text:
    478 A.2d 1348
    George F. BROUSE and Beverly Z. Brouse, Appellants v. Lee R. HAUCK. George F. BROUSE and Beverly Z. Brouse, Appellants v. Richard E. DITZLER and Dorothy E. Ditzler.
    Superior Court of Pennsylvania.
    Submitted Jan. 20, 1984.
    Filed July 13, 1984.

      Joey A. Storaska, Sunbury, for appellants.
    R. Michael Kaar, Milton, for appellees.
    Before BROSKY, WIEAND and HESTER, JJ.
   WIEAND, Judge:

George and Beverly Brouse brought actions against Lee R. Hauck and against Richard and Dorothy Ditzler to quiet title to one-half of the bed of a vacated township road. They contended that they had acquired title by adverse possession or, at least, that they had acquired an easement by prescription with respect thereto. After they had presented their evidence to the court, which heard the action nonjury, a compulsory nonsuit was entered. Thereafter, the court removed the nonsuit with respect to the Brouse claim of a prescriptive easement over the portion of the road abutting the land of Lee Hauck. In all other respects, the court refused to remove the nonsuit. The court’s order is the subject of the present appeals.

In reviewing the propriety of a compulsory nonsuit, this Court will view the evidence in a light most favorable to the plaintiffs and give them the benefit of every reasonable inference arising therefrom. Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 371, 372 A.2d 736, 740 (1977); Barney v. Foradas, 305 Pa.Super. 404, 407, 451 A.2d 710, 712 (1982); Adams v. Euliano, 299 Pa.Super. 348, 349-350, 445 A.2d 788, 789 (1982). A nonsuit can only be entered in a clear case. Barney v. Foradas, supra; Adams v. Euliano, supra; Peair v. Home Association of Enola Legion No. 751, 287 Pa.Super. 400, 403-404, 430 A.2d 665, 666-667 (1981).

A portion of appellants’ farm in Milton, Northumberland County, abutted the northern edge of a township road. The southern edge of the township road was abutted by lands of appellant and also by lands of Hauck and Ditzler. When the township road was vacated in 1928, the center line of the former road became the common property line. The lands of the parties, with the disputed area shaded, appears from a sketch received in evidence as follows:

Brouse’s predecessor in title was Charles J. Hauck, who took title by conveyance in 1945. Charles Hauck used the entire bed of the vacated road regularly and continuously to reach the entrance to a barn situated at a point approximately opposite a line dividing the properties of Lee Hauck and Mr. and Mrs. Ditzler. Charles Hauck also used this route when he wished to gain access to the fields north of the railroad right of way with his farm equipment. The whole of the vacated road was maintained by Charles Hauck, who kept it clear of snow; it was used also by the Hauck children to play and ride their bicycles. Following the death of Charles Hauck, his widow conveyed the farm in 1963 to Homer Brouse, the father of George Brouse. George Brouse acquired title in 1975. He testified that he and his father had continuously used the vacated township road for similar purposes until the present time. This evidence was sufficient, if believed, to show a prescriptive right to use the disputed southern half of the vacated road for right of way purposes. See: Mather-Klock, Inc. v. Plymire, 349 Pa. 194, 36 A.2d 802 (1944); Minteer v. Wolfe, 300 Pa.Super. 234, 446 A.2d 316 (1982). Therefore, the court correctly removed the nonsuit as to appellants’ claim against Lee Hauck. The refusal to remove the nonsuit as to appellants’ claim of title by adverse possession was also correct. The burden of proof was on the appellants. In Reed v. Wolyniec, 323 Pa.Super. 550, 471 A.2d 80 (1983), this Court said:

“[O]ne who claims title by adverse possession must prove that he had actual, continuous, exclusive, visible, notorious, distinct, and hostile possession of the land for twenty-one years. Each of these elements must exist, otherwise the possession will not confer title.” Inn Le’Daerda, Inc. v. Davis, 241 Pa.Super. 150, 158, 159, 360 A.2d 209, 213 (1976). An adverse possessor “must intend to hold the land for himself, and that intention must be made manifest by his acts.” Kaminski Brothers, Inc. v. Grassi, 237 Pa.Super. 478, 480, 352 A.2d 80, 81 (1975). He must “keep his flag flying and present a hostile front to all adverse pretensions.” Commonwealth v. Bierly, 37 Pa.Super. 496, 504 (1908). Building a residence on land or cultivating it in a regular and continuous way may after 21 years result in ownership. See The Susque hanna and Wyoming Valley RR and Coal Co. v. Quick, 68 Pa. 189 (1871); Cf. Ewing v. Dauphin County Tax Claim Bureau, 31 Pa.Cmwlth. 285, 375 A.2d 1373, 1375 (1977). However, as has been repeatedly said, “temporary acts on the land, ... are not the actual possession required.” Inn Le’Daerda v. Davis, supra, 241 Pa.Super. at 159, 360 A.2d at 213 . . . .
It seems fair to summarize this case law as holding that only acts signifying permanent occupation of the land and done continuously for a twenty-one year period will confer adverse possession.

Id., 323 Pa.Super. at 557, 471 A.2d at 84, quoting Smith v. Peterman, 263 Pa.Super. 155, 160-161, 397 A.2d 793, 796 (1978). Appellants’ evidence was sufficient, if believed, to show a prescriptive easement over that portion of the vacated road bed which abutted the land owned by Lee Hauck; the evidence was insufficient, however, to support a claim of title by adverse possession.

The evidence showed that Charles Hauck had also used the portion of the vacated road which abutted the Ditzler land for right of way purposes. After 1963, when title had been conveyed by Charles Hauck’s surviving wife, Homer Brouse and his family continued to use the vacated road bed. However, the nature and quality of their use changed. Homer Brouse erected a fence along the southern edge of this part of the vacated road, and he and his son maintained the land north of the fence as their own. They cut the grass and used the land for the grazing of cattle and for the storage of lumber, wire and other items. After 1977, when the Ditzlers challenged appellants’ continuing use of this part of the road bed, appellants continued to exercise dominion over the bed of the vacated road until this action was commenced.

We agree with the trial court that these facts were insufficient to permit a finding of title by adverse possession. Appellants’ exercise of dominion and exclusive possession of this portion of the road bed, if their evidence is believed, continued only during the period from 1963 to 1977. This was of inadequate duration to permit a finding of title by adverse possession. See: Inn Le’Daerda, Inc. v. Davis, 241 Pa.Super. 150, 169-170, 360 A.2d 209, 218-219 (1976).

The entry of a compulsory nonsuit against appellants’ claim of an easement by prescription over this portion of the road bed, however, was error. Charles Hauck’s use of this portion of the vacated township road for right of way purposes continued uninterrupted from 1945 to 1963. Thereafter, Homer Brouse took possession of and continued to use the road bed without interruption or challenge until 1977. For approximately 32 years, therefore, appellants and their predecessors in title have asserted a continuous and adverse interest in the southern one-half of the vacated bed of the township road. The accrual of a prescriptive right to use it would not be prevented merely because the Brouses increased the nature and quality of their use after 1963 so that they actually took complete possession of the road bed abutting the Ditzler land to the exclusion of others. For 18 years, Homer Brouse’s predecessors had used the bed of the vacated road for right of way purposes. They did so adversely, hostilely, and without permission. Thereafter, Homer Brouse and his son continued to use it, but they went further and exercised exclusive and adverse possession of the vacated road for another fourteen years. A principal objective of the law concerning prescription is the protection of long established positions. Restatement Property (Introductory Note, Chap. 38, p. 2923) (1944). Therefore, although these facts were insufficient to establish ownership by adverse possession, they were sufficient, if believed, to establish a prescriptive right to use the vacated bed of the road for right of way purposes.

Whether appellants’ use was permissive or otherwise lacked the element of being hostile, as appellees contend, cannot now be determined finally. This must await determination by the court after all the evidence has been presented. The entry of a compulsory nonsuit with respect to appellants’ claim of a right by prescription was error.

The refusal to remove the compulsory nonsuit as to appellants’ claim of an easement by prescription is reversed, and the case is remanded for proceedings consistent with the foregoing opinion. The refusal to remove the compulsory nonsuit entered as to appellants’ claim of title by adverse possession is affirmed. Jurisdiction relinquished.

      . Charles J. Hauck and Lee Hauck are not related.


source: Caselaw Access Project

author: SPAETH, President Judge:

license: Public Domain

text:
    478 A.2d 1352
    Elizabeth NEWBERG, a Minor, by Herbert NEWBERG and Babbette Josephs, her Parents and Guardians, Pauline H. King, a Minor, by Hugh King, her Parent and Guardian, Jessica S. Bonn, a Minor, by Anne Bonn and Jerrold Bonn, her Parents and Guardians v. BOARD OF PUBLIC EDUCATION, School District of Philadelphia, Dr. Constance E. Clayton, Superintendent of Schools, and Dr. Richard D. Haunsey, Assistant Superintendent for Field Operations. Appeal of STUDENTS CURRENTLY ATTENDING PHILADELPHIA HIGH SCHOOL FOR GIRLS et al.
    Superior Court of Pennsylvania.
    Argued May 1, 1984.
    Filed July 20, 1984.

      Hyman Lovitz, Philadelphia, for appellants.
    Arthur H. Bryant, Philadelphia, for Newberg, et al., appellees.
    Andrew M. Rosen, Philadelphia, for Board of Public Ed., et al., appellees.
    Before SPAETH, President Judge, and BROSKY and CIRILLO, JJ.
   SPAETH, President Judge:

This case is before us on two appeals, which have been consolidated. The first of the appeals will be quashed. On the second appeal, we affirm.

The action is a class action seeking the admission of females to Central High School. The named Plaintiffs are three female students whose applications for admission to Central were denied only because they were female. The defendants are the Board of Public Education, the School District of Philadelphia, the Superintendent of Schools, and the Associate Superintendent for Field Operations. After a hearing on the plaintiffs’ motion for a preliminary injunction, the trial court issued a decree nisi, with proposed findings of fact and conclusions of law, holding that the gender-based exclusion of the plaintiffs from Central violated the plaintiffs’ rights under the Equal Rights Amendment to the Pennsylvania Constitution, Pa. Const., Art. I § 28, and the Fourteenth Amendment to the United States Constitution. On September 28, 1983, the court dismissed most of the defendants’ exceptions to the decree nisi and issued amended findings of fact with a final decree permanently enjoining the defendants from refusing to admit female students to Central. When the defendants chose not to appeal, appellants, who are several students and graduates of Central and Philadelphia High School for Girls, on October 21, 1983, filed Appeal Number 2934 Philadelphia District challenging the final decree. On October 24, 1983, appellants filed a petition for leave to intervene in the action. After a hearing, the trial court by order dated October 26, 1983, denied the petition; and on November 17, 1983, appellants filed Appeal Number 3112 Philadelphia District challenging that order.

