment, forty days after its counsel learned of the award.

Lower Court Opinion at 1-3.

We now consider whether, in light of the actions taken by appellee to protest the arbitration award, the lower court could properly accord appellee relief from the award.

First, appellants contend that the lower court should have dismissed appellee’s petition to open because the petition was not filed within the appropriate appeal period. Pursuant to Pa.R.C.P. No. 1307(c), a party must contest an abitration award within thirty days after entry of the award on the docket. Rule 1307(d) provides, however, that the filing of an application for the court to mold an arbitration award stays the running of the thirty-day appeal period until disposition of the application after which “[a]ny party may file a notice of appeal within the thirty-day appeal period ... or within ten days after disposition of the application, whichever is later.”

The arbitration award in the case sub judice was docketed on August 13, 1982, and on September 30, 1982, appellee filed its petition to open the judgment entered on the award. In the interim between the docketing of the award and the filing of the petition to open, appellee sent a letter to the arbitration program administrator to explain that its failure to participate in the arbitration proceeding resulted from inadequate notice of the hearing date. The lower court reasoned that appellee’s letter to the arbitration program administrator should be viewed as a Rule 1307(d) application which stayed the running of the thirty-day appeal period. Lower Court Opinion at 3-4.

Rule 1307(d) permits applications to the court to mold an award only “[wjhere the record and the award disclose an obvious and unambiguous error in the award in mathematics or language.” But appellee’s letter did not seek correction of a clerical error in the arithmetic calculation or wording of the arbitration award. Rather, by alleging improper notice of the hearing date, appellee’s letter asserted grounds for a new hearing. We realize that the trial court’s novel theory produced a just result. We reach the same result but through a different route.

Since appellee’s failure to file its petition within the thirty-day appeal period of Rule 1307(c) apparently stemmed from appellee’s reliance upon the advice of a court officer and was not attributable to negligence on the part of appellee, we hold that the lower court was empowered to allow appellee to protest the award after the expiration of the thirty-day appeal period, i.e., the lower court could properly permit an appeal nunc pro tunc. Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979); Gallardy v. Ashcraft, 288 Pa.Super. 37, 430 A.2d 1201 (1981); MacKanick v. Rubin, 244 Pa.Super. 467, 368 A.2d 815 (1976).

Next, appellants argue that the lower court should have dismissed appellee’s petition because Pa.R.C.P. No. 1308 requires that a challenge to a compulsory arbitration award be presented in the form of a notice of appeal for a trial de novo.

The Explanatory Note accompanying Rule 1308 states that

[t]he Rules [Pa.R.C.P. Nos. 1307-11] do not continue the practice [in Section 26 of the Act of June 16, 1836, P.L. 715, as amended, 5 P.S. § 57] of petitioning to set aside an award for corruption or misbehavior [of the arbitrators]. Hearings or depositions on the petition proceedings could delay the proceedings. Rule 1311(b) creates quasi-judicial immunity for the arbitrators with respect to their official actions and they cannot be called to testify. As a practical matter, if the fraud or corruption were proved, remand and the appointment of a new panel could be the only relief. Trial de novo is preferable since it expedites the proceedings. The court would, of course, have power to punish the attorney-arbitrators involved for any professional misconduct that could be proved.

Thus, we agree with appellants that under the civil procedural rules, appellee’s proper course for attacking the ex parte arbitration award would have been the filing of a Rule 1308 notice of appeal for a trial de novo. But a review of the pertinent circumstances of this case convinces us that in the interests of justice, the instant appellee should not be denied relief because it filed a petition to open judgment rather than a notice of appeal.

