text:
    513 A.2d 1046
    Helen E. BILLMAN, Administratrix of the Estate of Brian Billman, Deceased, for and In Behalf Of Estate and for and In Behalf Of Helen E. Billman, Next of Kin and Heir-At-Law of Said Brian Billman, Appellant, v. PENNSYLVANIA ASSIGNED CLAIMS PLAN and the Travelers Insurance Company, Appellees.
    Superior Court of Pennsylvania.
    Argued April 7, 1986.
    Filed Aug. 12, 1986.

      William P. Coffin, Easton, for appellant.
    Jeffrey P. Hoyle, Lansdale, for appellees.
    Before CIRILLO, President Judge, and BROSKY, ROWLEY, WIEAND, MONTEMURO, BECK, TAMILIA, POPOVICH and JOHNSON, JJ.
   MONTEMURO, Judge:

This appeal is from the February 12, 1985 order of the Court of Common Pleas of Northampton County granting appellees’ motion for summary judgment. Appellant contends that the court below erred in finding that (1) she was not entitled to work loss benefits as administratrix of decedent’s, Brian Billman’s, estate under the Pennsylvania No-fault Motor Vehicle Insurance Act (No-fault Act) ; (2) she was not entitled to work loss benefits as an alleged “survivor” of decedent under the No-fault Act; and (3) she was not entitled to receive interest on the overdue work loss benefits.

On August 4, 1981, appellant’s son died as a result of an automobile accident. His vehicle was uninsured at the time. Following her appointment as administratrix of her son’s estate, appellant applied to appellee, the Pennsylvania Assigned Claims Plan (PACP), for no-fault benefits on behalf of the estate and on behalf of herself, as decedent’s surviv- or. When appellee, the Travelers Insurance Co. (The Travelers), to whom the claim was assigned, failed to pay the claimed benefits, appellant brought the instant suit. The Travelers has since paid appellant five thousand dollars ($5,000) in survivor’s loss benefits and fifteen hundred dollars ($1,500) in funeral expense benefits as partial settlement of appellant’s claim. On November 8, 1984, appellees filed a motion for summary judgment on the remaining issue of appellant’s entitlement to work loss benefits as either a survivor or as administratrix of her son’s estate. Appellant filed a cross-motion for summary judgment on January 3, 1985. On February 12, 1985, the court below entered an opinion and order granting appellees’ motion for summary judgment and denying appellant’s cross-motion. This appeal followed.

We begin with the observation that in construing the No-fault Act, as in construing any statute, we are guided by the dictates of the Statutory Construction Act, with the principal rule being, “The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.” 1 Pa.C.S. § 1921(a). The General Assembly’s findings and avowed purpose in enacting the No-fault Act are expressed at 40 P.S. § 1009.102 as follows:

(a) Findings. — The General Assembly hereby finds and declares that:
(9) a Statewide low-cost, comprehensive, and fair system of compensating and restoring motor vehicle accident victims can save and restore the lives of countless victims by providing and paying the cost of services so that every victim has the opportunity to:
(A) receive prompt and comprehensive professional treatment; and
(B) be rehabilitated to the point where he can return as a useful member of society and a self-respecting and self-supporting citizen.
(b) Purposes. — Therefore, it is hereby declared to be the policy of the General Assembly to establish at reasonable cost to the purchaser of insurance, a Statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors of deceased victims.

Of appellant’s claims on appeal, we first address her contention that, in her capacity as administratrix of her son’s estate, she is entitled to work loss benefits.

Had Brian Billman’s vehicle been covered, at the time of the accident, by the security required by Section 104 of the No-fault Act, this issue would not detain us. On July 9, 1982, in Freeze v. Donegal Mutual Insurance Company, 301 Pa.Super. 344, 447 A.2d 999 (1982) (en banc), aff'd, 504 Pa. 218, 470 A.2d 958 (1983), a case involving a claim on behalf of an insured decedent’s estate, this court held “that the estate of a deceased victim is entitled to recover work loss benefits under the No-fault Act.” Id. 301 Pa.Super. at 354, 447 A.2d at 1004.

Nearly ten months later, in Ostronic v. Insurance Company of North America, 314 Pa.Super. 146, 460 A.2d 808 (1983), this court considered the impact of a decedent’s uninsured status upon his estate’s claim for basic loss benefits. In Ostronic, as in the case sub judice, the appellants’ claim was presented to the PACP and thereafter assigned to the appellee/insurer, which in turn refused to pay the basic loss benefits sought. With regard to appellants’ claim on behalf of the estate in Ostronic, we affirmed the grant of the appellee/insurer’s motion for summary judgment. In that the issue presently before us was before this court in Ostronic, and because our colleague, the Honorable Harry M. Montgomery, lent his considerable analytical talents to a thoughtful opinion therein, we set forth the following from Ostronic:

We must next examine the claim that the estate is entitled to receive basic loss benefits. In our review of this problem, we are aware that the Act contains two different provisions which appear to suggest directly contrary answers to the question of whether the assigned risk obligor can withhold basic loss benefit payments theoretically due to be paid to the estate of the uninsured owner whose conduct caused the covered losses. The Appellants, of course, point out that the Appellee seeks a ‘setoff’ and direct our attention to Section 106(e), which, as discussed earlier, provides that: ‘Except as otherwise provided in this act, basic loss benefits shall be paid without deduction or setoff.’ The Appellee in turn points out Section 501, also highlighted earlier in this Opinion, which provides that the obligor shall be entitled to recover ‘ ... all the benefits paid and appropriate loss or adjustment costs incurred from the [uninsured] owner or registrant of such motor vehicle or from his estate.’ It is clear that while the assigned risk insurer is obligated to pay basic loss benefits to a living uninsured owner-occupant of a vehicle, the insurer can thereafter file an action pursuant to Section 501 to recover from the same individual the specific benefits paid to him. See Harleysville Mutual Insurance Company v. Schuck, 302 Pa.Super. 534, 449 A.2d 45 (1982). However, when we examine both Section 501 and Section 106(e), it appears to us that when the legislature drafted these two sections it did not intend that the assigned risk obligor would have to pay a benefit to the estate of an uninsured deceased owner-driver, from which estate the obligor would then immediately have a claim for recoupment of all such benefits paid. Section 106(e) simply was not designed to have application in these particular circumstances. Any other construction would create other problems which the legislature could not have desired. One obvious problem would be the practical ability of the insurer to obtain full reimbursement from the estate of an uninsured driver when there are other claims against that estate by other creditors and the size of the estate, including any No-fault benefits received, is exceeded in amount by the various claims. Further, the insurer’s chances of recovery would possibly be adversely affected by the preference accorded such a claim under the Probate, Estates and Fiduciaries Code (Act of June 30, 1972, P.L. 508, No. 164, § 2, 20 P.S. § 3392). In addition to these potential problems, we believe that if the Appellants’ position was held to be proper and it was established that an estate could recover basic loss benefits in these circumstances, it would actually work to discourage drivers from purchasing automobile insurance coverage. This would result because it would be recognized that the benefits of insurance protection might be available to supplement one’s estate, without a countervailing obligation to pay insurance premiums. Only the responsible drivers who purchased insurance would suffer in such circumstances, as their insurance rates would no doubt increase as the insurers’ costs increased. It is evident that the Appellants urge a position which would enable the estates of irresponsible vehicle owners to profit through wrongdoing by the decedent. This result could never have been intended by our legislators in the passage of the No-fault Act.
The situation of a deceased uninsured owner is obviously different from that of a living one with regard to the question of whether an initial payment of benefits should be made by the assigned risk insurer. In Harleysville Mutual Insurance Co. v. Schuck, supra, the reasons for requiring payment to a living victim are clearly explained:
“The rationale for requiring an insurer to pay an occupant’s claim for basic loss benefits before ultimate liability has been determined seems clear. Compensating an injured victim of a vehicular accident is a paramount purpose of the legislatively adopted no-fault scheme. Thus, an injured victim, even if he or she is an uninsured owner, can receive ‘prompt and comprehensive professional treatment’ and thus be rehabilitated and returned as a productive member of society as quickly as possible. See Section 102(a)(9) of the No-fault Act, 40 P.S. § 1009.102(a)(9). Only after this purpose has been accomplished does the statute permit a determination of ultimate liability.” 302 Pa.Super. at 538-39, 449 A.2d at 47.
In the situation of a deceased victim, the justification of speeding treatment and rehabilitation simply does not apply. We can perceive no other legislative intent in the Act to support a rule requiring payment to an uninsured deceased owner’s estate in such a case, with undeserved enrichment for the estate and unrecoverable losses by the assigned risk insurer being the probable results in such circumstances. Therefore, we conclude that the lower court was correct in finding that the Appellee had no obligation to provide the No-fault benefits claimed by the estate in this action, and we hold that the granting of summary judgment as to such claims was correct.

Id. 314 Pa.Super. at 155-57, 460 A.2d at 812-14 (footnotes omitted).

We are of the opinion that Judge Montgomery’s reasoning in Ostronic is unassailable. Mindful as we are of the pertinent standards for reviewing the entry of summary judgment, see Chicarella v. Passant, 343 Pa.Super. 330, 494 A.2d 1109 (1985), Pa.R.C.P. 1035(b), we conclude that the court below properly found appellant’s claim to work loss benefits on behalf of the decedent’s estate to be untenable.

We next confront appellant’s claim to work loss benefits on behalf of herself as an alleged “survivor.”