Appellants make several arguments, which may be generally summarized as urging that they were denied due process; that the issues in this case had already been decided against the class in Vorchheimer v. School District of Philadelphia, 400 F.Supp. 326 (E.D.Pa.1975), rev’d 532 F.2d 880 (3d Cir.1976), aff’d by an equally divided court, 430 U.S. 703, 97 S.Ct. 1671, 51 L.Ed.2d 750 (1977), and therefore the decision in this case is controlled by principles of res judicata and collateral estoppel; and that in any event, the Philadelphia High School for Girls is equal to Central, and the maintenance of two equal, single-gender public schools is substantially related to a legitimate government purpose. However, we may not consider these arguments.

“Except where the right of appeal is enlarged by statute, any party who is aggrieved by an appealable order ... may appeal therefrom.” Pa.R.A.P. 501 (emphasis added). Accordingly, an appeal by one who was not a party to a proceeding in the trial court must be quashed. Mechanics National Bank v. Buchman, 253 Pa. 245, 97 A. 1056 (1916); In re Devereux’s Estate, 353 Pa. 560, 46 A.2d 168 (1946) (no standing to appeal because appellant never properly became a party to the proceeding in trial court). The Appellate Rules do not define the term “party.” However, the note following the definitional rule, Pa.R.A.P. 102, states that that rule is based on 42 Pa.C.S. § 102, which defines “party” as “a person who commences or against whom relief is sought in a matter____” In this case, appellants participated in the proceedings before the trial court only as amici curiae. They therefore had no standing to appeal the trial court’s final decree. Mechanics National Bank, supra; In re Petition to Amend Home Rule Charter of City of Pittsburgh, 69 Pa.Cmwlth. 292, 450 A.2d 802 (1982) (person who only participated as amicus curiae in trial court is not party and has no standing to appeal). Appeal Number 2984 must therefore be quashed.

It was, one may assume, in anticipation of this conclusion that appellants petitioned for leave to intervene in the action. However, a petition for leave to intervene must be filed during the pendency of the action. Pa.R.C.P. 2327. After final adjudication, a petition to intervene is too late. Admiral Homes, Inc. v. Floto Management Corporation, 397 Pa. 509, 156 A.2d 326 (1959); Robinson Township School District v. Houghton, 387 Pa. 236, 128 A.2d 58 (1956). Here, the final adjudication was on September 28, 1983, but appellants did not file their petition for leave to intervene until October 24, 1983. The petition was therefore not timely, and was properly denied.

Appellants argue that they had the right to assume that the defendants would protect their interests, and that they filed their petition for leave to intervene “immediately”, Brief for Appellants at 51, after learning that the defendants would not appeal the trial court’s final adjudication. However that may be, under Admiral Homes and Robinson Township they were obliged to file their petition before the adjudication.

Appeal Number 2934 is quashed. On Appeal Number 3112, the order of the trial court denying appellants’ petition for leave to intervene is affirmed.

      . Central High School and Philadelphia High School for Girls are the only schools in the Philadelphia School system in which all of the students are preparing for college. R. 257 a. At the time this action was commenced Central High School admitted only males and Philadelphia High School for Girls, only females; they were the only single-gender schools in the Philadelphia school system. Plaintiffs’ Requests for Admissions, No. 26.


author: BROSKY, Judge:

text:
    478 A.2d 1355
    COMMONWEALTH of Pennsylvania v. Mark HEISER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 20, 1984.
    Filed July 20, 1984.

      John J. Thomas, Assistant Public Defender, Wilkes-Barre, for appellant.
    Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before BROSKY, WIEAND and HESTER, JJ.
   BROSKY, Judge:

This is an appeal from the order denying appellant bail. Appellant contends that the court below erred in denying bail because the Commonwealth failed to prove either of the alternate grounds that he had committed a capital offense or that he would not appear for trial regardless of the character or the amount of the bail. We find that the Commonwealth satisfied its burden of proof as to the former ground and, accordingly, affirm the order of the lower court.

On August 15, 1982, appellant was arrested and charged with criminal homicide in the death of one Paul Kulina. He was then remanded to Luzerne County Prison without bail.

On September 2, 1982, a preliminary hearing was held at which it was held that a prima facie case had been established. Appellant then petitioned the court below to establish bail. After a hearing, this petition was denied. This appeal followed.

Appellant contends that at the bail hearing the Commonwealth failed to establish either of the two alternative grounds for denial of bail. He first argues that the Commonwealth did not prove that he had committed a capital offense. Appellant correctly states the law that:

All prisoners shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or presumption great____

42 Pa.C.S.A. § 5701; see Pa. Const. Art. I, § 14.

A capital offense within this section is a crime for which the death penalty may be imposed. Commonwealth v. Caye, 447 Pa. 213, 290 A.2d 244 (1972). Only murder in the first degree is so punishable. Id., see 18 Pa.C.S.A. § 2502(a), 42 Pa.C.S.A. § 9711.

At a bail hearing, the Commonwealth bears the burden of proof. Commonwealth v. Truesdale, 449 Pa. 325, 296 A.2d 829 (1972). It can satisfy its burden to prove that a defendant is not entitled to bail by establishing a prima facie case of murder in the first degree. Commonwealth v. Farris, 443 Pa. 251, 278 A.2d 906 (1971); Cf. Commonwealth ex rel. Alberti v. Boyle, 412 Pa. 398, 195 A.2d 97 (1963).

Instantly, the Commonwealth, at the bail hearing, presented one Joseph Catrone who testified that on August 14, 1982, he was a passenger in a car driven by appellant. He further stated that Paul Kulina came over to the car on the passenger’s side and, completely unprovoked, appellant reached across Catrone and shot Kulina in the head. Appellant then pulled away, went off the main road, broke the gun and threw it away. Then, he took the car to a car wash to remove the blood from the right front door.

Appellant contends that based on this evidence the Commonwealth failed to meet its burden of proof because there was no evidence offered that appellant killed the victim with malice aforethought or with premeditation. However, we note that

It is well settled that “the use of a gun on a vital part of the deceased’s body raises the presumption that the defendant shot with the intent to kill the deceased.” Commonwealth v. Ewing, 439 Pa. 88, 92, 264 A.2d 661, 663 (1970) (emphasis in original). Accord, Commonwealth v. Robinson, 468 Pa. 575, 582-83, 364 A.2d 665, 669 (1976). It is equally well-settled that the period of premeditation necessary to form the specific intent to kill may be very brief. Commonwealth v. Robinson, supra.

Commonwealth v. Thornton, 494 Pa. 260, 267, 431 A.2d 248, 252 (1981). Furthermore, the evidence that appellant shot across Catrone constituted a prima facie showing of an aggravating circumstance under 42 Pa.C.S.A. 9711(d)(7).

Thus, we find that the Commonwealth did establish a prima facie showing of murder in the first degree and the existence of an aggravating circumstance. Therefore, we conclude that the lower court did not err in denying appellant’s petition for bail.

Accordingly, the order of the lower court is affirmed.

      . Jurisdiction of this appeal is under Pa.R.A.P. 1762(a) which makes the instant order subject to review pursuant to Chapter 15 of the Rules of Appellate Procedure. See Commonwealth v. Cabeza, 489 Pa. 142, 145 n. 2, 413 A.2d 1054, 1055, n. 2 (1980). Although Pa.R.A.P. 1502 provides that the exclusive procedure for judicial review under that chapter is a petition for review, Pa.R.A.P. 1503 states that an improvidently filed appeal shall not be dismissed, but regarded and acted upon as a petition for review.

        . § 9711 governs the sentencing procedure for murder of the first degree and provides in subsection (c)(1)(iv) that:
      the verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance specified in subsection (d) and no mitigating circumstance or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances. The verdict must be a sentence of life imprisonment in all other cases.
      The death penalty provisions were found to be valid under both the federal and state constitutions in Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982).

      . We caution that this statement should be considered limited to the facts of this case. It is arguable that, since murder of the first degree now can only result in a death penalty when certain enumerated aggravating circumstances are found (which must outweigh any mitigating circumstances also found), the Commonwealth must also make a prima facie showing of the existence of one of these aggravating circumstances in order for bail to be denied on the basis of the crime charged being a capital offense. See Commonwealth ex rel. Fitzpatrick v. Bullock, 471 Pa. 292, 299 n. 4, 370 A.2d 309, 312 n. 4 (1977); Commonwealth v. Madison, 11 Pa. D & C 3d 161 (C.P. Lawrence Co. 1979); see generally, Commonwealth v. Truesdale, supra. However, as discussed infra, we need not decide this question, since we find that the Commonwealth, in fact, did show the existence of an aggravating circumstance.

      . 42 Pa.C.S.A. 9711(d)(7) establishes the following as an aggravating circumstance:
      In the commission of the offense the defendant knowingly created a grave risk of death to another person in addition to the victim of the offense.

      . Since the Commonwealth did make a prima facie showing of the existence of an aggravating circumstance, we need not determine whether our conclusion would have differed had this showing not been made.

      . Given our disposition of the lower court’s decision under 42 Pa.C.S.A. § 5701, we need not discuss appellant’s contention that the court below erred in determining that bail could be denied because it concluded that he would not appear for trial, see Commonwealth v. Truesdale, supra.


text:
    478 A.2d 1357
    TOWNSHIP OF ELDRED, et al., Appellants, v. COUNTY OF MONROE, Nancy Shukaitis, Jesse D. Pierson and Thomas R. Joyce and Monroe County Board of Assessment Appeals.
    Superior Court of Pennsylvania.
    Argued March 28, 1984.
    Filed July 20, 1984.

      Cyril D. Higgins, Stroudsburg, for appellants.
    Robert H. Nothstein, Stroudsburg, for appellees.
    Before BROSKY, WIEAND and McEWEN, JJ.
   BROSKY, Judge:

This appeal is from the dismissal of appellant’s suit in equity, challenging a settlement in a taxpayer’s suit. This matter comes within the jurisdiction of the Commonwealth Court.