Although the lower court had the authority to grant appellee the opportunity to appeal nunc pro tunc for a trial de novo, the lower court, instead, accepted appellee’s petition to open judgment. Having ruled solely on the basis of the parties’ petition and answer (no depositions were taken) that appellee satisfied the criteria for opening a default judgment in trespass, the lower court granted appellee’s petition to open and thereby put the parties in the posture of having to relitigate the dispute which they had submitted to arbitration. This is precisely the position in which the parties would have found themselves if appellee had initially filed a notice of appeal for a trial de novo. Since appellants have not averred that they have been prejudiced by appellee’s actions and the court’s response thereto, and since we do not perceive any prejudice evident from the record, we affirm the lower court’s order opening the judgment on the arbitration award. See Briga v. Ken-Tuck Signs, Inc., 279 Pa.Super. 537, 421 A.2d 329 (1980); Menarde v. Southeastern Pennsylvania Transportation Co., 224 Pa.Super. 536, 309 A.2d 109 (1973).

Accordingly, we affirm the lower court’s order as to the opening of the judgment entered on the arbitration award. We remand this matter for a trial de novo before the lower court in accordance with the applicable rules of civil procedure. Jurisdiction is relinquished.

OLSZEWSKI, J., files dissenting opinion.

OLSZEWSKI, Judge,

dissenting:

I respectfully dissent. The rules anticipate the problem faced by counsel, an award entered in his absence. As the note to Rule 1303(b) makes clear: “[I]f a defendant does not appear, and the court has not ordered a continuance, the arbitrators [shall] proceed to hear the matter and enter an award. The remedy for dissatisfaction with the award is to appeal.” Pa.R.C.P.Rule 1303, 42 Pa.C.S.A., Explanatory Note — 1981. Rule 1308 prescribes the method for perfecting an appeal from the arbitrators’ award. Counsel, failing to follow these rules, has forfeited his client’s rights.

The majority seeks to soften this harsh result. Admittedly, our policy favors liberal construction of the rules. See Pa.R.C.P., Rule 126, 42 Pa.C.S.A. I am mindful, too, of our Supreme Court’s decision in Brogan v. Holmes Electric Protective Co., 501 Pa. 234, 460 A.2d 1093 (1983). I believe, however, that a line must be drawn. In reaching my decision today, I have considered both the equities of the instant case and the need for order in our overcrowded court system. It seems little enough to charge a lawyer with knowledge of the rules.

I would reverse the lower court’s order.

      . The Explanatory Note accompanying Rule 1307 details the narrow uses of Rule 1307(d). Rule 1307(d) may be applied
      [i]n the rather rare case of a clear error of language or mathematics, obvious on the face of the record and not subject to any ambiguity, for example, misspelling a party’s name in the award or miscalculating interest at six percent on a fixed amount for a fixed number of days, and no party wishes to appeal.
      ... [T]he court may not mold the award beyond the extent it could mold it if it were a verdict of a jury. That standard will be found in ... Maize v. Atlantic Refining Co., 352 Pa. 51, 41 A.2d 850 (1945) [Where it is undisputed that the recorded verdict does not reflect the verdict that the jury intended and where there is no dispute as to what the jury intended, the court may mold the verdict. The court may not substitute its judgment for that of the jury's.].

        . With respect to the standard for opening a default judgment in trespass and appellee's having met said standard in this case, we adopt the pertinent portions of the lower court opinion.

      . Our decision in this case should not be read as our condoning general noncompliance with the rules of civil procedure governing compulsory arbitration.


author: BROSKY, Judge:

text:
    493 A.2d 699
    Gretchen OSWALD, Appellant, v. Evelyn M. OLDS.
    Superior Court of Pennsylvania.
    Argued Aug. 6, 1984.
    Filed April 4, 1985.

      Robert N. Clarke, Washington, appellant.
    Sidney Baker, Pittsburgh, for appellee.
    Before BROSKY, WATKINS and HESTER, JJ.
   BROSKY, Judge:

This appeal is from an order sustaining appellee’s preliminary objections in an action over the right to the proceeds of a life insurance policy. The Court of Common Pleas of Washington County concluded that venue over this case did not lie with it. The court erred in that regard. We hold that venue was proper.