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

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

(a) General.—
(1) If this act is in effect on the date when the accident resulting in injury occurs, a victim or the survivor or survivors of a deceased victim may obtain basic benefits through the assigned claims plan established pursuant to subsection (b) of this section, if basic loss insurance:
(C) applicable to the injury cannot be identified;

(emphasis supplied). In that “basic loss benefits” consist of “allowable expense”, “replacement services loss”, “surviv- or’s loss”, and “work loss”, 40 P.S. § 1009.103, we are of the opinion that to parcel work loss out of the panoply of survivors’ entitlements permitted by subsection 108(a) would be to render the language of that subsection illusory. “When the words of the statute are clear and free from all ambiguity, the letter of it is not to be disregarded ...” 1 Pa.C.S. § 1921(b). This interpretation also comports with the avowed purpose of the No-fault Act, which was to provide a “system of prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors of deceased victims. ” 40 P.S. § 1009.102(b).

Although this court in Ostronic, supra, and again today, has found the estates of uninsured decedents to be unenti-tled to work loss benefits, the rationale supporting that determination leaves unaltered the propriety of similar claims on behalf of survivors. Our refusal to allow estate claims turns in large part upon our recognition that a decedent, who has failed to comply with the No-fault Act’s requirement that adequate security be obtained, must bear the ultimate risk of loss. Unlike an estate, however, a survivor does not “stand[] in the shoes of the deceased victim,” Freeze, supra, 504 Pa. at 224, 470 A.2d at 961, and therefore the decedent’s culpability should not operate to deny an inculpable survivor his or her entitlements. That is, it is not the survivor who failed to purchase the mandatory insurance coverage.

We accordingly hold that, as an alleged “survivor” of the decedent, Brian Billman, appellant is entitled to recover work loss benefits under the PACP, and therefore the court below erred as a matter of law in granting appellees’ motion for summary judgment with regard to this issue.

Appellant’s final contention is that she is entitled to receive interest on any work loss benefits due from appel-lee, The Travelers. We agree. The No-fault Act provides:

No-fault benefits are overdue if not paid within thirty days after the receipt by the obligor of each submission of reasonable proof of the fact and amount of loss sustained, unless the obligor designates, upon receipt of an initial claim for no-fault benefits, periods not to exceed thirty-one days each for accumulating all such claims received within each such period, in which case such benefits are overdue if not paid within fifteen days after the close of each such period____ Overdue payments bear interest at the rate of eighteen percent (18%) per annum.

40 P.S. § 1009.106(a)(2). In Hayes v. Erie Insurance Exchange, 493 Pa. 150, 155, 425 A.2d 419, 421 (1981), our supreme court held “that where a payment is overdue as defined by § 106, 18% interest is owed on that payment regardless of the ‘good faith’ of the insurer or the ‘reasonable cause’ of the delay.” See also, Steppling v. Pennsylvania Manufacturers’ Association Insurance Co., 328 Pa. Super. 419, 432, 477 A.2d 515, 521 (1984).

On remand, interest will be due pursuant to subsection 106(a)(2) on the work loss benefits wrongly withheld.

In light of the foregoing, we affirm in part the judgment entered below, reverse in part, and remand this case for proceedings consistent with this opinion. Jurisdiction is not retained.

      . Act of July 19, 1974, P.L. 489, No. 176, arts. I-VII, §§ 101-701, 40 P.S. §§ 1009.101-701, repealed, Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984.

      . Section 108 of the No-fault Act provides for recovery by motor vehicle accident victims where no basic loss insurance policy applies to the claim. 40 P.S. § 1009.108(a). Uninsured victims submit their claims to the assigned claims plan. Each claim is then assigned to one of the participating insurers. Id. § 1009.108(b).

      . Appellant would have us consider whether she is entitled to receive eighteen percent (18%) interest on the sixty-five hundred dollars ($6,500) that The Travelers has already paid to her as partial settlement. However, in her motion for summary judgment, appellant alleged that the sole issue remaining before the court below was her entitlement to work loss benefits and interest thereon. See Appellant’s motion for summary judgment, at ¶¶ 10, 14. We, therefore, find appellant’s contention that she is entitled to interest upon the sums already paid waived as it was not raised below. See Pa.R.A.P. 302(a).

      . Basic loss benefits include benefits for work loss. See 40 P.S. § 1009.103.

      . Act of December 6, 1972, P.L. 1339, No. 290, 1 Pa.C.S. § 1501 et seq.

      . In Tubner v. State Farm Mutual Automobile Insurance Company, 307 Pa.Super. 207, 210, 452 A.2d 1388, 1389 (1982), we noted that the result reached in Freeze v. Donegal Mutual Insurance Company, 301 Pa.Super. 344, 447 A.2d 999 (1982) (en banc), aff'd, 504 Pa. 218, 470 A.2d 958 (1983), was “already apparent” from our supreme court’s disposition of Allstate Insurance Company v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980).

      . We, of course, make no representation herein with regard to whether the dictates of our supreme court’s decision in Chester v. Government Employees Insurance Company, 503 Pa. 292, 469 A.2d 560 (1983) (parent as statutory "survivor” must establish dependency in order to recover “survivor’s loss benefits") impact upon the entitlement of a parent/"survivor” to “work loss benefits.” That issue is not properly before us.

      . In their brief, appellees direct our attention to Judge Van der Voort’s plurality opinion in Smiley v. Ohio Casualty Insurance Company, 309 Pa.Super. 247, 455 A.2d 142 (1983), wherein work loss benefits were characterized as “in the nature of reimbursement to the estate of the deceased ..." Id. 309 Pa.Super. at 252, 455 A.2d at 145 (emphasis added). While this characterization is an often useful analytical construct, given the substantive context instantly before us, to abide by this construct would require that we act in utter contravention of our supreme court’s pronouncements in Allstate Insurance Company v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980), and its progeny. Appel-lees implicitly urge that we not recognize work loss benefits as a form of survivors’ benefits; however, as reiterated in Freeze v. Donegal Mutual Insurance Company, 504 Pa. 218, 470 A.2d 958 (1983), "In Heffner, it was decided that the right to work loss benefits is not terminated by the demise of a victim. We [our supreme court] held that ‘survivors’ of deceased victims are entitled to payment of these benefits ...” Id. 504 Pa. at 222, 470 A.2d at 960.
      Furthermore, the position espoused by appellees ignores the unambiguous language of section 108 of the No-fault Act and, in doing so, denies "survivors” their legitimate entitlements.

      . We note that our disposition of the instant appeal may appear to create a somewhat anomalous situation in that we are upholding appellant’s entitlement as a survivor to precisely the same benefits we have determined she is not entitled to as the administratrix of her son’s estate. However, appellant herein stands before us in two, very separate and discrete, capacities as both a statutory "survivor” and as representative of the distinct entity, her son’s estate. Anomalous as this situation may appear, the distinction itself is quite real and must be assiduously protected.


source: Caselaw Access Project

author: OLSZEWSKI, Judge: MONTEMURO, Judge, BROSKY, Judge,

license: Public Domain

text:
    513 A.2d 1051
    Joseph BROWN, Appellant, v. TRAVELERS INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 24, 1986.
    Filed Aug. 15, 1986.
    Joseph Grossman, Philadelphia, for appellant.

      David M. McCormick, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, WIEAND, OLSZEWSKI, DEL SOLE, MONTEMURO, BECK and TAMILIA, JJ.

       CAVANAUGH, J., did not participate in the decision in this case.

   OLSZEWSKI, Judge:

This matter comes before this en banc panel on appeal from an order of the lower court granting appellee’s motion for judgment on the pleadings. The relevant events giving rise to this plea occurred on June 10, 1983, when appellant, Joseph Brown, the owner-operator of an uninsured motor vehicle was involved in an accident with another uninsured motorist. Appellant alleges that he was totally without fault in causing the accident. Since neither motor vehicle was insured at the time of the accident, appellant submitted his claim for basic loss and uninsured motorist benefits under the assigned claims plan of the Pennsylvania No-fault Motor Vehicle Insurance Act (hereinafter the Act or the No-fault Act). Appellee, Travelers Insurance Company, was designated the assigned claims insurer, but refused to honor the claim for uninsured motorist benefits. Consequently, appellant commenced an action against appellee, but on a motion by the latter party, the lower court dismissed the complaint. The court reasoned that since appellant failed to maintain the coverage mandated by section 104(a) of the Act, he was not an “innocent victim” entitled to recover uninsured motorist benefits under Tubner v. State Farm Mutual Automobile Insurance Co., 496 Pa. 215, 436 A.2d 621 (1981). Moreover, the court refused to award these benefits to appellant inasmuch as he ultimately was liable under section 501 of the Act for all payments made on his behalf. Appellant now challenges this decision and contends that he is entitled to receive uninsured motorist benefits for the following reasons: (1) the Pennsylvania Supreme Court, in Tubner and Modesta v. Southeastern Pennsylvania Transportation Authority, 503 Pa. 437, 469 A.2d 1019 (1983), guarantees all innocent victims the right to receive uninsured motorist benefits under the assigned claims plan; (2) neither the Uninsured Motorist Act, 40 P.S. Sec. 2000, nor section 601 of the No-fault Act expressly prohibits an uninsured owner-operator from acquiring uninsured motorist benefits; and (3) an uninsured owner-operator should not be denied these benefits merely because the insurer has a right to reimbursement under section 501 of the Act. We will address these arguments seriatim.