(a) ... the Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in the following cases: ... (4) Local government civil and criminal matters. — (i) ... where is drawn in question the application, interpretation or enforcement of any: ... (b) ... local ordinance or resolution.

42 Pa.C.S. § 762.

A case involving, as this one does, a county tax comes within the language “local ordinance or resolution.” See In re Appeal of Pennsylvania Eastern Seal Society from Real Estate Taxation Assessment, 67 Pa.Cmwlth. 94, 445 A.2d 1369 (1982). Thus, this case comes within the jurisdiction of the Commonwealth Court.

We note that:

However, because appellee failed to object to this court’s lack of jurisdiction, our jurisdiction has been perfected, and we have discretion either to decide the case on the merits or transfer it to Commonwealth Court. 42 Pa.C.S. § 704(a); Pa.R.A.P. 741(a); see Jost v. Phoenixville Area School District, 267 Pa.Super. 461, 465 n. 1, 406 A.2d 1133, 1135 n. 1 (1979); see also Commonwealth v. Meyer, 488 Pa. 297, 304-05 n. 9, 412 A.2d 517, 520 n. 9 (1980).

Commonwealth v. Sensi, 287 Pa.Super. 452 at 454, 430 A.2d 691 at 692 (1981).

It is also true here that:

As in Commonwealth v. Sensi, supra, we believe the Commonwealth Court’s greater expertise in the issues raised here make transfer to that court appropriate. Moreover, transfer of this case will prevent unnecessary-confusion and lack of coordination, since Commonwealth Court will be the forum for similar cases in this ... area of the law ...

Osser v. City of Philadelphia, 295 Pa.Super. 447 at 449, 441 A.2d 1317 at 1318 (1982).

Accordingly, this appeal is transferred to the Commonwealth Court.


text:
    478 A.2d 1359
    George CHARLES, Appellant, v. GIANT EAGLE MARKETS v. STANLEY MAGIC DOOR, INC. and Jed Doors.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1983.
    Filed July 20, 1984.
    Petition for Allowance of Appeal Granted Jan. 30, 1985.

      Neil J. Rovner, Harrisburg, for appellant.
    John D. Newborg, Pittsburgh, for Giant Eagle, appellee.
    Alan Shapiro, Pittsburgh, for Stanley Magic, appellees.
    Before BROSKY, McEWEN and BECK, JJ.
   BROSKY, Judge:

This is an appeal from the order of the court below directing that judgment on the cases be marked as satisfied. Appellant contends the lower court erred in so ordering because where a plaintiff enters into a release with one joint tort-feasor, the amount of which exceeds that tort-fea-sor’s later determined proportionate share of liability, the Comparative Negligence Act, 42 Pa.C.S.A. § 7102, precludes the non-settling tort-feasor from tendering the plaintiff only the difference between the verdict and the settlement amount where the difference is less than the non-settling tort-feasor’s proportionate share of liability. We disagree with appellant and affirm the order of the trial court.

This case arose when appellant, George Charles, the plaintiff below, brought an action in trespass against Giant Eagle Markets, Inc. for damages as a result of injuries sustained when he slipped and fell by an entrance to one of its retail stores. Giant Eagle joined Stanley Magic Door, Inc. and Jed Door as additional defendants.

Before the case was tried, Giant Eagle settled with appellant for $22,500 in exchange for a joint tort-feasor’s release. After trial, the jury returned a verdict against Giant Eagle and Stanley in the amount of $31,000 dollars. Furthermore, the jury found Giant Eagle to have been 60% negligent and Stanley to have been 40% negligent. This verdict, had there been no release, would have necessitated a payment of $18,600 by Giant Eagle and $12,400 by Stanley.

Stanley entered judgment on the verdict and claimed that since Charles had already received $22,500 from Giant Eagle that Charles was only entitled to receive the difference between that amount and the $31,000 verdict ($8,500) notwithstanding Stanley’s liability of $12,400. Stanley paid $8,500 to Charles, but Charles reserved his claim to the remainder of Stanley’s liability of $3,900.

Stanley filed a petition to have the judgment marked satisfied contending that the $31,000 verdict and judgment had been paid in full after Charles’ receipt of $22,500 from Giant Eagle and $8,500 from Stanley. The lower court agreed with Stanley and ordered the judgment marked satisfied. This appeal followed.

Appellee Stanley argues that its position is mandated by the Pennsylvania Uniform Contribution Among Tortfeasors Act, Act of July 9, 1976, P.L. 586, No. 142, § 2 eff. June 27, 1978, 42 Pa.C.S.A. § 8321 et seq. Specifically, it cites § 8326, which provides as follows:

A release by the injured person of one joint tort-feasor, whether before or after judgment, does not discharge the other tort-feasors unless the release so provides, but reduces the claim against the other tort-feasors in the amount of consideration paid for the release or in any amount or proportion by which the release provides that the total claim shall be reduced if greater than the consideration paid.

Stanley also relies upon the opinion of the Pennsylvania Supreme Court in the case of Daugherty v. Hershberger, 386 Pa. 367, 126 A.2d 730 (1956) in which the Supreme Court interpreted § 4 of UCATA. In that case, the plaintiffs instituted actions against defendant Hershberger and a co-defendant Mong. Before trial, the plaintiffs entered into a settlement agreement and signed releases with Mong for the sum of $13,000. The releases provided that the claims against all the other tort-feasors were reduced to the extent of Mong’s pro rata share of liability. Since there were only two parties responsible for the accident, Mong and Hersh-berger, this reduction was 50%. Hershberger joined Mong as an additional defendant and the trial resulted in a verdict of $11,720 against Hershberger and Mong. The plaintiffs sought to recover one-half the verdict or $5,860.50 from Hershberger. However, Hershberger argued that he should be liable to the plaintiffs only for the difference between the amounts paid in settlement and the verdict entered for each of the plaintiffs. Where the amounts of the settlements exceeded the verdict amounts, he argued that the verdicts should be discharged. The Supreme Court agreed with Hershberger stating that

... if the proportion of reduction provided by the release is greater than the amount of the consideration paid for the release, such proportion of reduction prevails, but if, on the other hand, the consideration paid for the release is greater than the proportion of reduction provided by the release, then the amount of the consideration paid for the release prevails.

Daugherty, 386 Pa. at 373, 126 A.2d at 733.

The court further noted that this holding would continue the common law rule of allowing but one satisfaction for an injury, while enabling the injured party to settle with one tort-feasor and still have recourse to additional tort-feasors for additional compensation. Thus, Stanley argues that the Pennsylvania Uniform Act requires that Charles’ claim be reduced by the amount of the consideration paid for the release which was executed by Charles because the proportion by which the total claim is to be reduced as provided for in the release and determined by the jury is less than the consideration paid for the release ($18,600 v. $22,500).

Appellant contends, however, that the Comparative Negligence Act has impliedly amended the Pennsylvania Uniform Act such that he is entitled to 40% of the verdict irrespective of the settlement made with Giant Eagle. He bases this contention on 42 Pa.C.S.A. § 7102(b) which provides that:

Recovery against joint defendant; contribution.— Where recovery is allowed against more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of his causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed. The plaintiff may recover the full amount of the allowed recovery from any defendant against whom the plaintiff is not barred from recovery. Any defendant who is so compelled to pay more than his percentage share may seek contribution.

The issue of whether this section means that a non-settling tort-feasor must pay to a plaintiff the full percentage share of its liability notwithstanding an earlier settlement between the plaintiff and joint tort-feasor is apparently one of first impression in this jurisdiction. Appellant argues that if such is not the meaning of this section, a non-settling tort-feasor enjoys an unjust windfall benefit of the excess amount paid by the settling tort-feasor. He draws this conclusion from 42 Pa.C.S.A. § 8324(c) which provides:

Effect of settlement. — A joint tort-feasor who enters into a settlement with the injured person is not entitled to recover contribution from another joint tort-feasor whose liability to the injured person is not extinguished by the settlement.

Thus, he concludes that if § 7102(b) is not interpreted in the manner he desires, joint tort-feasors would be discouraged from settling cases knowing that they would be risking everything while another, and possibly more culpable, tort-feasor might avoid payment. He notes that his interpretation might lead to a windfall benefit for a plaintiff but argues that while a plaintiff ideally should not receive more than one satisfaction for a wrong, if additional enrichment must necessarily flow to someone, the more just result is to have the person wronged receive the benefit, not the wrongdoer.

However, appellant’s assertions to the contrary notwithstanding, we do not believe that we are presented with a situation in which additional enrichment must necessarily flow to one or the other of the parties. We agree with the lower court and appellees that appellant has proceeded on the erroneous assumption that a windfall would necessarily flow to Stanley in the present case under the Daugherty rule. Appellant has apparently overlooked the companion case to Daugherty of Mong v. Hershberger, 200 Pa.Super. 68, 186 A.2d 427 (1962), allocatur denied (1963), which construed § 2 of UCATA to permit a right of contribution on the part of a settling tort-feasor, when by the settlement, the settling tort-feasor pays more than his share of the total liability ultimately found. In that situation the rule would thus allow the settling tort-feasor to seek contribution from a non-settling tort-feasor to the extent that the amount paid by the settling tort-feasor exceeds his percentage of negligence, but in no event more than the percentage of negligence attributable to the non-settling tort-feasor.

Instantly, if the Daugherty rule is applied and Charles is permitted to recover only $8,500 from Stanley, Giant Eagle then, under Mong, could recover $3,900 in contribution from Stanley. Therefore, the non-settling tort-feasor (Stanley) would not obtain an undeserved benefit and the plaintiff below (appellant) would not obtain a windfall.

We conclude that this result is clearly more logical and just than that urged upon us by appellant and therefore conclude that the trial court correctly determined that the only change made by § 7102(b), in the context with which we concerned, was to change pro rata liability to proportionate liability.

Accordingly, we will affirm the order of the trial court.

Order affirmed.

      . In reaching our decision in this case, we have relied heavily upon the comprehensive and well-reasoned opinion of the trial court.

      . The parties are in agreement that Jed Door and Stanley Magic Door, Inc. are a single entity.