On the substantive issue concerning the change in beneficiary and the proceeds of an insurance policy, we note that once appellant had notice of the beneficiary change, she should then have challenged that alteration, a right given her under the Divorce Code. In the instant case, having not done so for nearly a year, and death occurred in the meantime, she can not now be heard to assert it after her husband’s death since the divorce action abated upon death. As equitable distribution is an incident of divorce, her right to that also ceased with her husband’s death. Furthermore, the proceeds of a life insurance policy on a spouse cannot, by its nature, be property acquired during the marriage since it comes into being upon death and cannot, therefore, be marital property subject to equitable distribution.

The relevant facts are as follows. Appellant and the decedent, Isaac John Haviland, were married at the time a life insurance policy on Haviland was purchased from New York Life Insurance Company. Appellant was the designated beneficiary of this policy. In August of 1981 appellant commenced a divorce action. Subsequent to receiving process of this action, Haviland changed the beneficiary of the policy from appellant to appellee. Appellant was made aware of this change through answers to interrogatories in the divorce proceeding on March 23, 1982. However, during the next eleven months she made no objection in court to that change. Haviland died in February of 1983 while the divorce action was still in progress. Appellant then commenced suit against the carrier and the new beneficiary. The carrier has since been allowed to withdraw from the case, with the proceeds of the policy being placed in escrow.

Venue

The court below found venue was improper in Washington County. We find that this was in error. This action was brought against appellee, a resident of nearby Allegheny County, and against the insurance carrier, a foreign corporation. Under Pa.R.C.P. 1006(c), an action can be brought where venue against one of the co-defendants is proper. Ro-Med Constr. Co. v. Bartley Co., 239 Pa.Super. 311, 361 A.2d 808 (1976). Venue here was proper against the carrier. See Pa.R.C.P. 2179(a)(2). The fact that the carrier was subsequently dropped from the case is of no import vis-a-vis venue, as venue is evaluated from the point when service is properly or improperly made. Slezynger v. Bischak, 224 Pa.Super. 552, 307 A.2d 405 (1973). Having concluded that venue was proper, we will now go on to consider the case on its merits.

Change of Beneficiary

Appellant argues that the decedent improperly changed the beneficiary of his life insurance policy from herself to appellee. It was the pendency of the divorce action between herself and the decedent, she contends, which made this change impermissible. This is not a correct statement of the law. Appellee’s decedent did not lack the ability to change the beneficiary during the pendency of the divorce proceedings; he only lacked the ability to change the status without notifying appellant. While appellant was not notified at the time the change was made, she was notified at a later time through Interrogatories requested by her counsel. Appellant then had nearly a year in which she could have challenged that change. She did not do so and, accordingly, waived her right to do so when death of the insured occurred. Absent a court order preventing or rescinding the beneficiary change, appellee’s decedent had the right to change the beneficiary designation. Provident Mutual Insurance Co. of Phila. v. Ehrlich, 508 F.2d 129, 134 (3rd Cir.1975).

Upon the death of appellee’s decedent, the divorce action abated. Haviland v. Haviland, 333 Pa.Super. 162, 481 A.2d 1355 (1984); Upperman v. Upperman, 119 Pa.Super. 341, 181 A. 252 (1935). As a consequence of that abatement she can no longer assert her rights under the Divorce Code, including equitable distribution rights.

Even if appellant’s right to equitable distribution did not cease with the abatement of the divorce action by appellee’s decedent’s death, the proceeds would still not constitute marital property, which is defined as property acquired during the marriage. 23 Pa.C.S. 401(f). The proceeds of a life insurance policy on a spouse cannot, obviously, be acquired during the marriage since proceeds are paid upon death. Consequently, that is not an asset acquired during lifetime or marriage. While the potential of subsequently acquiring the proceeds did, naturally, arise during the marriage, that could never arise to an actuality during the marriage.

Order affirmed.

      . The Court of Common Pleas also went on to rule on the merits of appellant’s case, against her. Of course, once it had decided that venue was not in Washington County, it was improper for the trial court to treat the substantive question. However, since the court below has done so and since we conclude that venue was proper, we will treat not only the venue issue, but also the case on its merits.

      . See Lazovitz v. Lazovitz, 307 Pa.Super. 341, 351-2, 453 A.2d 615, 619-20 (1982) and 23 Pa.C.S. § 401(i).

