author: BECK, Judge: JOHNSON, Judge,

text:
    535 A.2d 634
    In re In the Interest of C.K. Appeal of C.K. and L.K. Natural Parents.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1987.
    Filed Dec. 30, 1987.

      Jack E. Reagle, Northwestern Legal Services, Coudersport, for appellants.
    Before BECK, JOHNSON and HESTER, JJ.
   BECK, Judge:

This is an appeal from the trial court’s denial of appellants’ Petition to File a Notice of Appeal Nunc Pro Tunc.

Appellants are natural parents whose parental rights were terminated by a final order of the Court of Common Pleas of Potter County entered on January 22, 1987. Appellants failed to appeal this order within the thirty day appeal period. Shortly after the expiration of the appeal period, counsel for appellants filed a Motion to File Appeal Nunc Pro Tunc in this Court. We issued a Per Curiam Order denying the Motion on March 20, 1987. Our Order stated that the Motion was denied without prejudice to appellants’ right to seek relief in the trial court and cited In Re Adoption of J.A.S., 330 Pa.Super. 151, 479 A.2d 8 (1984).

Counsel for appellants then filed a Petition to File a Notice of Appeal Nunc Pro Tunc in the trial court. The Petition stated that the reason why a timely appeal had not been filed was that appellants’ counsel’s mother had suffered a massive myocardial infarction approximately three weeks after the entry of the January 22, 1987 Order. Counsel alleged that he was required to be out of his office and at his mother’s side for two weeks thereafter, during which time the appeal period expired.

The trial court conducted a hearing on the Petition on April 14, 1987. At the hearing, counsel alleged that he did not learn of appellants’ desire to appeal from the Order until he called his office on February 26, 1987, at which time he was informed that on February 19th, appellants had called counsel’s office and told his secretary that they wished to appeal. By this time, the appeal period had already expired. Appellee, Potter County Children and Youth Services, concedes that these are the reasons for appellants’ failure to file a timely appeal.

On May 6, 1987 the trial court entered a Memorandum Opinion and Order denying appellants’ Petition. Appellants now appeal from the May 6, 1987 Order.

This case presents us with an unusual difficulty. We are often called upon to decide matters where the facts at hand are complex and difficult to fit within existing legal principles, or where the facts are straightforward but the existing law has not yet developed to the point of providing us with an answer to the issue posed. However, we are quite infrequently called upon to address a case such as this, where the facts are simple and the difficulty in resolution is the presence of too much precedent, all of which is potentially analogous, much of which is conflicting and none of which is particularly clear.

The question presented is whether, where an appeal from a trial court’s order is not timely filed because of the unexcused conduct of appellants’ counsel, an appeal nunc pro tunc should be allowed.

We find it beyond question that here, appellants’ counsel was not attendant to his professional duties. Counsel was absent from his office for a period of several weeks, knowing that if appellants wished to appeal from the termination of their parental rights, they would have to do so during counsel’s absence. Yet counsel did not provide for the clear possibility that appellants would want to appeal. He did not arrange for substitute counsel to monitor his cases. He did not notify appellants that they should seek new appellate counsel.

Realizing that counsel’s inaction resulted in appellants’ failure to appeal timely, we now turn to a close analysis of the precedents that define the circumstances under which an appeal nunc pro tunc can be . allowed. As the Supreme Court has so many times opined, the time for taking an appeal cannot be extended as a matter of mere indulgence. An extension of such time can be permitted only in those cases where there has been fraud or some breakdown in the court’s operation. West Penn Power Co. v. Goddard, 460 Pa. 551, 333 A.2d 909 (1975); Nixon v. Nixon, 329 Pa. 256, 198 A. 154 (1938).

When initially coined, this statement of the applicable standard could hardly have been clearer or more easily applied. Moreover, the restrictiveness of the standard is grounded in solid legal principles. Since the Judicial Code itself addresses the time limitation for the taking of an appeal, courts have construed the thirty-day appeal limit as a legislative determination that the finality of court adjudications must be promoted by limiting the time within which they can be questioned on appeal. See Bass v. Commonwealth, 485 Pa. 256, 266, 401 A.2d 1133, 1138 (1979) (Roberts, J., dissenting to denial of reargument); 42 Pa.Cons. StatAnn. §§ 1722, 5501(a), 5504, 5571 (1982). Indeed, appellate courts regard the time limit on appeals as constituting an actual limit on their jurisdiction. Murphy v. Brong, 321 Pa.Super. 340, 468 A.2d 509 (1983) (untimely appeals present a jurisdictional question and must be quashed); Commonwealth v. Riebow, 299 Pa.Super. 458, 445 A.2d 1219 (1982); Pa.R.App.P. 105(b) (appellate court may not enlarge time for taking of appeal).