      . The release read as follows:
      It is Further Understood and Agreed that I ... am not releasing any claims and demands that I have against any person, association or corporation other than GIANT EAGLE MARKETS, INC., his agents and employees on account of the ... injuries and damages sustained by me ..., but for the consideration paid me herein, I further agree that any recovery that I may obtain against any person, association, or corporation other than GIANT EAGLE MARKETS, INC. on account of said ... injuries and damages shall be reduced to the extent of the pro rata share of such damages as may be attributable to GIANT EAGLE MARKETS, INC____of my damages recoverable against all the tortfeasors.

      . § 8326 is a reenactment of Section § 4 of the Uniform Contribution Among Tortfeasors Act of 1951 (hereinafter UCATA).

      . § 8324 is a reenactment of Section 2 of UCATA.

      . This is a statement of the rule in Mong as it would be appropriately modified to reflect a change from pro rata liability to proportionate liability.

      . We acknowledge appellant’s argument that other jurisdictions with similar statutes have considered this question and have reached the result urged by appellant. See, Rogers v. Spady, 147 N.J.Super. 274, 371 A.2d 285 (1977) (dicta); Bartels v. City of Williston, N.D. 276 N.W.2d 113 (1979); Pierringer v. Hoger, 21 Wis.2d 182, 124 N.W.2d 106 (1972). We are not persuaded by these cases, however, because they do not contemplate or discuss the type of legal precedent present in Pennsylvania due to the Daugherty and Mong decisions. Instead, these cases are based — as appellant would have us base the instant case — on the rationale that if either the plaintiff or the non-settling tort-feasor must be given an undeserved benefit, the preferable party to receive that benefit is the plaintiff. As explained above, because of the Daugherty and Mong opinions, we are not faced with this choice. Therefore, we decline to follow the decisions of other jurisdictions which have had to so choose.


author: MONTEMURO, Judge:

text:
    478 A.2d 1362
    George SKOWRONSKI and Marie Skowronski, his wife, Appellants, v. Marilyn BAILEY.
    Superior Court of Pennsylvania.
    Argued May 23, 1984.
    Filed July 20, 1984.

      Norman Lubin, Williamsport, for appellants.
    Susan R. Ferrell, Williamsport, for appellee.
    Before DEL SOLE, MONTEMURO and HOFFMAN, JJ.
   MONTEMURO, Judge:

This is an appeal from the order of the Court of Common Pleas of Lycoming County granting summary judgment in favor of the defendant below, Marilyn Bailey, and against the plaintiffs below, George and Marie Skowronski. The Skowronskis (appellants) contend that summary judgment was improper inasmuch as there existed genuine issues of material fact which should have been submitted to the jury. They further assert that the lower court erred in favorably assessing the credibility of the deposition testimony of appellee, Marilyn Bailey, in deciding to grant her summary judgment motion. We agree.

Under the Rules of Civil Procedure, Pa.R.C.P. 1035(b), a party shall be entitled to summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In Amabile v. Auto Kleen Car Wash, 249 Pa.Super. 240, 376 A.2d 247 (1977), the court explained:

The burden of demonstrating that no genuine issue of material fact exists and that one is entitled to a judgment as a matter of law, is on the moving party, and the record must be examined in a light most favorable to the non-moving party, (citations omitted). In McFadden v. American Oil Co., 215 Pa.Super. 44, 48-49, 257 A.2d 283, 286 (1969), this court noted:
“In passing upon a motion for summary judgment, the trial court’s function is not to decide issues of fact, but solely to determine whether there is an issue of fact to be tried. All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party____ Finally, a summary judgment should be granted only when the case is clear and free from doubt.”

Id., 249 Pa.Superior Ct. at 245, 376 A.2d at 249-50.

The appellants’ cause of action arose out of an incident wherein appellant, Marie Skowronski, was riding her bicycle along Heshbon Road in Old Lycoming Township. As she rode past appellee’s house, a dog owned by appellee ran into the street and collided with appellant’s bicycle causing her to fall and seriously injure her knee.

After the close of the pleadings, the depositions of appellant, Marie Skowronski, and the appellee were taken. Marie Skowronski testified that she was riding her bicycle along Heshbon Road at approximately 7:00 P.M. on June 5, 1981. When she passed the appellee’s house, she saw appellee in the yard with the dog. The dog appeared to be agitated. She stated that she thought the dog was restrained. The appellant proceeded a short distance past the house when she noticed the dog running toward her from approximately six (6) to ten (10) feet away. She thought she saw a piece of chain waving as the dog was running. The dog hit the front wheel of the bicycle with its snout and paws knocking it over. The appellant further stated that after the accident, appellee visited her in the hospital and admitted that the dog was chained and the chain had snapped. Appellant also asserted that appellee told her the dog was unaccustomed to being with people. Appellant stated that she had never seen the dog before or since the accident.

The appellee testified that the dog, one of two which she owned, was kept primarily inside. At all times when it was outside, the dog was on a leash which was held by the appellee or was attached to a chain which was affixed to a tree on the appellee’s property. The appellee stated that, at the time of the incident, she was inside her house and that the dog had been outside on the chain for approximately forty-five (45) minutes. Appellee heard the dog bark and went to the door, where she saw that the chain was broken and that the dog was running into the street. Appellee saw the dog go between the wheels of the bike and then saw the bike fall on the dog. When called by appellee, the dog returned. Appellee further testified that the dog was friendly and liked people. She admitted that the dog often barked at passers-by and extended the chain to its full length when doing so. She asserted that: “All the dog’s chains have always been purchased in a hardware store rather than a commercial Hart’s band or whatever because they have a heavier gauge chain.” (Deposition of Marilyn Bailey at 13). She went on to assert that she inspected the chains periodically and bought new ones when they were worn — approximately once a year. She revealed that the swivel portion of the chain which was affixed to the tree had broken, and that the chain was turned over to her insurance company after the accident.

Relying on the court’s opinion in Miller v. Hurst, 302 Pa.Super. 235, 448 A.2d 614 (1982), the lower court found that in order to prevail “the plaintiff must be able to establish that the defendant intentionally allowed the dog to run free or that the defendant was negligent in allowing the dog to run free.” Lower Court Opinion at 2. The court then determined that based on the deposition testimony of appellant and appellee, the appellants could not support, and in fact had refuted, the allegations set forth in their complaint.

In Miller v. Hurst, id, we held that an unexcused violation of Section 702 of the Dog Law of 1965 constituted negligence per se. The court went on to state: “A dog owner may always show that his or her dog escaped despite the exercise of due care. In such cases, the roving of the dog would not constitute negligence.” Id., 302 Pa.Superior Ct. at 244 n. 8, 448 A.2d at 619 n. 8.

Our reading of the deposition testimony of the parties leads us to conclude that a genuine issue of material fact exists with respect to this action, and that it is not clear that the appellee is entitled to judgment as a matter of law.

The lower court concludes that the deposition testimony of the appellant and the appellee refutes the allegation in appellants’ complaint that appellee, “wrongfully kept a certain dog, which she permitted to go at large in Old Lycom-ing Township, Lycoming County, Pennsylvania.” In fact, the testimony of both appellant and appellee shows that the dog was at large. There is no requirement that the appellants demonstrate a prior history of the dog running loose, only that it was running loose at the time of the incident in question. It is undisputed that the testimony does not indicate that allowing the dog to run loose was an intentional act on the part of the appellee, nevertheless appellants’ complaint does not assert any intentional act. Rather it is susceptible to an interpretation that the dog was at large due to the negligence of the appellee. If appellants could establish such negligence — either through violation of the Dog Law or through common law principles of negligence— then they would, upon a proper showing of causation, be able to establish the liability of the appellee.

With respect to the question of whether the appellee exercised due care in restraining the dog, there is deposition testimony by the appellee concerning the type of chain used, and concerning appellee’s practice in selecting, inspecting and replacing the chain. This type of testimony, however, is incompetent to support a motion for summary judgment:

“Testimonial affidavits of the moving party or his witnesses, not documentary, even if uncontradicted, will not afford sufficient basis for the entry of summary judgment, since the credibility of the testimony is still a matter for the jury.”

Curran v. Philadelphia Newspapers, Inc., 497 Pa. 163, 183, 439 A.2d 652, 662 (1981), quoting, 2 Goodrich Amram 2d § 1035(b): 4 at 434-435. In Curran, the court reiterated the rule set forth in Nanty-Glo Borough v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932), as it applies to summary judgments. Consequently, we cannot accept ap-pellee’s assertions as being true, and accordingly, the question of whether appellee exercised due care must be submitted to a jury.

In accordance with this finding, the order of the lower court granting summary judgment is vacated, and the case remanded.

Vacated and Remanded. Jurisdiction is not retained.

      . The appellants alleged, inter alia:

      3. The Defendant on or about June 5, 1981, wrongfully kept a certain dog, which she permitted to go at large in Old Lycoming Township, Lycoming County, Pennsylvania.
      4. The Defendant then knew that the said dog was of a ferocious, vicious and mischievous nature and used and accustomed to attack and bite mankind.
      5. On June 5, 1981, the said dog, so kept by the Defendant, attacked Plaintiff who was lawfully riding a bicycle on the public right of way in front of Defendant's residence and caused Plaintiff, Marie Skowronski, to fall from her bicycle greatly hurting and wounding the right leg of the Plaintiff, Marie Skowronski.

      . Act of December 22, 1965, P.L. 1124, art. 1, § 101 et seq., 3 P.S. § 460-702, repealed and reenacted, Act of December 7, 1982, P.L. 784, No. 225, art. III, § 101 et seq., 3 P.S. § 459-305.
      It shall be unlawful for the owner or keeper of any dog to fail to keep at all times such dog either (1) confined within the premises of the owner, or (2) firmly secured by means of a collar and chain or other device so that it cannot stray beyond the premises on which it is secured, or (3) under the reasonable control of some person, or when engaged in lawful hunting or field training accompanied by an owner or handler.