Undoubtedly, this Court is no stranger to that piece of legislation which was enacted to cure the inadequacies of a prior system of insurance which distributed justice and compensated injuries based upon a fault finding process. While in retrospect, it now may be easy for us to condemn the system which was intended to be the panacea for the problems of the pre-No-fault era, nevertheless, it should not be forgotten that the Act embodied many noble goals. With its advent, the Act not only afforded accident victims the certainty of knowing that their losses would be covered by their own insurance, but it also suppressed the disparities of an arbitrary recovery system. In addition, the Act eliminated the need for jury trials in establishing liability, thereby avoiding the excessive costs of litigation and the lengthy delays in compensating and restoring accident victims. See Comment, Whose Fault is No-fault? The Penn sylvania No-fault Motor Vehicle Insurance Act, 41 U.Pitt. L.Rev. 27 (1979). See also Shrager & Applebaum, The Pennsylvania No-fault Motor Vehicle Insurance Act: Constitutional Analysis, 48 Temp.L.Q. 475 (1975).

Notwithstanding these carefully articulated intentions, the Act was riddled with many problems. Yet, despite these inadequacies, we are certain that the legislators never intended an uninsured owner-operator to recover uninsured motorist benefits under the assigned claims plan. Moreover, when this Court was before confronted with the same issue, it decided that an uninsured owner-operator of a motor vehicle may not recover uninsured motorist benefits from an assigned claims plan insurer. Johnson v. Travelers, 343 Pa.Super. 560, 495 A.2d 938 (1985); Aagesen v. The Travelers Companies, 346 Pa.Super. 45, 498 A.2d 1363 (1985).

Now, in defense of his position, appellant argues that the Pennsylvania Supreme Court in Tubner not only established the rights of all uninsured victims of motor vehicle accidents to receive uninsured motorist benefits under the assigned claims plan, but it also reaffirmed this position in Modesta and limited it to exclude from coverage only those uninsured owner-operators who cause accidents. We disagree with these interpretations.

In Tubner, the Court was presented with the problem of deciding whether the administratrix of the victim’s estate would be allowed to recover both basic loss and uninsured motorist benefits under the assigned claims plan. It is significant to our analysis that the victim who was injured in an uninsured automobile was himself an uninsured passenger. Although it did not become an explicit part of the Tubner Court’s decision, it is noteworthy that the victim was uninsured, not for the reason that he willfully or negligently failed to maintain his own automobile insurance, but simply because he did not own an automobile, and therefore was not obliged to maintain the compulsory no-fault coverage. See also Drusak v. Insurance Company of North America, 340 Pa.Super. 205, 489 A.2d 914 (1985) (pedestrian who was struck by a motorcycle was entitled to recover uninsured motorist benefits, as well as “basic loss” benefits, under the assigned claims plan); Prudential Property & Casualty Insurance Company v. Falligan, 335 Pa.Super. 195, 484 A.2d 88 (1984) (uninsured pedestrians who were injured after being struck by uninsured motorists were entitled to recover uninsured motorist benefits). Appellant, in the instant case, however, cannot proffer the same excuse, since he violated the express mandates of the Act by failing, whether through intent or neglect, to maintain the compulsory insurance.

Likewise, appellant’s argument that Modesta only forbids coverage to that limited class of uninsured motorists who cause accidents is without merit. The Court in Modesta was confronted with the issue of whether the transportation authority, a self-insurer, was required to provide uninsured motorist coverage to its uninsured passengers. In dicta, the Court noted that prior to its decision there were two groups of individuals who received no uninsured motorist protection: uninsured motorists who cause accidents, and uninsured occupants of self-insured vehicles. In denying recovery to the former group, but affording it to the latter, the Court stated:

It is reasonable to deny uninsured motorist coverage to the first group, since they have not only chosen not to comply with the mandatory insurance law, but have also caused the accidents which resulted in their injuries, however, it makes no sense in terms of any policy of deterrence, retribution or liberal construction of a remedial statute to deny uninsured motorist coverage to uninsured individuals who have not caused the accidents which resulted in their injuries, simply because they were occupants of self-insured vehicles.

Modesta v. Southeastern Transportation Authority, 503 Pa. 437, 443, 469 A.2d 1019, 1023 (1983).

On the basis of these comments, it is illogical for us now to conclude that the Court meant to deny coverage only to that group of motorists who cause accidents and award benefits to everyone else. As part of its analysis, the Court noted that not only are these motorists at fault in causing the accident, but they also have failed to maintain the compulsory insurance. It would be inconsistent for us to afford appellant recovery merely because he did not cause the accident when the no-fault system has eliminated the need to determine fault in awarding benefits. While appellant’s innocence in causing the accident is commendable, it is more significant that appellant failed to maintain that insurance which was designed to award him benefits in the event that he would be involved in an accident with another uninsured motorist. This observation, we believe, is reinforced by the legislature’s inclusion in the Act of section 601, which sanctions those who fail to comply with the mandatory provisions of section 104, and section 301, which places ultimate liability upon the uninsured owner.

Moreover, there is a recognizable difference between the type of injuries compensated for under the No-fault Act and the Uninsured Motorist Act. Our Supreme Court in Tucci v. State Farm Insurance Co., 503 Pa. 447, 469 A.2d 1025 (1983), defined basic loss or no-fault benefits to include payment for economic loss or “special damages,” i.e., medical expenses and loss of earnings, whereas uninsured motorist benefits were composed of awards attributable to non-economic loss or “general damages,” i.e., pain and suffering. Id., 503 Pa. at 450, 469 A.2d at 1026. It is noteworthy that under the No-fault Act, even an uninsured owner-operator who had been injured in a motor vehicle accident was entitled to receive full and immediate professional treatment. Since appellant in the instant case has already been compensated for his economic losses in the form of basic loss benefits, we would not offend the policy provisions of the No-fault Act by denying him the right to recover uninsured motorist benefits.

Compensating an injured victim of a vehicular accident is a paramount purpose of the legislatively adopted no-fault scheme. Thus, an injured victim, even if he or she is an uninsured owner, can receive “prompt and comprehensive professional treatment” and thus be rehabilitated and returned as a productive member of society as quickly as possible. See Section 102(a)(9) of the No-fault Act, 40 P.S. Sec. 1009.102(a)(9).

Harleysville Mutual Insurance Co. v. Schuck, 302 Pa.Super. 534, 538-539, 449 A.2d 45, 47 (1982).

Nor do we find it persuasive, as appellant argues, that neither section 601 of the No-fault Act nor the Uninsured Motorist Act, 40 P.S. Sec. 2000 explicitly prohibits an uninsured owner-operator from recovering uninsured motorist benefits. Whereas section 601 expressly outlines the criminal penalties to be imposed upon those who violate the compulsory provisions of the Act, we would not expect this prohibition to be included in this section. In response to the second half of appellant’s argument, it is noteworthy that “our supreme court has reiterated on several occasions that the Uninsured Motorist Statute is 'designed to give monetary protection to that ever changing and tragically large group of persons who while lawfully using the highways themselves suffer grave injuries through the negligent use of those highways by others.’ ” (citations omitted) Adel-man v. State Farm Mutual Automobile Insurance Company, 255 Pa.Super. 116, 127, 386 A.2d 535, 540 (1978). This act was intended to provide the insured who was injured by an uninsured motorist, with the ability to recover those damages which he would have received had the uninsured motorist maintained liability insurance. Id., 255 Pa. Superior Ct. at 128, 386 A.2d at 541. (emphasis added). As a result, the act by itself did not establish any rights in an uninsured, motorist; it was only with the advent of the No-fault Act, that the uninsured victim of a motor vehicle accident could recover these benefits. Consequently, we cannot find that the Uninsured Motorist Act, standing by itself, provides the coverage demanded by appellant.

In his final attempt to persuade us in molding our decision, appellant urges us to disregard the language of section 501 from our analysis. In interpreting this provision, our Court in Harleysville Mutual Insurance Company v. Schuck, 302 Pa.Super. 534, 449 A.2d 45 (1982), found that under section 501 of the Act, an insurer who had paid “basic loss benefits” to the uninsured owner-occupant of a motor vehicle may recover those benefits paid out from the owner of the vehicle. Thus, the Court determined that the ultimate loss was to be borne by the uninsured owner and not by the assigned claims insurer. The following year, this Court again decided that the assigned claims insurer was not obligated to pay benefits to the estate of a deceased uninsured owner-operator, since the insurer immediately would have a claim for recoupment for all such benefits paid. The following remarks were offered by the Court in support of its decision:

In the situation of a deceased victim, the justification of speeding treatment and rehabilitation simply does not apply. We can perceive no other legislative intent in the Act to support a rule requiring payment to an uninsured deceased owner’s estate in such a case, with undeserved enrichment for the estate and unrecoverable losses by the assigned risk insurer being the probable results in such circumstances.

Ostronic v. Insurance Company of North America, 314 Pa.Super. 146, 157, 460 A.2d 808, 814 (1983).

We too believe that in the instant case, there is no just reason for us to provide uninsured motorist benefits to a motorist who has violated the compulsory insurance law. Inasmuch as appellant already was compensated for his economic losses, we are unsympathetic to his present pleas. If we were to award these benefits in this instance, we would not only insult those motorists who have paid the high insurance premiums protecting against such catastrophes, but we would also impose an undue burden upon insurers to recover these benefits without any difficulties, i.e., insolvency of the owner-operator. Thus, in denying the rights of an uninsured owner-operator to receive uninsured motorist benefits under the assigned claims plan, we note the profound words of our late President John F. Kennedy when he said, “Our privileges can be no greater than our obligations. The protection of our rights can endure no longer than the performance of our responsibilities.”