      . Under a similar statute, the Superior Court of our sister state of New Jersey came to the same result. Corrigan v. Corrigan, 390 A.2d 141 (1978). While Corrigan relied on some language peculiar to its equitable distribution statute, we consider it worthy of note here.
      Appellee concedes that prior to appellant’s death the cash surrender value of the policy was marital property. However, that value became non-operative since the cash surrender value merges with the proceeds on death.


author: ROWLEY, Judge:

text:
    493 A.2d 701
    Matthew SHIELDS, Jr., Appellee, v. C.D. JOHNSON MARINE SERVICE, INC., a Corporation, and Charles D. Johnson, Trustee Ad Litem For C.D. Johnson Marine Service, Inc., Retirement and Profit Sharing Plans, Appellants.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1984.
    Filed April 4, 1985.
    Reargument Denied June 14, 1985.

      Nancy Cusano, Pittsburgh, for appellants.
    Philip P. Lope, Zelienople, for appellee.
    Before ROWLEY, OLSZEWSKI and POPOVICH, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

The issue presented by this appeal is whether the Pennsylvania Courts of Common Pleas have subject matter jurisdiction over appellee’s claim that he is entitled to recover additional employee benefits under the retirement plans of his former employer, C.D. Johnson Marine Service, Inc., (Marine Service), based on Section 411(d)(3) of the Internal Revenue Code, 26 U.S.C. § 411(d)(3). The trial court assumed jurisdiction and entered judgment on the jury’s verdict in favor of appellee, Matthew Shields, Jr. Because we have concluded that the trial court did not have jurisdiction, we reverse.

Appellee filed a complaint in assumpsit in the Butler County Court of Common Pleas on April 14, 1982. In Count I appellee sought payment of wages allegedly due pursuant to an oral employment contract, whereby appellee was to be paid a percentage of revenues generated by engineering and inspection services he provided to his employer’s customers. In Count II appellee sought full payment of his “account balances” under the retirement plans maintained by Marine Service in which appellee participated while he was employed by it. Appellant’s answer to the complaint denied the existence of an oral contract based on a percentage of gross revenues (Count I) and denied that appellant was entitled to his full account balances, asserting that he was only 70% vested in the plans (Count II). The trial in this case commenced on May 16, 1983 and resulted in a jury verdict in favor of appellee on both counts. Post-trial motions, argued before the court en banc, were denied and judgment was entered on the jury’s verdict on June 27, 1983.

Appellant, Charles D. Johnson, Trustee Ad Litem for Marine Service Retirement and Profit Sharing Plans (Johnson) has appealed challenging only the judgment entered on the verdict on Count II of appellee’s complaint. On appeal, appellant argues that state courts do not have subject matter jurisdiction over the claims set forth in Count II of appellee’s complaint. Because we find that this contention has merit, we do not address appellant’s argument that the evidence presented was insufficient to support the verdict.

The facts relevant to our disposition of this case, briefly stated, are as follows. Appellee commenced his employment with Marine Service on December 1, 1974. In addition to receiving a salary and bonuses, the parties agreed that appellee participated in two retirement plans maintained by Marine Service. The plans were a pension plan and a profit sharing plan. Appellee participated in both plans for seven full fiscal years until his employment with Marine Service terminated on December 1, 1981. Although we were not provided with a copy of the plans involved, either in the reproduced record or the original record, the parties have agreed that an employee’s entitlement to the monies contributed by the employer under the terms of the plan “vested” at a rate of 10% for each year of employment with Marine Service. Appellant conceded that appellee is entitled to 70% of the employer’s accumulated contributions under the terms of these plans since he had completed seven years of service as an employee. The only dispute herein is whether appellee is entitled to the remaining 30% of accumulated employer contributions on the theory that a “partial termination” of the plans occurred pursuant to Section 411(d)(3) of the Internal Revenue Code (I.R.C.), 26 U.S.C. § 401. An analysis of appellee’s claim shows that it is based on a consideration of federal income tax principles as related to employers’ pension and profit sharing plans.