      . We note here that violation of Section 703 of the Dog Law establishes negligence per se; however, it is not the only manner in which a prospective plaintiff can establish the negligence of a dog owner when that plaintiff suffers injuries from a dog. "Violation of a statute may be negligence per se and liability may be grounded on such negligence if, but only if, such such negligence is the proximate and efficient cause of the accident in question." Kaplan v. Philadelphia Transportation Company, 404 Pa. 147, 149, 171 A.2d 166 (1961). However, a party may rely on common law principles of negligence in addition to statutory violations in order to establish liability. See also, Majors v. Brodhead Hotel, 416 Pa. 265, 205 A.2d 873 (1965).
      We point this out only to clarify that we read appellants’ complaint as one alleging general negligence on the part of the appellee, not as one relying solely on violation of Section 702 of the Dog Law as implied in the opinion of the Lower Court.


author: JOHNSON, Judge:

text:
    478 A.2d 1366
    COMMONWEALTH of Pennsylvania v. Roger J. KAY, D.O., Appellant.
    Superior Court of Pennsylvania.
    Argued April 12, 1984.
    Filed July 20, 1984.
    Petition for Allowance of Appeal Denied Nov. 19, 1984.

      David Jones, Pittsburgh, for appellant.
    Shad Connelly, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before ROWLEY, JOHNSON and POPOVICH, JJ.
   JOHNSON, Judge:

Appellant Roger Kay, an osteopathic physician, was charged with criminal solicitation to commit murder and criminal conspiracy based upon his role in an attempt to have murdered another local physician at the hospital where the appellant was employed. Appellant had arranged with another associate at the hospital for a Tony Magliano to carry out the “contract killing”. On October 30, 1981, the date of appellant’s arrest, he was informed that Tony Magli-ano was in reality an FBI undercover agent, who was later identified as agent Wayne Manis. A number of personal contacts and phone conversations between the appellant and “Tony Magliano” were the subject of electronic surveillance and had been recorded.

The matter was initially scheduled for trial in March of 1982 in the Erie County Court of Common Pleas, but it was continued at the request of appellant’s trial counsel. Before the trial was rescheduled, the appellant entered a guilty plea to the solicitation charge on May 3, 1982. Sentencing was postponed throughout 1982, and the initial sentencing judge recused himself on February 25, 1983.

Appellant’s trial counsel withdrew from the case at appellant’s request. Appellant’s present counsel filed a petition to withdraw the guilty plea on March 18, 1983, three days prior to the scheduled sentencing hearing. At the hearing on March 21, 1983, the trial court judge denied appellant’s motion to withdraw his guilty plea and sentenced the appellant to a four to ten year term of imprisonment. Appellant’s counsel then filed on March 30, 1983 a post-sentence motion to withdraw the guilty plea and a motion to modify sentence. These motions were denied by the trial judge on March 31, 1983. The present appeal follows the denial of appellant’s motions to withdraw the guilty plea and to reduce the sentence.

The appellant presents four arguments for our review. First, he contends the trial court erred in not allowing him to withdraw his guilty plea prior to sentencing because he did not enter it knowingly and intelligently and because there is inadequate record evidence to indicate he did. A pre-sentence motion to withdraw a guilty plea will be liberally allowed if the appellant demonstrates “fair and just” reason for the withdrawal, unless the prosecution has suffered substantial prejudice by its reliance on the guilty plea. Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973); Commonwealth v. Campbell, 309 Pa.Super. 214, 455 A.2d 126 (1983).

What plea to enter must be a decision by the accused which is voluntarily and intelligently made. Commonwealth v. Forbes, supra. Pa.R.Crim.P. 319 outlines a procedure to be followed that will assure the guilty plea is voluntarily tendered. No more than the inquiries outlined in Pa.R.Crim.P. 319 is required. Commonwealth v. Anthony, 504 Pa. 551, 475 A.2d 1303 (1984).

Our review of the guilty plea proceedings that occurred on May 3, 1982 convinces us that the record completely refutes appellant’s allegations. This proceeding more than adequately met the requirements of Pa.R.Crim.P. 319. All that preceded the entry of appellant’s plea fully apprised him of the nature of the charges and the rights available to him. Nothing in the record indicates the appellant entered his guilty plea unknowingly or involuntarily.

The appellant contends the record is inadequate because the prosecutor and not the trial judge questioned the appellant. Both Pa.R.Crim.P. 319 and the case law clearly state that the examination of the pleading party need not be performed by the court alone. Either counsel may conduct part or all of the examination. The essential element is recording that the pleading party is aware of the ramifications of his pleading posture; the law permits counsel to take part in this documentation. See Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974). Therefore, appellant’s attack on the record’s adequacy is without merit.

Relatedly, appellant’s' second claim is the trial court should have allowed him to withdraw his guilty plea because he was not fully apprised of all the defenses he may have asserted. This court has recognized that an assertion of innocence constitutes a fair and just reason for permitting the withdrawal of a guilty plea. Commonwealth v. Whittall, 304 Pa.Super. 258, 450 A.2d 669 (1982). However, as the trial judge recognized in refusing appellant's guilty plea withdrawal, the appellant has never, not even implicitly, asserted his innocence. (N.T. March 21, 1983 at 129.) The contention that he now has a possible defense does not amount to an assertion of innocence, and, thus, appellant offers no “fair and just” reason why he should be allowed to withdraw his guilty plea. Commonwealth v. Dorian, 314 Pa.Super. 244, 460 A.2d 1121 (1983).

Third, appellant claims his guilty plea was not voluntary due to the ineffectiveness of trial counsel. “It is well settled that ‘[w]hen confronted with a claim of ineffective assistance of counsel, we must first ascertain whether the issue underlying the charge of ineffectiveness is of arguable merit, and if so, it must be determined whether the course chosen by counsel had some reasonable basis to effectuate his client’s interests.’ ” Commonwealth v. Lew is, 314 Pa.Super. 298, 303, 460 A.2d 1149, 1151 (1983) (citations omitted). See also, Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980).

Appellant claims trial counsel was ineffective for failing to suppress electronically recorded testimony between himself and undercover agent Manis. This purported failing on trial counsel’s part allegedly duped the appellant into pleading guilty. Trial counsel testified that one of the reasons he did not attempt to suppress this information was based upon his knowledge that the relevant Pennsylvania statute permits an undercover agent to lawfully record conversations to which he is a party. (N.T. March 21, 1983 at 96.)

The Pennsylvania Wiretapping and Electronic Surveillance Control Act provides in 18 Pa.C.S. § 5704(2)(i):

Exceptions to prohibition on interception and disclosure of communications
It shall not be unlawful under this chapter for:
(2) Any investigative or law enforcement officer or any person acting at the direction or request of an investigative or law enforcement officer to intercept a wire or oral communication involving suspected criminal activities where:
(i) such officer or person is a party to the communication;

Therefore, trial counsel’s decision that a suppression motion would not be successful has a clear basis in the law. Consequently, since appellant’s claim has no merit, the trial attorney’s posture on this issue was not ineffective counsel.

Fourth, appellant claims the trial court abused its discretion by refusing to permit the appellant during sentencing the opportunity to call witnesses to testify on his own behalf and by imposing a prison sentence upon impermissible considerations. Regarding the first aspect of this claim, the defense counsel at the beginning of the March 21, 1983 hearing expressly stated he was prepared to proceed with sentencing at the conclusion of the trial court’s consideration of appellant’s motion to withdraw the guilty plea. At no time during the sentencing proceedings did appellant’s counsel indicate he was unprepared, due to the unavailability of witnesses or otherwise, to continue. Therefore, we find this contention to be meritless.

“The imposition of sentence is a matter vested in the sound discretion of the sentencing judge, whose determination will not be disturbed on appeal absent a manifest abuse of discretion____ If the sentence is within statutory limits there is no abuse of discretion unless the sentence is so manifestly excessive as to inflict too severe a punishment.”

Commonwealth v. Russell, 313 Pa.Super. 534, 460 A.2d 316 (1983) (citation omitted).

Upon reviewing the sentencing record, it is clear appellant’s claim that the sentence was based upon impermissible considerations is totally without merit. Nothing in the record indicates the trial judge sentenced the appellant to an excessive sentence based upon an impermissible consideration.

For the foregoing reasons, the trial court’s March 21, 1983 judgment of sentence and the March 31, 1983 orders denying withdrawal of the guilty plea and denying the reduction of sentence are affirmed.

      . 18 Pa.C.S. § 902.

      . Id. § 903.

      . Appellant's trial counsel testified at the guilty plea withdrawal hearing that he did discuss with the appellant the merits of any defense. Because appellant’s claim does not present an acceptable basis on which to withdraw his guilty plea, the trial court did not have to resolve this credibility question.
      Furthermore, since appellant has not met the initial "fair and just" criteria of Forbes, we do not have to determine whether the Commonwealth has been substantially prejudiced by its reliance on the guilty plea. However, we do note there is uncontested testimony in the record that the Commonwealth would have substantial administrative and logistics problems, based upon its reliance on the guilty plea, if it were now- required to present its case. (N.T. March 21, 1983 at 114-119.)


text:
    478 A.2d 1370
    Stanley R. SKLADANEK v. Pauline A. SKLADANEK, Appellant.
    Superior Court of Pennsylvania.
    Argued April 11, 1984.
    Filed July 20, 1984.

      Herman M. Rodgers, Sharon, for appellant.
    Peter C. Acker, Sharon, for appellee.
    Before ROWLEY, JOHNSON and POPOVICH, JJ.
   JOHNSON, Judge:

On December 7, 1981 Appellant, Pauline A. Skladanek, and Appellee, Stanley R. Skladanek, were granted a divorce in a bifurcated proceeding. Prior to the divorce both parties signed affidavits of consent which provided in paragraph 5 that “at anytime, prior to the expiration of one (1) year from and after the entry of a Final Decree in Divorce, either party to this action shall have the right to litigate a claim for alimony, equitable distribution of marital property and for any other right or claim cognizable under the Divorce Code.” (Appellant’s Affidavit of Consent filed 12/7/81)

At the time the divorce was granted both parties had already responded to written interrogatories seeking personal financial information. Less than three months later on March 3, 1982 Appellant filed with the trial court a document entitled “Financial Statement of Assets and Debts of Pauline Skladanek.” The obvious purpose of the filing of this document was to provide the court with information to assist it in the permanent alimony and equitable distribution phases of the case.