Order affirmed.

MONTEMURO, J., files concurring statement.

BROSKY, J., files dissenting opinion.

MONTEMURO, Judge,

concurring:

I heartily join in the well-reasoned Opinion by Judge Olszewski. I wish to add only that my deliberations and resolve have been significantly influenced by the thoughtful Opinion of our esteemed colleague Judge James E. Rowley in Johnson v. Travelers Insurance Co., 343 Pa.Super. 560, 495 A.2d 938 (1985).

BROSKY, Judge,

dissenting.

This case is before us on appeal from judgment entered in favor of the defendant, Travelers Insurance Company. The sole issue for our determination is whether appellant, the owner/operator of an uninsured motor vehicle, allegedly innocent of causing an accident, is entitled to receive uninsured motorist benefits from the insurance company designated by the Pennsylvania Assigned Claims Plan to process appellant’s claim. Although I agree to a large extent with the majority Opinion, I believe dicta in Supreme Court cases should lead us to reach a different result.

In Tubner v. State Farm Mutual Auto Ins. Co., 496 Pa. 215, 436 A.2d 621 (1981), our Supreme Court decided the issue of “whether a company designated to provide insurance coverage pursuant to the assigned claims plan of the No-Fault Act is required to pay not only ‘basic loss benefits,’ but also uninsured motorist benefits.” In that case, a passenger in an uninsured automobile was killed in an accident, and the administratrix of his estate brought an action against the appellant insurance company to recover uninsured motorist benefits. Appellant had been designated as the participating insurer under the assigned claims provisions of the No-Fault Act, and had paid basic loss benefits. The company refused, however, to pay uninsured motorist benefits. The Supreme Court ruled that the ad-ministratrix was entitled to the benefits.

The court found that section 108(b) of the Act required assigned insurers to compensate motor vehicle accident victims who were not otherwise covered by insurance, just as if a policy of basic loss insurance had been issued. The court stated: “Because assigned insurers are obligated precisely as if they had issued basic loss insurance policies, and because every policy of basic loss insurance issued in Pennsylvania must include uninsured motorist coverage, the right to uninsured motorist benefits under the assigned claims plan follows a fortiori from a straightforward reading of the statute and the regulation lawfully promulgated thereunder.” 496 Pa. at 219, 436 A.2d at 623 (emphasis in original). The court reasoned that adopting a contrary view would have the effect of affording recovery of general damages to all motor vehicle victims injured by uninsured motorists except those covered by the assigned claims plan, with harsh results. The court added that because a claimant under the assigned claims plan is covered as if he had obtained a policy of basic loss insurance, his right to uninsured motorist benefits cannot be distinguished from that of holders of valid insurance policies.

In Modesta v. SEPTA, 503 Pa. 437, 469 A.2d 1019 (1983), a bus passenger, injured when the bus in which she was riding was struck from behind by an uninsured motorist, sought uninsured motorist benefits from the transportation authority. The Supreme Court held on appeal that the transportation authority, as a self-insurer, was required to provide uninsured motorist coverage. The court stated:

[UJntil today there were two groups of individuals who received no uninsured motorist protection: uninsured motorists who caused accidents and uninsured occupants of self-insured vehicles. It is reasonable to deny uninsured motorist coverage to the first group, since they have not only chosen not to comply with the mandatory insurance law, but have also caused the accidents which resulted in their injuries; however, it makes no sense in terms of any policy of deterrence, retribution or liberal construction of a remedial statute, to deny uninsured motorist coverage to uninsured individuals who have not caused the accidents which resulted in their injuries, simply because they were occupants of self-insured vehicles. 503 Pa. at 443, 469 A.2d at 1022-23 (footnotes omitted; emphasis added).

The court went on to hold that the uninsured occupant of the self-insured vehicle was entitled to uninsured motorist coverage. Although the quoted language does not constitute the holding of Modesta, it seems to indicate the Supreme Court’s feeling that only uninsured motorists who are actually responsible for accidents are to be denied uninsured motorist coverage.

Accepting the result that an innocent but uninsured owner/ operator may recover uninsured motorist benefits, there are two ways to proceed. We might find that a party claiming uninsured motorist benefits should be entitled to receive such benefits from the assigned claims carrier, who could later recover the amounts paid if the claimant was found to have caused the accident. This approach would be supported by a broad interpretation of Section (d) of the Uninsured Motorist Act. That section provides: “In the event of payment to any person under the coverage required by this section, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made____” (Emphasis added.)

Arguably, this section would give the insurance company the right to recover from the claimant any uninsured motorist benefits paid to the claimant if the claimant was responsible for causing the accident. Such an approach would be analogous to that followed by our court in Harleysville Mutual Insurance Co. v. Schuck, 302 Pa.Super. 534, 449 A.2d 45 (1982), in which a panel of our court approved the payment of No-Fault basic loss benefits to an owner/operator of an uninsured vehicle, and held that the insurance company was entitled to recover those benefits. In Schuck, our court noted that compensating an injured victim of a vehicular accident was one of the main purposes of the No-Fault Act, “[t]hus an injured victim, even if he or she is an uninsured owner, can receive ‘prompt and comprehensive professional treatment’ and thus be rehabilitated and returned as a productive member of society as quickly as possible.” 302 Pa.Super. at 538, 449 A.2d at 47.

The other, and I believe better, approach would be to not require that uninsured motorist benefits be paid until such time as a determination has been made that the claimant was not at fault in causing the accident. The considerations of Schuck do not apply in the context of uninsured motorist benefits, since basic loss benefits have, in at least the vast majority of cases, already been paid, frequently directly to the provider of medical services or supplies, and since the uninsured motorist benefits will therefore in most cases be compensation for non-economic detriment, rather than being required for the claimant’s rehabilitation. Payment of uninsured motorist benefits can, without causing undue hardship, await a determination of fault. Uninsured motorist benefits paid to a claimant would very likely be put to use by the claimant, and the insurance company would not be certain to obtain the money that it had paid out. The more sensible of the two approaches would therefore appear to be to require the insurance company to pay the uninsured motorist benefits only after a determination had been made that the claimant would not be required to return some or all of such payments to the insurance company.

I would find that the trial court erred in entering judgment in favor of appellee insurance company. Once it was determined that the claimant, the party entitled to basic loss benefits under the assigned claim provisions of No-Fault, was not at fault in causing the accident, the claimant would be entitled to receive uninsured motorist benefits from the obligor that had paid the basic loss benefits as if the claimant had been insured by a policy of basic loss insurance with uninsured motorist coverage. I would reverse the trial court and remand for further proceedings.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. Secs. 1009.101-701, repealed Act of February 12, 1984, P.L. 26, No. 11, Sec. 8(a), effective October 1, 1984. (Hereinafter, the prefix “1009” will be eliminated when citing to section numbers in the textual material, e.g., section 101, not section 1009.101).

      . Appellee, however, did pay the claims submitted by appellant for basic loss benefits.

      . Section 104(a) in pertinent part provides:
      Every owner of a motor vehicle which is registered or which is operated in this Commonwealth by the owner or with his permission, shall continuously provide security covering such motor vehicle while such vehicle is either present or registered in the Commonwealth. Security shall be provided for the payment of basic loss benefits ...

      . For instance, several years ago, one of our brethren made the following comments about the newly enacted Pennsylvania No-fault Motor Vehicle Insurance Act:
      Unfortunately for ... the plaintiff ... his case is an example of the causes of ‘growing complaints’ and ‘widespread dissatisfaction’ with the administration of the Act____ The plaintiff finds himself between the proverbial rock and a hard place. He is caught in the middle of a dispute between two insurance companies litigating the question of which one is obliged to pay the plaintiff those benefits which he is entitled to receive under the Act____

        Blocker v. Motorists Mut. Ins. Co., 37 Beaver Co. L.J. 87, 87 (C.P.1978) (Judge Rowley).

      . It is noteworthy that under the No-fault Act, a victim’s legal right to recover in tort and hence the amount of his recovery is dependent upon the status of the parties (and in part on the nature of the vehicle) rather than on the nature of the conduct of the parties. Shrager & Applebaum, The Pennsylvania No-fault Motor Vehicle Insurance Act: Constitutional Analysis, 48 Temp.L.Q. 475, 485 (1975).

      . Section 301(a)(1) of the Act, in pertinent part, provides:
      An owner of a motor vehicle involved in an accident remains liable if, at the time of the accident, the vehicle was not a secured vehicle.

      . In distinguishing the type of recoveries available under the two Acts, our Supreme Court quoted with approval the perceptive comments of Judge Teitelbaum in Carnevale v. Sentry Insurance, A Mutual Company, 469 F.Supp. 681 (W.D.Pa.1979):
      The purpose of Pennsylvania’s No-fault law is to create a first party contractual right of action against one’s own insurer for economic loss and to preserve the common law cause of action for non-economic loss where certain threshold conditions have been met. Uninsured motorist coverage is designed to provide protection against being left with a worthless cause of action against the uninsured driver for non-economic loss. Absent the set-off provision, plaintiff is reimbursed for his economic losses under the no-fault coverage and reimbursed for his non-economic losses up to the policy limit by the uninsured motorist coverage. In this manner, the legislatively intended distinction between economic and non-economic losses is preserved. Public policy is also furthered in that premiums paid for uninsured motorist coverage will provide protection against non-economic losses occasioned by an uninsured motorist’s actions.