Section 401 of the I.R.C. sets forth requirements that a plan must meet in order to qualify for certain tax benefits, for example, tax exempt status of the trust created by a plan and tax deductions for employer contributions to the plan. See Rothlein v. Armour & Co., 377 F.Supp. 506 (W.D.Pa.1974). Section 401 requires, inter alia, that the plan must satisfy the requirements of Section 411 of the I.R.C., 26 U.S.C. § 411, regarding minimum vesting requirements. See 26 U.S.C. § 401(a)(7). Section 411(d)(3) provides, in pertinent part:

Termination or partial termination; discontinuance of contributions. — Notwithstanding the provisions of subsection (a), a trust shall not constitute a qualified trust under section 401(a) unless the plan of which such trust is a part provides that—
(A) upon its termination or partial termination, or
(B) in the case of a plan to which section 412 does not apply, upon complete discontinuance of contributions under the plan,
the rights of all affected employees to benefits accrued to the date of such termination, partial termination, or discontinuance, to the extent funded as of such date, or the amounts credited to the employees’ accounts, are nonforfeitable.

26 U.S.C. § 411(d)(3).

Appellee argues that he is entitled to 100% vesting in the monies contributed by his employer because a “partial termination” of the plans occurred under Section 411(d) when Marine Service withdrew from the engineering business. The question whether our courts have jurisdiction in this case is controlled, however, by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq., which applies to all pension and profit sharing plans with the exception of governmental, church and certain other specific plans, 29 U.S.C. § 1003. Section 1132(e)(1) of ERISA provides;

Except for actions under subsection (a)(1)(B) of this section, the district courts of the United States shall have exclusive jurisdiction of civil actions under this subchapter brought by the Secretary or by a participant, beneficiary, or fiduciary. State courts of competent jurisdiction and district courts of the United States shall have concurrent jurisdiction of actions under subsection (a)(1)(B) of this section.

29 U.S.C. § 1132(e)(1). Thus, state courts have concurrent jurisdiction with federal courts over civil actions involving pension and profit sharing plans only under subsection (a)(1)(B). That section provides, in pertinent part:

(a) A civil action may be brought—
(1) by a participant or beneficiary—
* * * * * *
(B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan;

29 U.S.C. § 1132(a)(1)(B) (emphasis added).

The burden, therefore, was on appellee to prove that his action was brought to recover benefits due him under the terms of the plans involved herein in order to establish subject matter jurisdiction in the state courts. However, there are no copies of the plans either in the reproduced record or the record certified to us from the trial court, and appellee has failed to cite to the sections in the plans upon which his claim is based. Appellee’s sole contention is that a “partial termination” of the plans occurred and that, on the basis of Section 411(d)(3) of the I.R.C., he is entitled to 100% vested rights in accumulated employer contributions. Appellee’s brief states that “[b]y the express terms of both plans in this case, as with all plans that qualify under the Internal Revenue Code, upon partial termination of a plan the participant is fully vested in his account balances.” (Appellee’s brief at p. 4). We point out that this particular language is not contained in Section 411(d)(3). Furthermore, as previously observed, appellee does not refer to the provisions in the plans which contain such language and unless the terms of the plan provide that partial termination results in 100% vesting, our courts do not have jurisdiction over this cause of action.

We note that if the employer denied accrued benefits in contravention of Section 411(d) or if the terms of the plans were inconsistent with the requirements of that section, the plan might not be granted a qualified status, resulting in serious tax consequences to the employer. Whether or not an employee could recover on the basis of such a violation, however, would depend on whether an implied private right of actions exists under Section 411(d). That question is under the exclusive jurisdiction of the federal courts, 29 U.S.C. § 1132(e)(1).

Accordingly, since the record is silent regarding the terms of the plans and appellee has not shown that his suit is based on the terms of the plans, we find that the trial court did not have subject matter jurisdiction to decide this case. Therefore, it not appearing that appellee’s claim is based on the terms of the retirement plans but that it is based upon Section 411(d)(3) of the I.R.C. the Judgment entered on Count II of appellee’s complaint is reversed.