Thereafter on March 5, 1982 Appellant filed a Notice of Taking Deposition of Samuel Messina, the Personnel Practices Supervisor for Appellee’s employer, Westinghouse Electric Corporation. The deposition, originally scheduled for April 8, 1982, was changed to April 6, 1982 for the convenience of counsel. Mr. Messina appeared for the deposition on April 6, 1982 but no testimony was taken. Apparently Appellee’s counsel objected to the taking of the deposition because leave of court had not been obtained to take the deposition and because the deponent, Mr. Messina, did not have the express authorization of Appellee to testify as to matters at that deposition. (N.T. 1/31/83 at 4) A short time later the proper authorization form signed by Appellee was delivered to Appellant’s counsel. (N.T., 1/31/83 at 5)

On January 5, 1983 Appellant filed a Motion for Hearing with the trial court asking the court to set a date “for a hearing on the question of permanent alimony and equitable distribution.” A hearing on the motion was scheduled for January 31, 1983. At that hearing counsel for Appellee objected, arguing that further action in the case was barred by the Appellant’s affidavit of consent. (N.T., 1/31/83 at 1-2)

The trial court on May 19, 1983 refused the motion for a hearing on the question of permanent alimony and equitable distribution based on its belief that Appellant took no action within one year from the divorce decree to litigate her claim concerning alimony and equitable distribution. Because we disagree with the trial court’s conclusion, we reverse and remand for a hearing on the alimony and equitable distribution questions.

The sole issue before this court is whether the action taken by Appellant during the one year period following the issuance of the final divorce decree on December 7, 1981 can be considered “litigation” so as to toll the parties’ agreed upon period of limitation. In reviewing this issue, we are mindful that one of the stated purposes of the Divorce Code (Act of April 2, 1980, P.L. 63, No. 26, § 101 et seq.; 23 P.S. § 101 et seq.) is to “[ejffectuate economic justice between parties who are divorced or separated and grant or withhold alimony according to the actual need and ability to pay of the parties and insure a fair and just determination of their property rights”. 23 P.S. § 102(a)(6). Black’s Law Dictionary (5th ed. 1979) defines “litigation” as “[a] lawsuit. Legal action, including all proceedings therein. Contest in a court of law for the purpose of enforcing a right or seeking a remedy. A judicial contest, a judicial controversy, a suit at law.”

When the affidavits of consent had been executed by the parties, this case had already been a “judicial controversy” and a “suit at law”. What then was required by the parties to demonstrate further action to litigate the questions of alimony and equitable distribution? We believe that the filing of any documents or pleadings with the court for the purpose of attaining permanent alimony or equitable distribution would evidence further action to litigate in this case.

Instantly two such documents were filed within one year of the divorce decree; the Financial Statement of Assets and Debts of Pauline Skladanek on March 3, 1982 and the Notice of Taking Deposition of Samuel Messina on March 25, 1982. Both these documents represent preliminary steps taken by Appellant to secure alimony and for equitable distribution and the filing of each of these documents must be considered part of the instant proceeding under the Divorce Code. (23 P.S. § 101 et seq.) The Financial Statement of Assets and Debts of Pauline Skladanek showing absolutely no financial assets and a single debt of $1,500 would surely support her claim for permanent alimony under Section 501 of the Divorce Code (23 P.S. § 501) and could also be useful in Appellant’s attempt to secure the equitable distribution of marital property under Section 401 (23 P.S. § 401).

The Notice of Taking Deposition, which complied in every respect with Pa.R.C.P. 4007.2, was also a preliminary step in Appellant’s quest for equitable distribution. By scheduling the deposition of a personnel officer of Appellee’s employer, counsel for Appellant was attempting to obtain certain financial information regarding Appellee’s compensation and retirement benefits. The trial court, in its opinion, indicated that had the scheduled deposition of Samuel Messina been held, “that would have been enough under paragraph 5 [of Appellant’s consent affidavit] to amount to litigating the claim”. (Opinion, 5/19/83 at 4) The trial court instead found the taking of the deposition of Samuel Messina was abandoned and that the abortive effort accomplished nothing. (Opinion, 5/19/83 at 5). While we agree that the Appellant abandoned attempts to depose Mr. Messi-na, it does not necessarily follow that Appellant intended to abandon her claim for permanent alimony or equitable distribution. Although the record is silent on this point, the deposition of Mr. Messina may not have been necessary once Mr. Messina received authorization to release information pertinent to Appellee. We cannot agree with the trial court’s conclusion that the scheduled deposition accomplished nothing.

Appellant continued to litigate her claim for permanent alimony and/or equitable distribution during the one year period following the divorce decree. Paragraph 5 of Appellant’s consent affidavit is not a bar to continued litigation. We reverse and remand for proceedings consistent with this opinion. Jurisdiction is relinquished.

POPOVICH, J., noted his dissent.


author: CERCONE, Judge:

text:
    478 A.2d 1372
    Andrew HEFFNER, A Minor by Mary HEFFNER, his Parent and Natural Guardian and Mary Susan Heffner, in her own right, Appellants, v. Robert G. SCHAD.
    Superior Court of Pennsylvania.
    Argued Nov. 22, 1983.
    Filed July 20, 1984.
    Petition for Allowance of Appeal Denied Nov. 26, 1984.

      Francis X. Nolan, Norristown, for appellants.
    Richard K. Masterson, Philadelphia, for appellee.
    Before MONTEMURO, WATKINS and CERCONE, JJ.
   CERCONE, Judge:

Plaintiffs-appellants, Andrew Heffner and his mother, Mary Susan Heffner, appeal the trial court’s denial of their motions for judgment N.O.V. and for a new trial which followed a jury verdict in favor of defendant, Robert G. Schad, appellee herein. Appellants, alleging that appellee’s behavior in striking Andrew Heffner with his car, was negligent, contend that the court should have directed a verdict in their favor. Alternatively, they argue that they should be granted a new trial because of various alleged court errors. We have considered appellants’ allegations in light of the record and the applicable law and conclude that the judgment entered by the trial court shall stand.

At a few minutes before 8 a.m. on January 6, 1976, young Andrew Heffner, six and one-half years old, left his home at Glenside Avenue and Hewitt Road in Wyncote, Montgomery County, to catch a school bus across heavily traveled Glen-side Avenue. It was a sunny morning and other school children were waiting at the location where the bus was expected. Andrew waited for between five and ten minutes on the corner before he éntered the street at the call of one of the other children.

Mrs. Heffner was watching Andrew from a front bedroom of their home. She testified at trial that she saw her son start out from the curb, that he “kind of loped out.” A fourteen year old safety guard at the time of the accident, who was waiting on the corner across the street with the other children, testified that Andrew “ran out in the street.” She stated that she first saw appellee’s car “before Andy started to come across the street” when it was “about fifty feet” away. Mrs. Heffner opined that appellee’s car was traveling thirty to thirty-five miles per hour, in the twenty-five miles per hour zone, but that he was going no faster than the other traffic that morning.

Appellee testified that except for a narrow strip of visibility ahead in his eastbound lane, the sun was so brilliant that it blinded his vision. In addition, his testimony was that there were two cars in front of him and one or more cars behind him. He stated that he slowed down, but he was unable to stop because of the traffic. At the intersection of Glenside Avenue and Hewitt Road, appellee saw a shadow appear in the left portion of his windshield; he applied his brakes, but struck Andrew, sending him into the air and about fifty feet down the Avenue. Andrew suffered a fractured right femur as a result of the accident.

On a motion for directed verdict, the facts must be considered in the light most favorable to the party against whom the motion is made and the court must accept as true all the evidence which supports that party’s contention and must reject all the adverse testimony of the party seeking a directed verdict. Litman v. Peoples Natural Gas Co., 303 Pa. Superior Ct. 345, 449 A.2d 720 (1982). Moreover, in our review of the refusal of a new trial, we will not reverse the trial court’s action absent an abuse of discretion or error of law which controlled the outcome of the case. Eldridge v. Melcher, 226 Pa. Superior Ct. 381, 313 A.2d 750 (1973). Judgment N.O.V. is inappropriate if the evidence on a material point presented an issue of fact for decision by the jury. Id.

Appellants contend that the verdict should have been directed in their favor for the following reasons: appellee drove his car 270 feet at 30-35 mph in a 25 mph area where he knew children waited for their school buses; he never saw Andrew prior to impact; he admitted that the sun impaired his vision to some extent; the point of impact was between the front center and the left front headlights; and appellee did not lower his sun visor. Appellants characterize these facts as convicting appellee of negligence as a matter of law.

To establish a motorist’s negligence in striking a child in a roadway, evidence must establish that the child was on the highway and visible to the motorist for a sufficient period of time to give the motorist reasonable opportunity to see him and to avoid the accident. Zernell v. Miley, 417 Pa. 17, 208 A.2d 264 (1965). The record contains facts to support the conclusion of the jurors that appellee could not avoid the accident. This fact precludes a directed verdict. Eldridge v. Melcher, supra.

Appellants’ issues regarding the motion for new trial will be considered seriatim. Their argument as to the court’s alleged refusal to charge on the higher duty of care required of a motorist approaching an intersection or an area frequented by children is refuted by the record. The court did so charge. Thus, it is without merit.

Appellants ascribe error to the court’s refusal to apply the “assured clear distance rule” as a matter of law. The relevant rule is found in the Vehicle Code, 75 Pa.C.S.A. § 3361:

Driving vehicle at safe speed

No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead. Consistent with the foregoing, every person shall drive at a safe and appropriate speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.

1976, June 17, P.L. 162, No. 81, § 1, eff. July 1, 1977. Appellants argue that because appellee’s visibility was partially blocked by sunlight, that his continuing to drive some 270 feet, albeit at a reduced rate, was negligence. However, with regard to temporary blindness caused by lights of another vehicle or sunlight, our court had held that

[W]here a motorist is temporarily blinded by headlights of a vehicle parked in an opposite traffic lane, the failure of the motorist to stop within the assured clear distance ahead may be excused.
Miller v. Duffee, 165 Pa. Superior Ct. 64, 67 A.2d 809 (1949).

and

[a] driver may be excused from the rule where temporarily blinded by oncoming lights which tend to obscure the existence of an obstacle.

Farley v. Ventresco, 307 Pa. 441, 161 A. 534 (1932). Moreover, a driver is not bound to stop merely because he is “blinded” by the headlights of an approaching vehicle. McElroy v. Rozzi, 194 Pa. Superior Ct. 184, 166 A.2d 331 (1960); Boor v. Schreiber, 152 Pa. Superior Ct. 458, 33 A.2d 648 (1943). Applying these interpretations of the assured clear distance ahead rule to the instant evidence as elicited at trial, the court properly instructed the jury that it was for them to decide whether appellee was negligent or not. This is so especially in light of appellee’s testimony that he could see ahead into his lane, but that his peripheral vision was impaired by the sun. Given the testimony as to traffic behind him and the sudden appearance of the minor plaintiff, then, it was for the jury to decide whether his continuing to drive was negligent. This was not a situation in which the assured clear distance ahead rule should have been applied as a matter of law, as appellants contend.