      . Section 601. OPERATION OF A VEHICLE WITHOUT SECURITY.
      Any owner of a passenger vehicle, for which the existence of security for basic loss benefits and tort liability insurance is a requirement for its legal operation upon the public highways of this State, under either section 104 or 110 of this act or sections 418, 419 or 420, act of April 29, 1959 (P.L. 58, No. 32), known as The Vehicle Code, who operates such motor vehicle or permits it to be operated upon a public highway in this State without having in full force and effect security complying with the terms of section 104 is guilty of a misdemeanor. And any other person who operates such a motor vehicle upon a public highway in this Commonwealth with the knowledge that the owner does not have such security in full force and effect is guilty of a misdemeanor. And each person convicted of a misdemeanor under the terms of this section may be fined not less than one hundred dollars ($100) or more than five hundred dollars ($500) or may be imprisoned for not more than six months or both.

      . The new comprehensive system incorporated in the no-fault scheme should be viewed as complementing the earlier policy incorporated in the uninsured motorist act of requiring all motorists to carry liability protection against personal injury losses caused by uninsured motorists. Tucci v. State Farm Ins. Co., 503 Pa. 447, 469 A.2d 1025 (1983).

      . Section 501 of the Act in pertinent part provides:
      The obligor obligated to pay basic loss benefits ... to a person occupying a motor vehicle, the owner of which is uninsured pursuant to this act ... shall be entitled to recover all the benefits paid

      . These following factors were listed in support of the court’s decision denying benefits to the estate: (1) the practical ability of the insurer to obtain full reimbursement from the estate of the uninsured driver; (2) the insurer’s chances of recovery would be adversely affected by the preference accorded the claim under the Probate, Estate and Fiduciaries Code; (3) motorists would be discouraged from maintaining automobile insurance coverage; (4) the estates of irresponsible vehicle owners would profit through the decedent’s wrongdoing; (5) responsible drivers would suffer higher insurance premiums. Ostronic v. Insurance Co. of North America, 314 Pa.Super. 146, 156, 460 A.2d 808, 813 (1983).

      . Section 108 of the Pennsylvania No-fault Motor Vehicle Insurance Act, 40 P.S. § 1009.108.

      . Section 108(b) provides:
      (b) Assigned claims plan.—
      (1) Obligors other than self insurers and governments providing basic loss insurance in this Commonwealth shall organize and maintain, subject to approval and regulation by the commissioner, as [sic] assigned claims bureau and an assigned claims plan and adopt rules for their operation and for assessment of costs on a fair and equitable basis consistent with this act. If such bureau and plan are not organized and maintained in a manner considered by the commissioner to be consistent with this act, he shall organize and maintain an assigned claims bureau and an assigned claims plan.
      Each obligor insurer providing basic loss insurance in the Commonwealth shall participate in the assigned claims bureau and the assigned claims plan. Costs incurred shall be allocated fairly and equitably among the obligors.
      (2) The assigned claims bureau shall promptly:
      (A) assign each claim for no-fault benefits to an assignee who shall be a participating insurer; and
      (B) notify the claimant of the identity and address of such assign-ee.
      Claims shall be assigned so as to minimize inconvenience to claimants. The assignee thereafter has rights and obligations as if he had issued a policy of basic loss insurance complying with this act applicable to the injury or, in a case involving the financial inability of a restoration obligor to perform its obligations, as if the assignee had written the applicable basic restoration insurance, undertaken the self-insurance, or lawfully obligated itself to pay basic loss benefits.

      . It should be noted that basic loss benefits may include compensation for work loss and replacement services loss as well as for medical expenses. It is not clear that the rationale of Schuck applies to such other basic loss benefits, nevertheless, the opinion did not differentiate among these types of basic loss benefits.


author: WATKINS, Judge:

text:
    513 A.2d 1059
    Barbara L. NUCCI v. Richard C. NUCCI, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1985.
    Filed Aug. 12, 1986.

      Wiley P. Parker, Lebanon, for appellant.
    Lawrence J. Neary, Harrisburg, for appellee.
    Before WIEAND, OLSZEWSKI and WATKINS, JJ.
   WATKINS, Judge:

This is an appeal from an Order entered March 25, 1985, in the Court of Common Pleas of Lebanon County in favor of appellee-wife and against appellant-husband in the amount of $37,850.00 together with interest. The trial court further directed appellant to enter security in the amount of $10,000.00 to insure future payments of the alimony order of $300.00 per month.

This was an action to enforce, register and adopt a foreign decree under 23 P.S. § 506. Appellee-wife sought alimony arrearages pursuant to a stipulation incorporated into a divorce decree entered by the Superior Court of the State of New Hampshire, County of Hillsborough. Appellant-husband filed an answer and new matter and appellee-wife filed a reply. A hearing was held on March 22, 1985 and on March 28, 1985, the trial court entered an Order in favor of appellee-wife and against appellant-husband in the amount of thirty-seven thousand eight hundred fifty ($37,-850.00) dollars together with interest and directed appellant to enter security in the amount of ten thousand ($10,000.00) dollars to insure future payments of the alimony order of three hundred ($300.00) dollars per month. On April 8, 1985, appellant filed a Rule to Show Cause why the New Hampshire decree should not be terminated, or in the alternative, modified. On April 17, 1985, appellant filed a Notice of Appeal from the Order of March 25, 1985. On April 29, 1985, appellee filed an Answer to appellant’s Petition to Terminate or Modify the alimony decree. On May 31, 1985, the trial court filed a Memorandum Opinion in support of the Order of March 25, 1985. In its opinion the trial court noted that the filing of the appeal precluded consideration of the petition seeking termination or modification of the New Hampshire alimony decree.

Appellant presents the following questions for our consideration:

1. Did the court below err in determining that the equitable doctrine of laches did not bar appellee-wife’s claim for alimony?

2. Did the court below err in failing to determine that appellee-wife’s claim for past due alimony or some portion of it is barred by reason of the statute of limitations?

3. Did the court below err in requiring appellant-husband to post ten thousand ($10,000.00) dollars security to insure future payments of the order of alimony?

In his first issue appellant claims that it is black letter law that laches will be applied to bar appellee’s claim if it is demonstrated that there has been a lack of due diligence on the part of appellee, the passage of an unreasonable period of time and that by reason of such lack of diligence and unreasonable delay that enforcement would be unjust.

The trial court noted that under both Pennsylvania and New Hampshire law there is no yardstick to determine the number of months or years that spring forth the defense of laches. The trial court refused to apply this equitable defense because it found appellant had failed to do equity with clean hands since he, too, had slept on his rights, failing to seek modification or termination of the order despite the fact that he was familiar with the modification procedure and had used it once before.

Upon review of the record we conclude that the trial court did not err by refusing to apply the laches defense. Accordingly, we find appellant’s claim to be without merit.

In his second issue appellant contends that the trial court erred in failing to determine that appellee-wife’s claim for past due alimony or some portion of it is barred by reason of the statute of limitations.

The trial court relied on a New Hampshire statute, Section 458:19 of the New Hampshire Domestic Relations Code, which states that upon a decree of divorce a court may order alimony to be paid for not more than three years or three years after the youngest child attains majority. The trial court found that at the time of the divorce appellee had custody of both minor children, that up to the time of the hearing she had custody and was providing support for the minor child, Mark; that Mark was 17, when on September 19, 1983, appellee made a demand for alimony arrearages and that therefore appellant’s statute of limitations argument could not prevail in the New Hampshire court or in this jurisdiction.

In the recent case of Cohen v. Cohen, 352 Pa.Super. 453, 508 A.2d 561 (1986), a case analogous to the one sub judice, appellant-wife, pursuant to Section 506 of the Divorce Code, 23 P.S. § 506, petitioned for registration, adoption and enforcement of a foreign alimony decree which provided for permanent alimony. This Court held that under 42 Pa.C.S.A. § 5521, as applied pursuant to the Uniform Statute of Limitation on Foreign claims Act, 42 Pa.C.S.A. § 5521, appellant-wife had six years within which to file an action for each unpaid installment of alimony.

Applying Cohen, supra, to the case sub judice we find that appellee-wife is entitled only to those alimony installments due within six years of the filing of the petition on April 3, 1984.

Finally, appellant contends that the court below erred in requiring appellant-husband to post $10,000.00 security to insure future payments of the order of alimony. The trial court adequately disposed of this issue when it stated:

We find this case particularly appropriate for the imposition of a security requirement. This familial controver-sey has embraced the States of New Hampshire, Massachusetts, Pennsylvania and Texas. For at least a one year period the Respondent’s whereabouts were unknown. The Petitioner must travel from Texas to Pennsylvania to enforce her rights. We cannot assure the Petitioner that the Respondent will remain in Pennsylvania in order for us to police the Respondent’s obligation to pay alimony in the future. We can require that he leave financial security with us in the event we encounter future difficulty.

Considering the foregoing, we will reverse that portion of the trial court’s order entering judgment in favor of the appellee-wife for the amount of arrearages due from November, 1974 to March, 1985, and remand to the trial court for the entry of an order consistent with this opinion. The order is affirmed in all other respects.

Affirmed in part; reversed in part; and remanded. Jurisdiction is relinquished.


author: BECK, Judge:

text:
    513 A.2d 1061
    In re ADOPTION OF B.E.W.G. and S-L.W.G. Appeal of Howard L. WEST and Kay West.
    Superior Court of Pennsylvania.
    Argued May 30, 1986.
    Filed Aug. 12, 1986.