      . Appellant did not raise the issue of subject matter jurisdiction in the trial court; however, lack of subject matter jurisdiction is a defense that cannot be waived. Pa.R.C.P. 1032(2).


author: WATKINS, Judge:

text:
    493 A.2d 705
    COMMONWEALTH of Pennsylvania, Appellant v. Catheryn Lee PRESS.
    Superior Court of Pennsylvania.
    Submitted Jan. 21, 1985.
    Filed April 26, 1985.
    Reargument Denied July 1, 1985.

      Ray F. Gricar, Assistant District Attorney, Bellefonte, for Commonwealth, appellant.

      Edward S. Blanarik, Jr., Assistant Public Defender, Am-bridge, for appellee.
    Before POPOVICH, WATKINS and LIPEZ, JJ.
   WATKINS, Judge:

This is an appeal from an order of the Court of Common Pleas of Centre County dismissing the charges against the defendant-appellee, Catheryn Lee Press. On October 7, 1983, the appellee Catheryn Lee Press was arrested and charged with driving under the influence of alcohol or a controlled substance and a summary violation of the Motor Vehicle Code. After routine processing, appellee was released from custody pursuant to Pa.R.Crim.Pro. 130(b). On October 20, 1983, the arresting officer filed a criminal complaint and the district justice issued a summons charging appellee with driving while under the influence and a summary motor vehicle violation. At the preliminary hearing, appellee moved to dismiss the charges, citing a vi Jation of Pa.R.Crim.Pro. 130(d). The motion was denied aad after hearing, appellee was ordered held for court.

After entering a plea of “not guilty”, appellee filed an omnibus pre-trial motion which contained, inter alia, a motion to dismiss the charges with prejudice due to the violation of Pa.R.Crim.Pro. 130(d). After hearing on the motion, the Honorable David E. Grine granted the motion and dismissed the charges. The lower court affirmed its prior ruling after rehearing and argument, and the Commonwealth has appealed to this Court.

The Commonwealth raises the following issues on appeal:

1. Is the word “shall” as used in Pa.R.Crim.Pro. 130(d) directory rather than mandatory?

2. Should Rule 130(d) be read in conjunction with Rule 150?

3. Must prejudice be shown before a violation of Rule 130(d) results in a dismissal of the charges?

As to the first issue raised by the Commonwealth, Pa.R. Crim.Pro. 130 provides in pertinent part as follows:

(b) When a defendant has been arrested without a warrant for driving under the influence of alcohol or controlled substances, the arresting officer may when he deems it appropriate, promptly release the defendant from custody rather than taking him before the issuing authority ...
(d) When a defendant is released pursuant to paragraphs (b) or (c), a complaint shall be filed against the defendant within five (5) days of the defendant’s release. Thereafter, a summons, not a warrant of arrest, shall be issued and the case shall proceed as provided in Rule 110. [Emphasis ours]

The word “shall” contained in the first sentence of Pa.R.Crim.Pro. 130(d) is couched in mandatory terms and the only sanction available is the dismissal of the charges against the defendant. The failure to file a criminal complaint within the time limitation prescribed by Pa.R.Crim. Pro. 130(d) is not a procedural defect such as to be governed by Pa.R.Crim.Pro. 150. Therefore, appellee was not required to show actual prejudice before the information against her could be dismissed.

Order affirmed.

POPOVICH, J., dissents.


author: WIEAND, Judge:

text:
    493 A.2d 706
    Edgar C. RANKER, Jr., Appellant, v. SKYLINE CORPORATION, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 9, 1984.
    Filed May 10, 1985.

      Daniel W. Shoemaker, York, for appellant.
    Nevin Stetler, York, for appellee.
    Before WICKERSHAM, WIEAND and DEL SOLE, JJ.
   WIEAND, Judge:

Edgar C. Ranker, Jr. purchased a travel trailer from an authorized dealer of Skyline Corporation and took delivery thereof on September 15, 1979. On October 31, 1983, he filed a complaint by which he sought to rescind the sale and recover the purchase price. In support thereof he alleged that Skyline Corporation had breached express and implied warranties forming a part of the contract of sale. The trial court sustained preliminary objections in the nature of a demurrer and dismissed the complaint because it was time barred. Ranker appealed. We affirm.