Appellants argue that the trial court erred in permitting counsel for appellee to use Mrs. Heffner’s deposition testimony on his cross-examination of her as to the speed at which she thought appellee was driving. At trial she estimated it to be thirty or thirty-five miles per hour in a twenty-five mile per hour zone. Because it was brought out on cross-examination that her deposition testimony was that he was driving “at the normal flow of traffic,” appellants urge that this use of her deposition was prejudicial. Appellants contend that the jury could have concluded that it was not negligent for appellee to have driven five to ten miles over the speed limit, given her use of the word “normal”. We fail to see the harm in this situation as the jury could equally have concluded that during the deposition, Mrs. Heffner characterized his driving as “normal,” while she was unwilling to do so at trial; thus, an inconsistency was apparent. Moreover, appellants’ counsel himself referred to appellee’s speed as the same as that of the other cars.

Appellants also argue that it was error for the court not to require counsel for appellee to quote from Mrs. Heffner’s deposition in toto, which fact, appellants contend, distorted her testimony about whether she talked to the police about the accident. Appellants urge us to find that Pa.R.C.P. 4020(a)(4) was violated. While it is true that it would have been preferable for the trial court to require counsel for appellee to quote the entire portion, it did rule that counsel for appellants could do so on rebuttal. Within one page of the notes of testimony, this was accomplished. We feel that the jury was afforded the context of the questioned portion such that no prejudice inured to appellants.

Finally, appellants sought to amend their complaint on April 11, 1980, to add a cause of action for negligent infliction of emotional distress on the part of the minor plaintiffs mother, Mrs. Heffner, despite the running of the statute of limitations. In this appeal, appellants’ requested remedy regarding this issue is the inclusion of the cause of action should we decide to grant a new trial. As we are affirming the judgment entered below, we decline to address the merits of this issue.

Judgment of the trial court affirmed.

      . If only part of a deposition is offered in evidence by a party any other party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.


author: HESTER, Judge:

text:
    478 A.2d 1376
    Robert W. KROCK, Administrator of the Estate of Donald F. Krock, Deceased, Appellant, v. Robert Stephen CHROUST and Carl R. Hamm.
    Superior Court of Pennsylvania.
    Argued Jan. 19, 1984.
    Filed July 20, 1984.
    Petition for Allowance of Appeal Denied Dec. 3, 1984.

      Thomas Martin, Philadelphia, for appellant.
    Michael P. Shay, Bethlehem, for appellees.
    Before ROWLEY, HESTER and ROBERTS, JJ.
   HESTER, Judge:

This appeal raises the novel issue of whether a jury verdict on a survival action should be reduced by $15,000.00, the maximum work loss benefits recoverable under the No-fault Motor Vehicle Insurance Act. We hold that the lower court improperly granted appellee’s motion to mold the verdict, and we hereby reinstate the original verdict of $100,000.00.

Appellant’s decedent was involved in an automobile accident on September 24, 1975, and died from his injuries twelve days later. Appellant thereafter filed a complaint in trespass alleging a survival cause of action and a wrongful death cause of action. The case was tried by a jury on January 12, 1981 through January 16, 1981. A verdict was rendered in favor of appellant and against appellee Robert Chroust in the amount of $45,000.00 on the wrongful death action and in the amount of $100,000.00 on the survival action.

Appellee filed a motion to mold the verdict, requesting that the award in the survival action be reduced by $15,-000.00. The lower court granted the motion and decreased the verdict accordingly. This appeal followed.

Appellant asserts that decedent’s estate did not receive the work loss benefits which were deducted from the verdict due to the fact that such benefits were not available to decedents’ estates in 1975. Furthermore, appellant argues that it is impossible to ascertain from the general verdict whether damages were attributable to work loss or whether it solely compensated the decedent for pain and suffering he endured prior to death. For the above reasons, appellant contends that the trial court erred in molding the verdict.

The No-fault Act created a comprehensive system of compensation for persons who sustain losses resulting from the maintenance or use of a motor vehicle. Certain benefits are available to “any victim or any survivor of a deceased victim of an automobile accident.” One type of “basic loss” compensated by the. No-fault Act is “work loss,” which is defined as:

(A) loss of gross income of a victim, as calculated pursuant to the provisions of section 205 of this Act; and
(B) reasonable expenses of a victim for hiring a substitute to perform self-employment services, thereby mitigating loss of income, or for hiring special help, thereby enabling a victim to work and mitigate loss of income.

40 P.S. § 1009.103. Appellant asserts that, at the time of the accident, the above language was traditionally interpreted to limit recovery of work loss benefits to those victims who survived their injuries.

In 1980, the Pennsylvania Supreme Court decided Allstate Insurance Co. v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980), wherein, for the first time, a survivor of a deceased victim was permitted to recover work loss benefits. In so ruling, that court reasoned “[t]he recovery of work loss benefits by survivors of deceased victims best fulfills the legislature’s express intention to provide ‘compensation of the economic losses of the survivors of all individuals killed in motor vehicle accidents’ by providing ‘adequate basic loss benefits [to] ... the survivors of deceased victims.’ ” (footnote omitted) Id., 491 Pa. at 460, 421 A.2d at 636.

The above holding was thereafter construed by this Court as deciding an issue of statutory construction not previously announced by an appellate court. See Daniels v. State Farm Mutual Automobile Ins. Co., 283 Pa.Super. 336, 423 A.2d 1284 (1980). As such, that interpretation of legislative intent was to be regarded as embodied within the statute from its enactment. Thus, the Heffner decision was not viewed as changing the law or as creating a new right to work loss benefit. Sachritz v. Pennsylvania Nat. Mut. Cas. Ins. Co., 293 Pa.Super. 483, 439 A.2d 678 (1981), aff’d. 500 Pa. 167, 455 A.2d 101 (1982). Therefore, at the time of the accident which claimed the decedent’s life, work loss benefits were not limited to victims who survived their injuries.

Appellant argues nevertheless that the Heffner case, while permitting payment of work loss benefits to “survivors” of a deceased victim, did not permit recovery by an estate of a deceased victim, which is not a survivor within the meaning of the No-fault Act. Accordingly, he contends that work loss benefits would not have been available to his decedent’s estate even after the Heffner decision.

While it is true that Heffner did not address the availability of work loss benefits to a decedent’s estate, that issue was resolved by this Court in Freeze v. Donegal Mutual Insurance Co., 301 Pa.Super. 344, 447 A.2d 999 (1982) (Hester, J. dissenting), aff’d. 504 Pa. 218, 470 A.2d 958 (1983). Therein, the administrator of a deceased eleven-year-old’s estate sought to recover work loss benefits. We held that the estate of a deceased victim was permitted to recover work loss benefits under the No-fault Act. In affirming our decision, the Supreme Court pertinently observed:

In Heffner ... [w]e' held that “survivors” of deceased victims are entitled to payment of these benefits under the terms of the No-fault Act. It follows then that, if work loss benefits do not terminate upon the death of a deceased victim, absent a statutory bar, those benefits are recoverable by the deceased victim’s estate. This is the natural, logical and compelling extension of our holding in Heffner.

Id., 504 Pa. at 222, 470 A.2d at 960. Just as Heffner was given retroactive application, so too must Freeze be applied. Thus, work loss benefits were available to appellant as representative of his decedent’s estate.

Although there is no indication on the record as to whether appellant actually received those benefits, that fact is not determinative of the issue before us. Appellant had a right to recover such benefits; his failure to do so does not entitle him to seek recovery from the tortfeasor. To permit a plaintiff to maintain a cause of action for the first $15,000.00 of work loss simply because the plaintiff has not recovered that work loss from a no-fault insurance carrier would violate § 301, which abolished a cause of action in tort for the first $15,000.00 of lost earnings. A plaintiff cannot choose to forego collection of his basic loss benefits and then attempt to hold the tortfeasor liable for those economic losses otherwise recoverable.

Nonetheless, for the reasons that follow, we cannot permit the verdict to be reduced by that amount.

Although the promulgation of the No-fault Act effectively abolished tort liability for injuries arising from the maintenance or use of a motor vehicle, it did not abrogate a survival cause of action. When an accident results in death, a survival cause of action remains viable by the decedent’s estate for damages for non-economic detriment. 40 P.S. § 1009.301(a)(5). In addition to the damages recoverable for non-economic loss, the plaintiff’s estate may seek to recover those economic losses which remain uncompensated by the No-fault Act. 40 P.S. § 1009.301(a)(6).

The measure of damages in survival actions is “the decedent’s pain and suffering and loss of gross earning power from the date of injury until death, and the loss of his earning power, less personal maintenance expenses, from the time of death through his estimated working life-span.” Slaseman v. Myers, 309 Pa.Super. 537, 545, 455 A.2d 1213, 1217-8 (1983). See also Heffner v. Allstate Ins. Co., supra, and cases cited therein. Therefore, loss of earnings greater than the $15,000.00 compensated by work loss benefits is an appropriate element of damages in a survival action.

Herein, appellant clearly sought to recover both economic and non-economic loss. Appellant introduced evidence reflecting a economic loss to decedent’s estate in the sum of $572,140.00. In addition, testimony was elicited from witnesses detailing the pain and suffering endured by the decedent subsequent to the accident which ultimately claimed his life.

It is clear from the record that appellant sought to recover all wage loss sustained by the estate, including the amount which properly should have been recovered from the no-fault insurance carrier. As discussed above, this he had no right to do. However, it is equally unclear from the record exactly what losses the verdict was intended to compensate. The award was not itemized to reflect its component parts; consequently, we have no indication as to what the verdict comprised. It is possible, although unlikely, that the jury intended to compensate appellant for non-economic detriment alone. If so, then to reduce the award for available work loss would be unjust.