      Donald B. Hoyt, York, for appellants.
    Before WIEAND, BECK and JOHNSON, JJ.
   BECK, Judge:

This is an appeal from an order of the York County Common Pleas Court denying without a hearing a petition to unseal and inspect adoption records and to vacate an adoption decree. The appellant-petitioners, Howard West and Kay West (the Wests), are the natural maternal grandparents of the adoptees.

The basis of the trial court’s order was that the Wests lacked standing to obtain the requested relief. We find the Wests have standing and remand for a hearing as to whether the adoption records should be unsealed and inspected. We also find that the Wests have standing as to whether the adoption decree should be vacated. Since the court must determine at the initial hearing whether to unseal the adoption records, we conclude that a decision as to whether the court should hold a hearing on the petition to vacate the adoption decree is premature; and therefore we do not decide that question. The facts of this case are complex. B.E.W.G. is now three years old and S-L.W.G. is now seven years old. They are the natural children of P.J.G. (Father) and L.G. Father stabbed and killed his wife L.G. on December 4, 1983, in Ithaca, Tompkins County, New York. At that time, S-L.W.G. was visiting her paternal grandfather, in the New York City area; B.E.W.G. was present at the marital residence in a trailer park in Brook-tondale, New York. After the stabbing, Father was arrested and incarcerated in the Tompkins County jail. B.E.W.G. was taken into physical custody by a neighbor at the trailer park. On December 6, 1983, the paternal grandfather apparently obtained physical custody of B.E.W.G. from the neighbor and brought him to his residence where S-L.W.G. was staying.

On December 21, 1983, the Wests, after several unsuccessful efforts at locating the children, filed a petition for custody in the Family Court, State of New York, County of Tompkins. On March 26, 1984, Judge William C. Barrett directed that custody of the children be placed with Father who had been released on bail; granted the Wests visitation privileges; and further directed “that this order will remain in effect until the disposition or resolution of the criminal charges currently pending against [Father] in Tompkins County Court, or until further order of this Court.”

Approximately two months later on May 15, 1984, the Tompkins County Family Court entered an order (May 15 order) which again granted custody of the children to Father and extended the visitation privileges of the Wests. Prior to the May 15 order and pursuant to the prior agreement of the parties, the Wests delivered on May 10, 1984 the two children to Father in the presence of his attorneys in Ithaca, New York. From the time they turned over the children on May 10, 1984 until they discovered their whereabouts in York County sometime in September 1985, the Wests lost track of and had no contact with the children.

It appears that on or about May 13, 1984, Father removed the children from New York. He took them to the Tressler Lutheran Service Associates (Tressler), York County, Pennsylvania, where he reportedly relinquished the children to the Tressler agency. The record contains an affidavit by a Millie Bull of York County, who states that between May 13, 1984, and July 8, 1984, she taught B.E.W.G. and S-L. W.G. at the Christ Lutheran Church Bible School and that, at the time, the children were in a foster home in Shrews-bury with a couple named in the affidavit. The affidavit continues: “After that they were adopted by another couple.”

Not knowing that the children had been removed from New York State, Kay West drove to Brooklyn, New York on May 21, 1984 to pick them up for a week’s visitation pursuant to the May 15 order. The children were missing, and on the following day Father communicated through his attorney that he would not reveal their whereabouts. On May 22, the jury returned a guilty verdict in Father’s criminal trial. Judgment of sentence was entered on June 23, 1984 on conviction of a reduced charge of first degree manslaughter, upon Father’s affirmative defense of extreme emotional disturbance. Father is currently serving a sentence of 8Vs to 25 years in the New York state prison system.

On May 24, 1984, the Wests, still unaware of the whereabouts of the children, filed a new petition for custody in the Tompkins County, New York Family Court. In response to that petition, on May 29, 1984, (May 29 order) the Tompkins County Court entered three orders. The first ordered Father to show cause why custody should not be granted to the Wests. The second order directed that temporary custody of S-L.W.G. and B.E.W.G. be placed with the Wests. The third order provided for service of the orders on Father.

In response to the Rule to Show Cause, Father appeared at a fact-finding hearing on June 11. He refused to divulge any information concerning the whereabouts of the children; he asserted his fifth amendment rights repeatedly. On July 5, 1984, the Tompkins County Family Court issued a continuation of its prior order of May 29, granting temporary custody to the Wests.

As noted above from the affidavit of Millie Bull, on July 8, 1984, the children were in foster care and she was instructing them. Therefore, we conclude that when temporary custody was initially awarded to the Wests on May 29, 1984, the adoption decree in York County was not final.

The Tompkins County Family Court issued its formal decision and order on the Wests’ May 24 petition on November 9, 1984. The decision and order directed that legal custody of the children be placed with the petitioners, Howard L. West and Kay West. Thus, the Wests have had legal custody of B.E.W.G. and S-L.W.G. from May 29, 1984; albeit for the period from May 29, to November 9, 1984 their legal custody was described as temporary.

On April 19, 1985, the district attorney of Tompkins County petitioned the court for an order unsealing the adoption records of B.E.W.G. and S-L.W.G. and to permit him to inspect the adoption records. On April 30, 1985, the Wests filed a similar petition with the Court of the County of Richmond, New York. On June 17, 1985, the Surrogate’s Court of the State of New York, County of Richmond, ordered that the adoption records of the children be sent to the district attorney and the Wests’ attorney. The court found that the petitioners had demonstrated the requisite “good cause” to open the adoption records. A review of the Richmond County records reveals that the adoption proceeding in the county was abandoned in April of 1984. The record is incomplete as to what if any adoption proceedings took place in Tompkins County.

On September 6, 1985, the Wests traveled to York County Pennsylvania. They learned that the children had been at Tressler Lutheran Services Associates from sometime in May to sometime in July 1984 and were subsequently adopted by unknown parties. The Wests then filed with the Orphan’s Court Division of the York County Common Pleas Court a petition in two counts:

(1) to unseal and inspect the adoption records of [B.E. W.G.] and [S-L.W.G.] to determine:
(a) if the adoption proceedings were commenced and completed during the period that the children were under the jurisdiction of the Family Court of the State of New York, Tompkins County;
(b) if the adoption proceedings commenced and completed during the period that custody was awarded to Petitioners, Howard L. and Kay West;
(c) if there were filings or offering of any false instrument by [Father];
(d) if the adoption proceedings were valid; and
(2) to vacate the decree of adoption.

This petition was denied by President Judge Robert I. Shadle, by an order of January 14, 1986. In his statement of reasons issued pursuant to Pa.R.A.P. 1925(a), President Judge Shadle stated that he based his order on a finding that the Wests were without legal standing to obtain the requested relief. For authority he cited Faust v. Messinger, 345 Pa.Super. 155, 497 A.2d 1351 (1985).

The Wests filed this timely appeal. On appeal, the Wests allege that: (1) as maternal grandparents with legal custody they have standing to attack the adoption; (2) the Pennsylvania Adoption Act was violated in the instant adoption proceedings; (3) the Interstate Compact on the Placement of Children Act was violated in the adoption proceedings; (4) the law of the State of New York should apply, pursuant to the Uniform Child Custody Jurisdiction Act; and (5) that the adoption proceedings should be opened to allow for a complete review of the instant case.

The threshold question before us is whether the Wests have standing to petition to unseal and inspect the adoption records and to vacate the adoption decree. We conclude that the Wests do have standing, and therefore we remand for a hearing on whether the adoption records should be unsealed and inspected.

First, we examine the Wests’ standing to unseal and inspect the adoption records. The Wests have had legal custody of B.E.W.G. and S-L.W.G. continuously since they were awarded temporary custody by a New York court on May 29, 1984. Temporary custody relieved the father of legal possession and control over the children and placed the right to possession and control over the children in the Wests. It differed from full legal custody only in so far as it allowed the court the election of reconsidering its custody decision without either party petitioning and showing changed circumstances.

In finding that the Wests did not have standing, the lower court relied on Faust v. Messinger, 345 Pa.Super. 155, 497 A.2d 1351 (1985). Faust is inapposite to the case sub judice. In Faust, a grandmother appealed from an order denying her visitation rights with her grandson following his adoption. The grandmother did not havé legal custody, unlike appellants in the instant case. Legal custody gave the Wests the right to possession and control of the children as well as the duty to protect them and act for their welfare. Clark, Jr. The Law of Domestic Relations, Section 17.1 et seq. The “core concept” in standing questions is whether the person seeking relief is adversely affected or “aggrieved” in any way by the matter which he seeks to challenge through the judicial process. To have standing, the adversely affected party must allege an immediate, direct and substantial injury. 1000 Grandview Assn. v. Mt. Washington Assn., 290 Pa.Super. 365, 367, 434 A.2d 796, 797 (1981). A legal custodian of a child who alleges that he or she has been illegally deprived of possession of the child certainly alleges an immediate, direct and substantial injury.

The New York Court clothed the Wests in the role of protector of the children. This status gave them standing to petition the court to unseal and inspect the adoption records and to petition to vacate the adoption decree.

Upon remand the first task of the hearing court will be to determine whether the Wests have shown “cause” to unseal and inspect the adoption records. The Adoption Act of 1980 provides that records relating to adoption shall be withheld from inspection “except on an order of court granted upon cause shown.” 23 Pa.C.S.A. § 2905(a) (as amended).

In deciding whether cause exists, the court must determine whether the Wests have justifiable reason to obtain the information relating to the adoption proceedings. The court must consider whether the adoption proceedings represented a fraud on the courts; whether the father, who no longer had legal custody, had the authority to consent to the adoption; whether the Wests, who had legal custody at the time of the adoption, were entitled to notice; and whether the adoption proceeding violated relevant state law, particularly the Pennsylvania Adoption Act, 23 Pa.C. S.A. § 2101 et seq., and the Interstate Compact on the Placement of Children Act, 62 P.S. § 761.