The statute of limitations is properly raised by answer and new matter pursuant to Pa.R.C.P. 1030 and not by preliminary objection. However, if no objection is made to the raising of the statute of limitations via preliminary objections, the procedural objection is waived, and the court may proceed to consider on preliminary objection the effect of the statute of limitations. See: Lamp v. Heyman, 469 Pa. 465, 470-471, 366 A.2d 882, 885 (1976); Donnelly v. DeBourke, 280 Pa.Super. 486, 494 n. 4, 421 A.2d 826, 830 n. 5 (1980), overruled on other grounds, Bond v. Gallen, 292 Pa.Super. 207, 437 A.2d 7 (1981); Cooper v. Downington School District, 238 Pa.Super. 404, 407, 357 A.2d 619, 621 (1976).

The applicable statute of limitations is found at 13 Pa.C.S. § 2725 and provides as follows:

(a) General rule. — An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued____
(b) Accrual of cause of action. — A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.

Unless there is a reason why appellant’s cause of action did not accrue upon delivery of the trailer, a literal application of the statute clearly requires a holding that appellant’s cause of action is barred by the lapse of more than four years before commencing suit.

Appellant suggests two reasons why his action is not time barred. He argues first that appellee’s express agreement to correct manufacturing defects extended to future performance of the goods and that, therefore, the period of limitation did not begin to run until after appellee’s attempts to correct defects were proven to be unsuccessful, as that was when the breach of the agreement to correct manufacturing defects was discovered. Within two weeks after taking delivery, he alleged, he had found that the trailer leaked. Skyline, pursuant to its written warranty, sent the trailer to its plant for repair. Upon return of the trailer from the plant, appellant determined that it still leaked. The trailer was again returned to appellee late in 1981 and twice in 1982, but appellee’s attempts to halt the leaking were unsuccessful.

The courts of this Commonwealth have not heretofore been called upon to decide whether a promise to repair defects within a specified period extends to future performance. The courts of other jurisdictions, however, have generally refused to interpret an express warranty as extending to future performance unless the warranty agreement contains an explicit and unambiguous statement that the warranty applies to future performance. See: Voth v. Chrysler Motor Corp., 218 Kan. 644, 545 P.2d 371 (1976) (written twelve months/12,000 mile repair warranty on automobile did not warrant future performance but only that manufacturer would repair or replace defective parts); Centennial Insurance Co. v. General Electric Co., 74 Mich.App. 169, 253 N.W.2d 696 (1977) (written warranty on electrical transformer that seller would correct any defect appearing in transformer within one year of shipment specified buyer’s remedy if breach discovered during that time, but was not warranty of future performance); Poppenheimer v. Bluff City Motor Homes, 658 S.W.2d 106 (Tenn. App.1983) (twelve months/12,000 mile repair warranty covering motor home did not explicitly extend to future performance of the motor home). See also: Cuthbertson v. Clark Equipment Co., 448 A.2d 315 (Me.1982); Shapiro v. Long Island Lighting Co., 71 A.D.2d 671, 418 N.Y.S.2d 948 (1979); Mountain Fuel Supply Co. v. Central Engineering & Equipment Co., 611 P.2d 863 (Wyo.1980). Accord: Commissioners of Fire District No. 9 v. American La France, 176 N.J.Super. 566, 424 A.2d 441 (1980). Cf. O’Brien v. Eli Lilly & Co., 668 F.2d 704 (3d Cir.1981); Matlack, Inc. v. Butler Manufacturing Co., 253 F.Supp. 972 (E.D.Pa.1966).