In light of the complete lack of information about the intent of the jury, it was error for the trial court to grant appellee’s motion to mold the verdict. It is beyond peradventure that the trial judge has the power to mold a jury’s verdict. Fish v. Gosnell, 316 Pa.Super. 565, 463 A.2d 1042 (1983); Ferrick Excavating & Grading v. Senger Trucking Co., 315 Pa.Super. 69, 461 A.2d 800 (1983). However, the verdict to be molded must manifest a clear intent on the part of the jury. Where the intention of the jury is far from obvious, the verdict should be returned to the jury for further deliberations or a new trial should be granted. House of Pasta, Inc. v. Mayo, 303 Pa.Super. 298, 307, 449 A.2d 697, 701 (1982). “The power to mold or more precisely amend a jury’s verdict is merely a power to ‘make the record accord with the facts, or to cause the verdict to speak the truth.’ ” Id. quoting Standard Pennsylvania Practice. (Rev.Ed.) Ch. 27, § 72. If the trial judge must assume facts which cannot be discerned from the verdict, then the verdict should not be molded. May v. Pittsburgh Railways Co., 209 Pa.Super. 126, 129, 224 A.2d 770, 772 (1966).

By molding the verdict to accommodate the maximum work loss benefits available pursuant to the No-fault Act, the trial judge assumed that (1) the jury intended to compensate appellant for economic detriment, and (2) the jury awarded at least $15,000 in that regard. Neither of these assumptions can be legitimately surmised from a general verdict.

Appellee could have easily received the answers which the trial judge was forced to presume by submitting points for charge requesting that the jury return special findings. If special findings would add to a logical and reasonable understanding of the issue, it is within the discretion of the trial judge to grant such a request. See Willinger v. Mercy Catholic Medical Center, 482 Pa. 441, 445-446 n. 4, 393 A.2d 1188, 1190 n. 4 (1978); Walsh v. Pennsylvania Gas & Water Co., 303 Pa.Super. 52, 449 A.2d 573 (1982).

Herein, the attorneys for the parties and the trial judge discussed the work loss issue in the pre-trial conference; however, no agreement was included in the record, nor were special interrogatories submitted to the jury to ascertain the meaning of its verdict. By failing to raise this issue either through appropriate points for charge or objections voiced prior to the discharge of the jury, appellee waived his right to seek a cure to an inflated verdict through a motion to mold. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); Lutz v. City of Scranton, 140 Pa.Super. 139, 13 A.2d 121 (1940). Consequently, the exercise of the trial court’s power to mold the verdict was inappropriate, and must be set aside.

We therefore vacate the amended verdict of $85,000.00 and reinstate the original verdict of $100,000.00.

      . 40 P.S. § 1009.101 et seq. (hereinafter No-fault Act).

      . A verdict was returned in favor of defendant Carl Hamm, who is not involved in the instant appeal.

      . Appellee also petitioned for and received a $5,000.00 reduction in the wrongful death award. The No-fault Act provided for a limitation on recovery of survivor’s loss in the sum of $5,000.00. 40 P.S. § 1009.202. Appellant had claimed and was awarded monetary damages of $45,000.00 under the Wrongful Death Act, 42 Pa.C.S.A. § 8301, for the pecuniary losses sustained as a result of the decedent’s death. He does not now dispute the $5,000.00 reduction, conceding that appellee could only be found liable for loss which was not compensated under the No-fault Act.

      . 40 P.S. § 1009.201(a).

      . A "survivor” is defined as a
      (A) Spouse; or
      (B) Child, parent, brother, sister or relative dependent upon the deceased for support.
      40 P.S. § 1009.103.


author: PER CURIAM:

text:
    478 A.2d 1381
    NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant, v. Douglas DiTOMO.
    Superior Court of Pennsylvania.
    Argued June 15, 1983.
    Filed July 20, 1984.

      Edward J. Carney, Jr., Upper Darby, for appellant.
    Jeffrey M. Azpell, Media, for appellee.
    Before CERCONE, President Judge, and McEWEN and MONTEMURO, JJ.
   PER CURIAM:

This is an appeal from an Order granting summary judgment in favor of appellee-defendant, Douglas DiTomo, and denying appellant plaintiff, Nationwide Mutual Insurance Company’s cross-motion for summary judgment.

DiTomo, while operating his motorcycle was involved in an accident with an automobile driven by Sylvester Anderson. Anderson was insured by Government Employees Insurance Company (GEICO). Pursuant to its policy with Anderson, GEICO paid its policy limits of $20,000 to DiTo-mo. Subsequently, DiTomo, made claim against Nationwide, his parents’ insurer, for uninsured motorists benefits. This claim proceeded to common law arbitration and resulted in an award of $30,000 in favor of DiTomo.

Nationwide petitioned the Court of Common Pleas to set aside the arbitrator’s award. The petition was denied and Nationwide filed an appeal with this court at No. 48 Philadelphia 1980. That appeal was thereafter discontinued and Nationwide paid DiTomo the $30,000 awarded. Nationwide then filed suit in assumpsit against DiTomo, seeking to exercise subrogation rights to the $20,000 that DiTomo received from GEICO. DiTomo’s answer and new matter averred that many of the allegations in the complaint were conclusions of law and that the suit was barred by res judicata, i.e. the arbitration and award. Nationwide’s reply contended, that since the Court of Common Pleas refused to renew the arbitration award, res judicata was not applicable. The parties then sought summary judgment.

The court found that Nationwide was not entitled to exercise its rights to subrogation until DiTomo had been fully compensated for his injuries. As his medical bills and lost wages were ongoing "with no end yet in view”, and the $50,000 received from the two insurers did not exceed his losses, subrogation was premature. Therefore, the court granted DiTomo’s motion for summary judgment while dismissing Nationwide’s request.

This appeal presents two problems, caused by the parties’ oversight, which neither party addresses adequately in their briefs. First, we must note that had Nationwide raised a claim, prior to arbitration, that DiTomo was not entitled to uninsured motorists benefits, as Anderson was merely underinsured, it may well have been successful. See Davis v. Government Employees Ins. Co., 500 Pa. 84, 454 A.2d 973 (1982); White v. Concord Mut. Ins. Co., 296 Pa.Superior Ct. 171, 442 A.2d 713 (1982) affirmed 500 Pa. 103, 454 A.2d 982 (1982). However, absent a prearbitration challenge, the findings of both law and fact of the arbitrators are not reviewable. Runewicz v. Keystone Ins. Co., 476 Pa. 456, 383 A.2d 189 (1978); Cargill v. Northwestern Nat. Ins. Co., 316 Pa.Superior Ct. 139, 462 A.2d 833 (1983). Hence, Nationwide, undoubtedly aware that it could not conduct a successful frontal assault upon the arbitrator’s award, decided to attempt a surprise attack from the rear arid therefore filed the subrogation action.

A second procedural hurdle which must be overcome, to appreciate this appeal, is DiTomo’s failure to move for summary judgment based upon appellant’s failure to state a cause of action upon which it could recover. Instead, he raised the defense of res judicata. The court however denied Nationwide’s request for summary judgment finding that subrogation was impermissible as DiTomo had not been fully compensated. Therefore the court granted summary judgment against the moving party on a basis not raised by the non-moving party. Such practice has been expressly recognized where there is no genuine issue of material fact and the non-moving party is clearly entitled to a judgment on the legal issue presented. Eagle Downs Racing Ass’n Inc. v. Comm., 73 Pa.Cmwlth. 155, 457 A.2d 1008 (1983); Allegheny Co. Port Auth. v. Flaherty, 6 Pa.Cmwlth. 135, 293 A.2d 152 (1972); see also Fireman’s Fund Ins. v. Nationwide Mut. Ins., 317 Pa.Superior Ct. 497, 501-502 n. 1, 464 A.2d 431, 434 n. 1 (1983); 2 Goodrich-Amram 2d, § 1035(b)(6); 2 B Anderson Pennsylvania Civil Practice, § 1034.24(b).

Having carefully reviewed the briefs, record and opinion filed in this case, we find we may dispose of this appeal on the same basis as the trial court and therefore we need not address the whole array of issues proffered by the parties. The parties are in agreement as to the factual basis of this case. We therefore may limit our review to the legal conclusions arising therefrom.

Nationwide itself refers us to Walls v. City of Pittsburgh, 292 Pa.Superior Ct. 18, 23, 436 A.2d 698, 701 (1981), where we held:

However, an insurer who has entered into an agreement such as is involved herein with an insured may be subrogated to the insured’s recovery from any person legally responsible for the insured’s injury for which the insuror [sic] has made payment under uninsured motorist coverage only upon the insuror’s [sic] showing that the sum of the insured’s recovery from the insuror [sic] and from persons legally responsible for the injury exceeds the insured’s loss. Hughes [v. State Farm Mut. Auto Ins. Co.], supra [604 F.2d 573], at 579 [ (8th Cir.1979) ]. See also White v. Nationwide Mut. Ins. Co., 361 F.2d 785 (4th Cir.1966).

(Emphasis supplied.)

Under the above holding, it would appear that the pleadings were legally insufficient, as DiTomo had not recouped all of his loses. Appellant attempts to persuade us that the current case should not be controlled by Walls, and if it is, then we should overrule Walls as being inconsistent with White v. Concord Mut., supra.

As previously referred to Davis, supra, and White v. Concord Mut., held that “underinsured” was not the legal equivalent to “uninsured”. Accordingly, a person whose No-Fault benefits proved to be inadequate could not recover Uninsured Motorists benefits. The Walls case did not address No-Fault benefits but only subrogation pertaining to Uninsured Motorist coverage. Hence on their face, Walls and White v. Concord Mut., are not inconsistent.

The conflict complained of by Nationwide was caused by the perverted development of this case stemming from Nationwide’s earlier failure to raise the “uninsured v. underinsured” question prior to arbitration. Nationwide itself insists that the only issue at hand is its right to subrogation. Nationwide can not have it both ways. On one hand it argues that res judicata did not control as this was a separate action seeking subrogation and the question of uninsured or underinsured was not pertinent. While on the other hand, Nationwide argues that Walls, dealing with such subrogation, is in disagreement with White v. Concord Mut., addressing the question of uninsured versus underin-sured. The complaint was filed in assumpsit seeking subro-gation, hence Walls is controlling.

Under the holding of Walls the complaint did not adequately state a cause of action as DiTomo had not been fully compensated therefore the court correctly granted summary judgment against Nationwide.

Order affirmed.

McEWEN, J., concurred in the result.