It may be helpful to note that the New York statute on the confidentiality of adoption records is similar to the act in Pennsylvania except that the New York statute requires “good cause” while the Pennsylvania statute requires only “cause” to unseal and inspect adoption records. The Richmond County Surrogate’s Court considered the question of cause to open records when the Wests petitioned to inspect the Richmond County adoption records relating to B.E.W.G. and S-L.W.G. in April, 1985. The court order stated in part:

The relevant statute for the proceedings herein is Section 114 of the Domestic Relations Law which provides, in part:
“No person shall be allowed access to such sealed records and order and any index thereof except upon an order of a judge or surrogate of the court in which the order was made or of a justice of the supreme court. No order for disclosure or access and inspection shall be granted exept on good cause shown and on due notice to the adoptive parents and to such additional persons as the court may direct.”

Accordingly, petitioners must demonstrate “good cause” so as to warrant the disclosure and inspection of the adoption records.

The courts have given us little guidance, however, as to the existence or not of “good cause.” As the Court of Appeals most recently stated:

“By its very nature, good cause admits of no universal, black-letter definition. Whether it exists, and the extent of disclosure that is appropriate must remain for the courts to decide on the facts of each case.” (Matter of Linda F.M., 52 N.Y.2d 236, 240 [437 N.Y.S.2d 283, 418 N.E.2d 1302]).
In the instant case, we have a natural father, convicted of murdering his wife, who has surreptitiously hidden his two young children and now refuses to divulge their whereabouts. Petitioners seek to inspect the records of the adoption proceedings, hoping to find some clue as to the whereabouts of the missing children.
The Court determines that Petitioners have demonstrated the requisite “good cause” so as to warrant the inspection and disclosure of the adoption records. Accordingly, their application is hereby granted.

In light of our conclusion that the Pennsylvania courts are bound by the decision of the New York order granting the grandparents custody, we vacate the Order of the court and remand the case for a hearing consistent with this opinion. Jurisdiction is relinquished.

      . The New York Court retained on-going jurisdiction to decide the question of custody from the time the grandparents first filed a petition for custody on March 26, 1984. Under the Uniform Child Custody Jurisdiction Act, 42 Pa.C.S.A. §§ 5341-5366, the Pennsylvania courts are bound to recognize New York’s jurisdiction including its determination on May 29, 1984 that temporary custody be with the grandparents. 42 Pa.C.S.A. §§ 5349, 5354.


author: WATKINS, Senior Judge:

text:
    513 A.2d 1066
    COMMONWEALTH of Pennsylvania ex rel. J. Christian NESS, District Attorney of York County Pennsylvania v. KEYSTONE SIGN, CO., INC. t/a/Triangle Tavern, Steven H. Schiding, Dionysios Tomboris, William Benson Fry and Marie L. Fry, His Wife. Appeal of KEYSTONE SIGN CO., INC. t.a. Triangle Tavern and Dionysios Tomboris.
    Superior Court of Pennsylvania.
    Submitted March 3, 1986.
    Filed Aug. 18, 1986.

      William C. Kolias, Lemoyne, for appellant.
    J. Christian Ness, Assistant District Attorney, York, for Commonwealth, appellee.
    Before WICKERSHAM, WATKINS and CERCONE, JJ.
   WATKINS, Senior Judge:

This case comes to us on appeal from the Court of Common Pleas of York County and involves defendant-appellant’s appeal from an order of the court below which granted the district attorney’s request for an injunction pursuant to Section 6-611 of the Liquor Code, 47 Pa.C.S.A. 6-611. The court below ordered the appellant’s licensed liquor establishment closed for a period of one year because it found the establishment to be a nuisance.

The York County District Attorney brought an equity action against defendant pursuant to Section 6-611 of the Liquor Code. Part (a) of that section provides as follows:

“Any room, house, building, boat, vehicle, structure or place, except a private home, where liquor, alcohol, or malt or brewed beverages are manufactured, possessed, sold, transported, offered for sale, bartered or furnished, or stored in bond, or stored for hire, in violations of this act, and all such liquids, beverages and property kept or used in maintaining the same, are hereby declared to be common nuisances, and any person who maintains such a common nuisance shall be guilty of a misdemeanor and, upon conviction thereof, shall be subject to the same penalties provided in section four hundred ninety four of this act.”

Defendant argues that said section does not apply to licensed establishments. He contends that the words “in violation of this Act” exclude licensed premises from inclusion in those establishments to which this Act applies citing several rules of statutory construction and the legislative history of the section which he maintains was meant to outlaw speakeasies. The Commonwealth cites Section 1-104(a) of the Liquor Code which states:

“This act shall be deemed an exercise of the police power of the commonwealth for the protection of the public welfare, health, peace, and morals of the people of the Commonwealth and to prohibit forever the open saloon, and all of the provisions of this act shall be liberally construed for the accomplishment of this purpose.”

The Commonwealth argues that the phase “in violation of this Act” is not confined to those acting without a license, but is intended to encompass any violation under the Liquor Code.

No appellate court cases are cited which decide whether Section 6-611 of the liquor Code applies only to non-licensees or whether it applies to nuisances created by either licensees or non-licensees so long as some violation of the Liquor Code is proven. There are, however, several lower court cases which provide guidance on this issue.

In Commonwealth v. Chassey’s Tavern, 59 D. & C.2d 262 (1973), the District Attorney of Philadelphia filed a complaint in equity under the Liquor Code of 1951, Section 6-611 seeking to enjoin the operation of a bar alleging that the operation constituted a nuisance. The Defendants in that case contended that Section 6-611 of the Liquor Code did not apply to licensees of the Liquor Control Board. Defendants based their conclusion on the origins of the Code during the era of prohibition and argued that the subsequent history of the section compelled that interpretation. The Court therein found that Section 6-611 does in fact provide an additional enforcement method supplementing the citation and revocation of license procedures accorded to the Pennsylvania Liquor Control Board. The Court therein stated that:

“The power accorded to the Pennsylvania Liquor control Board by the legislature is to control the manufacture, sale, consumption, use and storage of liquor in the commonwealth, but it is not the exclusive agency vested with investigative and prosecutorial authority over Liquor Code violations. The legislature has given specific authority to deal with certain phases of liquor activity to the Attorney General and to the district attorney of the county in which the activity takes place by enacting § 6-611 of the code. There is nothing in this section of the code or in the history of its enactment which limits its applicability to non-licensees. Moreover, the code itself, 47 PS § l-104(a), requires a liberal construction of its terms, thereby preventing this court from giving § 6-611 of the code the narrow application suggested by defendants.”

We agree with the Commonwealth’s contention on this issue.

Next appellant contends that the lower court erred when it considered violations of the crimes code which occurred off the licensed premises in determining that appellant’s establishment was a nuisance.

At a hearing held on September 15, 1985, testimony was presented which showed that patrons of the bar engaged in conduct such as urinating on the street and on the property of neighbors, drinking outside of the tavern, throwing empty beer bottles on the street or on to a neighbor’s property, loud and boisterous conduct including loud conversation, yelling, arguing, and fighting, as well as, generating loud noises from vehicles especially motorcycles. This conduct would go on all evening as late as 3:30 A.M. to 4:00 A.M. It interfered with the neighbors in the area and disturbed the peace and quiet of the neighborhood. Police reports indicated that activity of this nature occurred “practically every night late in the morning hours” and that there was all kinds of fighting, noises, and profanity. The evidence also demonstrated that beer was sold on at least one occasion to a minor by an employee of appellant, albeit without appellant’s permission since the employee was a caretaker and not authorized to tend bar. Nevertheless, this incident constituted a violation of the liquor code by the caretaker and the violation occurred on appellant’s premises.

Appellant argues that he cannot be held responsible for conduct of patrons of the bar (or former patrons as he puts it arguing that once they leave the establishment they are no longer patrons) when they are off the premises. This very contention was addressed in Reid v. Brodsky, 397 Pa. 463, 156 A.2d 334 (1959) wherein our Supreme Court stated as follows:

“Appellants argue that most, if not all, of the offensive conduct took place not within, but without, the restaurant premises and for such conduct appellants should not be held responsible. Until the establishment of this restaurant in the area such offensive public conduct was unknown; it was the establishment of the business within this area which attracted those persons whose conduct so mortified and disgusted the residents of this neighborhood. The factor which introduced this conduct into the area was the establishment of this taproom-business with its attraction for undesirables from other areas; assuming arguendo, that appellants could not control the conduct of their patrons outside the premises, is that any excuse for the continuance in business of this establishment whose existence is solely and primarily responsible for the attraction of those persons into this neighborhood whose conduct so offends the morals of the property owners situated therein? Assuming that appellants could not control the conduct of their patrons, is this business which brings into the area by way of attraction those persons whose conduct is reprehensible to be permitted to be operated simply because it has been given an aura of respectability and legality by the issuance of a liquor license? The conduct which has disturbed the peace and quiet of this residential area and affronted the sensibilities of appellees endeavoring to maintain in this urban area a decent, clean and wholesome environment in which to live and rear their families directly resulted from the operation of this taproom-restaurant. The only practical manner in which this are can be protected from this unwholesome conduct is through a cessation of the operation of this business.”