Skyline’s written warranty provided for correction of manufacturing defects reported to it within one year after delivery. That language, however, did not explicitly extend the warranty to future performance. It did not pertain to performance of the trailer, but to the condition of the trailer at delivery. That the warranty defined the buyer’s remedy if a defect were discovered and reported within one year after delivery did not extend the warranty to future performance. An extension of the period of limitation under 13 Pa.C.S. § 2725(b) will not be permitted except in those instances in which there is a clear and unambiguous expression of an intent that the warranty shall pertain to future performance. See: Annot., 93 A.L. R.3d 690 (1979).

14] Were we to hold that Skyline’s warranty extended to future performance as envisioned by 13 Pa.C.S. § 2725(b), the fact is that Ranker discovered the defect approximately two weeks after taking delivery on September 15, 1979, and not, as Ranker argues, when Skyline returned the trailer to him in the spring of 1981 after attempted repairs. The present action was commenced October 31, 1983, more than four years after the date of discovery. Thus, even under such an application of the statute, appellant’s action would be time barred.

Appellant argues in the alternative that the four year statute of limitátions was tolled by Skyline’s unsuccessful attempts to repair the trailer. The repair doctrine, as Ranker’s argument is known, provides for the tolling of the statute of limitations where (a) the seller has attempted to make repairs and (b) the seller represents that the repairs will cure the defect. See: Annot., 68 A.L.R.3d 1277 (1976). In effect, the doctrine is merely a particularized form of estoppel. A.J. Aberman, Inc. v. Funk Building Co., 278 Pa.Super. 385, 400-401, 420 A.2d 594, 602 (1980).

The repair doctrine has not been adopted in Pennsylvania. See: A.J. Aberman, Inc. v. Funk Building Co., supra. See also: Bobo v. Page Engineering Co., 285 F.Supp. 664 (W.D.Pa.1967), aff'd, 395 F.2d 991 (3d Cir.1968). The courts of this state and of other states have said that there can be no estoppel merely because an attempt has been made to repair'-a-defect. For an estoppel to arise which will toll the statute of limitations, there must also be a representation that the repairs have cured or will cure the defect. See: A.J. Aberman, Inc. v. Funk Building Co., supra; Annot., 68 A.L.R.3d 1277 (1976).

Skyline’s attempted repairs in this case were not adequate to toll the statute of limitations. A representation that the repairs would correct the defect was also necessary. This, however, is not present in this case. There has been no averment that Skyline made any representations that its repairs would cure the defect. See: A.J. Aberman, Inc. v. Funk Building Co., supra, 278 Pa.Super. at 402, 420 A.2d at 602-603.

The statute of limitations must be applied according to its terms. After appellant learned of a defect in his trailer, he was required to exercise due diligence and take all necessary steps to inform himself of his legal rights. See: Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983); Platts

v. Government Employees Insurance Co., 301 Pa.Super. 379, 382, 447 A.2d 1017, 1018 (1982). The statute of limitations will not be tolled or extended by good faith efforts made by a seller to correct alleged defects in his product. A.J. Aberman, Inc. v. Funk Building Co., supra. Accord: Binkley Co. v. Teledyne Mid-America Corp., 333 F.Supp. 1183, 1187 (E.D.Mo.1971), aff'd, 460 F.2d 276, 277 (8th Cir.1972); Zahler v. Star Steel Supply Co., 50 Mich.App. 386, 213 N.W.2d 269 (1973); Tomes v. Chrysler Corp., 60 Ill.App.3d 707, 18 Ill.Dec. 71, 377 N.E.2d 224 (1978); Bowman v. Oklahoma Natural Gas Co., 385 P.2d 440 (Okl.1963). Any other rule would discourage attempts to correct defects in products sold pursuant to warranty.

Order affirmed.

      . The written warranty provided: "Skyline proudly warrants that manufacturing defects reported to Skyline within one year after original retail delivery of your new travel trailer by an authorized dealer will be corrected without charge and within reasonable time.”

      . It was held in Perry v. Augustine, 37 D. & C.2d 416 (Mercer Cty.C.P. 1965), by way of example, that an express warranty that a heating system would "be able to heat at 75 degrees inside and at minus 20 degrees outside” was a warranty that explicitly extended to future performance.