In Reid individual residents of a neighborhood initiated an action on their own seeking to enjoin a nuisance created by a local licensed liquor establishment. Appellant seeks to distinguish Reid from the instant case because our action was initiated by the district attorney and not by individual residents. However, Reid stands for the proposition that in determining whether an establishment constitutes a nuisance, the court can consider conduct of the establishment’s patrons which occurs off the premises so long as that conduct occurs in the immediate vicinity of the establishment.

We agree with the proposition that a tavern owner cannot be held responsible for each and every act engaged in by a patron of his establishment, especially when the conduct is committed off the premises. Nor can an isolated incident or even several incidents such as those described in the testimony of this case constitute a nuisance. However, when the evidence demonstrates a persistent and continuous disturbing of the peace and good order of the neighborhood as was shown in the instant case then it is within the power of the court to find that a nuisance exists and to take steps to enjoin that nuisance. In Commonwealth v. Tick, 427 Pa. 120, 233 A.2d 866 (1967). The district attorney of Philadelphia County filed an equity action to enjoin the operation of a licensed establishment pursuant to Section 6-611 of the Liquor Code. In its per curiam opinion the Supreme Court stated:

“Although the Appellees argue strenuously that they cannot be held liable for what occurred outside their premises, the evidence is clear and, indeed, so found by the trial court, that there was a causal relationship between the deplorable situation outside the premises and what went on inside the Wheel Bar.”

In Tick the issue was whether the lower court erred by merely ordering that the nuisance be enjoined and not ordering the premises closed. The court’s majority held that the court below was correct in finding that a nuisance existed but erred when it failed to order the tavern closed. The dissenting justices argued that the lower court had the discretion to enter either type of order. The question as to whether Section 6-611 of the liquor Code could be applied to licensed establishments does not appear to have been an issue. We note that Tick demonstrates that such actions have been maintained successfully by district attorneys of the Commonwealth.

As in Tick there was clearly a causal relationship between the situation outside the premises and what went on inside in our case. Finally, in Commonwealth v. Graver, 461 Pa. 131, 334 A.2d 667 (1975), where the Lancaster County District Attorney initiated an equity action to enjoin the operation of a tavern as a nuisance under Section 6-611 of the Liquor Code, the Supreme Court said:

“Moreover, testimony concerning conduct by bar patrons in the area of the bar who are attracted to the area by the manner of operation of the bar is competent evidence to support an injunction as a nuisance in law and in fact ... The voluminous testimony in this case of increasing abhorrent conduct by patrons in a once peaceful neighborhood, coupled with the admitted Liquor Code violations amply support the issuance of the injunction.”

In the instant case the testimony also demonstrated the existence of increasing abhorrent conduct by patrons of a tavern in a once peaceful neighborhood and this was coupled with at least one Liquor Code violation i.e. the serving of a minor by the caretaker. We find that the court below acted correctly when it admitted the evidence that it did and that it had the discretion to enter the order that it did.

Order affirmed.


author: DEL SOLE, Judge:

text:
    513 A.2d 1069
    COMMONWEALTH of Pennsylvania v. George CARROLL, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 22, 1984.
    Filed Aug. 11, 1986.

      Marilyn C. Zilli, Assistant Public Defender, Harrisburg, for appellant.
    Katherine E. Holtzinger, Deputy District Attorney, Harrisburg, for Com., appellee.
    Before DEL SOLE, POPOVICH and ROBERTS, JJ.
   DEL SOLE, Judge:

This appeal is from a Judgment of Sentence of 2lk — 5 years imprisonment, a fine of $300.00 plus the costs of prosecution imposed based upon Appellant’s conviction of possession with intent to deliver a controlled substance (heroin).

Of the eight issues raised by Appellant, this court, 482 A.2d 1292, had previously considered one and found it to be meritorious. The Commonwealth appealed to the Supreme Court of Pennsylvania which reversed this court’s order and remanded the case back to this court for consideration of Appellant’s remaining claims, 507 A.2d 819. Since we find another of Appellant’s claims to have merit, we address that claim herein and we again reverse Appellant’s Judgment of Sentence.

Appellant maintains his trial counsel was ineffective for failing to preserve for appeal an issue regarding the propriety of the trial court’s admission of a search warrant into evidence.

In examining Appellant’s ineffectiveness claim we must first determine whether the underlying claim has merit. Second, we must inquire whether counsel’s handling of the matter at issue had some reasonable basis designed to effectuate the client’s interests. Counsel is not ineffective unless there was no reasonable basis for the action, nor is counsel ineffective for not taking baseless or meritless action. Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984). The test for competency is not whether other alternatives are more reasonable, employing a hindsight evaluation of the record, but whether counsel’s assessment of the case and his advice were reasonable. Commonwealth v. Larkins, 340 Pa.Super. 56, 489 A.2d 837 (1985). In addition to the above, a finding of ineffectiveness requires a showing that the course of action pursued by counsel was prejudicial to the defendant so as to deprive him of a fair trial. Commonwealth v. Pierce, 345 Pa.Super. 324, 498 A.2d 423 (1985). At all times through the process, the law presumes counsel’s stewardship is effective and the burden of proving ineffectiveness of counsel rests with the appellant. Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (1984).

The ineffectiveness argument raised by Appellant is based upon counsel’s failure to preserve for appeal a question concerning the court’s admission of hearsay statements. These statements were contained in the probábale cause section of a search warrant which was admitted into evidence during Appellant’s jury trial. Among other things the warrant stated:

This confidential/reliable informanat indicated that drugs are being sold from this above listed room in the Econo Motel, and that George Carroll resides in this room. Affiant received information from another confidential informant concerning drugs at the above room in the Econo Motel. This confidential informant indicated that drugs are being sold from this room, and that George Carroll resides in this room and is selling drugs from the room.

The Commonwealth submits the statements are not hearsay because they were not offered for the truth of the matter asserted, but rather, to explain the course of action taken by police. The Commonwealth cites Commonwealth v. Matthews, 314 Pa.Super. 38, 460 A.2d 362, Commonwealth v. Ryan, 253 Pa.Super. 92, 384 A.2d 1243, and Commonwealth v. Tselepis, 198 Pa.Super. 449, 181 A.2d 710 (1962), to support its position.

It is true that an out-of-court statement offered to explain a course of conduct is not hearsay. Commonwealth v. Cruz, 489 Pa. 559, 414 A.2d 1032 (1980). “This court has repeatedly upheld the introduction of out-of-court statements for the purpose of showing that based on information contained in the statements, the police followed a certain course of conduct that led to the defendant’s arrest.” Commonwealth v. Underwood, 347 Pa.Super. 256, 259, 500 A.2d 820, 822 (1985). However, an out-of-court statement which is offered to prove its truth is hearsay and is generally inadmissable as evidence because the competency and veracity of the original speaker are not subject to examination. Commonwealth v. Floyd, 327 Pa.Super. 569, 476 A.2d 414 (1984), Commonwealth v. Lewis, 314 Pa.Super. 298, 460 A.2d 1149 (1983).

The statements in the instant case are inadmissable hearsay. Unlike the situations in the case cited by the Commonwealth, here the statements were not offered to show a course of police conduct, but rather, to prove their truth and establish a necessary element of the crime for which Appellant was being tried. The police easily could have explained the circumstances leading to Appellant’s arrest without the offending statements. The jury could have learned the police acted in response to a search warrant without admitting statements contained in the warrant, made by a person who was unavailable for cross-examination.

In this particular case the police seized seven “street dosages” of heroin in the pocket of a pair of women’s blue jeans, a hypodermic syringe, a “cooker” and $70.00 of “marked money” in a motel room occupied by Appellant, his wife and his daughter. The issues at trial involved proof of possession by Appellant and proof of Appellant’s intent to deliver the drugs, as opposed to making personal use of them. It is significant to note Appellant was not charged with making the controlled sale, instead he was only charged with possession with intent to deliver. Therefore, it was necessary to prove Appellant possessed the illegal drugs, and that he did so with the intent to transfer or deliver the controlled substances. Commonwealth v. Cardona, 316 Pa.Super. 381, 463 A.2d 11 (1983). The statements of the confidential informant “that drugs are being sold from this room, and that George Carroll resides in this room and is selling drugs from the room” goes directly to proving the elements at issue in Appellant’s trial.

Evidence of a controlled purchase can be used to infer that if a person possessed a particular drug he did so with intent to deliver. Id., Commonwealth v. Golden, 277 Pa.Super. 180, 419 A.2d 721 (1980). Accordingly, it would have been proper for the police officers to testify about any controlled purchases which they personally made, Commonwealth v. Cardona, supra, or actions which they personally observed involving a sale. However, even the trial court noted “the Commonwealth witnesses at trial (the officers) could not make any hearsay declarations as to what the informant told them as to the identity of the person from whom the purchase was made ...”. Trial Court Opinion at 5. The statements contained in the search warrant do precisely what the trial court said was impermissible, and the fact that the statements were contained in a writing and were not verbally communicated on the stand by the officers is of no significance.

We conclude the statements contained in the probable cause section of the warrant were hearsay and not admissa-ble under any exception to the hearsay rule. In addition, their admission clearly prejudiced Appellant since they went to the heart of the elements of the crime for which Appellant was being tried. We can conceive of no reasonable basis for counsel’s failure to preserve this meritorious issue, and we, therefore, vacate Appellant’s Judgment of Sentence, and remand the case for a new trial.

Judgment of Sentence reversed. Case remanded for a new trial. Jurisdiction relinquished.

      . The remaining six issues have also been examined, and upon review of these claims and the applicable law, we conclude that they each lack merit.