Despite these considerations supporting the establishment and maintenance of a restrictive and clear standard for the allowance of appeals nunc pro tunc, in 1979 the Supreme Court created a new species of circumstances in which such an appeal would be allowed. In Bass v. Commonwealth, supra, counsel for appellants prepared appeal papers and apparently gave them to the secretary in his office for filing. However, the secretary, who was also in charge of monitoring the work of secretaries who might be absent from the office, became ill and did not return to work until very shortly after the appeal period had expired. A petition to appeal nunc pro tunc was then filed four days after the appeal period had expired. Id., 485 Pa. at 258, 401 A.2d at 1134. The Bass Court, while recognizing the traditional standard for appeals nunc pro tunc set forth above, nevertheless allowed the appeal. We set forth its analysis verbatim, because of its particular importance in the context of the instant case:

Appellant argues that we should equate the failure to file a timely appeal in this case as ‘in fact a negligent act of a court official.’ Appellant also argues that ‘mere inadvertence’ should not prevent appellant from access to the appellate process. It is true that in our system of law an attorney, in a sense, serves both as an advocate for his client and as an officer of the court. It has recently been recognized by statutory law that an attorney is a public officer____ We are unable to conclude, however, that the office of attorney is to be equated for all purposes with the term ‘court officer’. We cannot overlook the fact, however, that an attorney at law, chosen by a client from a limited group of people legally entitled to represent the client, is an integral part of our system of justice. To view a citizen’s attorney as a completely non-public officer would be ignoring the reality that our system of justice could not function properly and efficiently without the traditional view that an attorney not only represents a client, but is in a sense an officer of the court. Therefore, at least in those circumstances involving the non-negligent failure to file an appeal, members of the public should not lose their day in court. Without doubt the passage of any but the briefest period of time during which an appeal is not timely filed would make it most difficult to arrive at a conclusion that the failure to file was non-negligent.
Although there are some exceptions, ordinarily non-negligent conduct, although it results in injury to another is not actionable. This principle can be illustrated by assuming that an attorney, while on his way to the Prothonotary’s Office to file an appeal has an unexpected heart attack or other illness which causes him to lose control of his vehicle, and injure a bystander. The attorney (or any other person) would not be held liable____ Just as the attorney would not be held liable for damages to the bystander resulting from his non-negligent driving, his client should not suffer because the attorney, as a result of his illness, was unable to file the appeal. The example we have given is akin to the case before us.

Id., 485 Pa. at 260, 401 A.2d at 1135.

Thus, the Bass Court appeared to create a new ground for an appeal nunc pro tunc, i.e. non-negligent happenstance. Moreover, as the above-quoted language indicates, the Bass Court attempted to fit this ground within the traditional ground for the allowance of an appeal nunc pro tunc where there has been a breakdown in the operations of the court. The Court did so by viewing attorneys as officers of the court for some purposes and by analogizing an attorney’s non-negligent failure to file timely to a situation where the judicial system has broken down.

Although the Supreme Court has recently cited to Bass without discussing it, Commonwealth v. Revtai, 516 Pa. 53, 532 A.2d 1 (1987), the Court has not otherwise commented on Bass and we are, therefore, unable to determine how that Court would now construe the decision’s scope. Our intermediate appellate courts have somewhat differed in their application of Bass. While this Court has been quite restrictive in its application, Moving v. Dunne, 342 Pa.Super. 414, 493 A.2d 89 (1985) (death of appellant’s attorney does not constitute non-negligent happenstance), the Commonwealth Court has fairly frequently applied it. See, e.g., Perry v. Unemployment Comp. Bd. of Rev., 74 Pa. Commw. 388, 459 A.2d 1342 (1983) (mechanical failure of law clerk’s car is non-negligent happenstance); Walker v. Unemployment Comp. Bd. of Rev., 75 Pa.Commw. 116, 461 A.2d 346 (1983) (failure of post office to forward notice of referee’s decision is non-negligent happenstance). Recently, however, the Commonwealth Court has appeared to adopt a view of Bass which is more consistent with the restrictive view of this Court. See Guat Gnoh Ho v. Unemp. Comp. Board, 106 Pa.Commw. 154, 525 A.2d 874 (1987) (Bass line of cases are limited to unique and compelling facts presented therein).

In the instant case, there is no allegation that appellants’ failure to file their appeal timely resulted from either fraud or a breakdown in the court’s operations as traditionally defined. Thus, if we are to reverse the trial court’s refusal to grant appellants permission to file an appeal nunc pro tunc based on the precedent discussed thus far, it would appear that we must do so by finding that the circumstances of this case fall within the Bass non-negligent happenstance ground for an appeal nunc pro tunc.

In contrast, appellee argues that we need not determine the scope and applicability of Bass. Appellee argues that the decision of the Supreme Court in In re Vacation of Portion of Dorney Park Road, 503 Pa. 67, 468 A.2d 462 (1983) established that Bass is no longer to be regarded as part of the law of the Commonwealth. Thus, appellee contends that our inquiry must end when we determine that there was no fraud or breakdown in court operations as traditionally defined and that we must, therefore, affirm.

We disagree with appellee’s appraisal of the impact of Dorney Park on Bass. In Dorney Park, the Supreme Court reviewed the action of a trial court in refusing to allow appellees to file late exceptions and a petition for review of an engineer’s report filed in the Court of Common Pleas. The report was filed in support of the township commissioners’ decision to vacate a portion of a public road. The controlling statute involved was the First Class Township Code, Pa.Stat.Ann. tit. 50 § 57009. Under the Code, after the commissioners caused the filing of the engineer’s report, interested parties had the right to file exceptions to and a petition for review of the report within a set period of time. The appellees failed to file on time because their attorney had asked a court official to notify him when the report was filed so that he could file appellees’ exceptions and petition for review. Although the official agreed to do so, he did not, with the result that appellees’ filing was eleven days late. Id., 503 Pa. at 70, 468 A.2d at 463.

The Dorney Court agreed with the trial court’s decision that the appellees could not be permitted to file late because the court lacked jurisdiction to expand the statutory time for review in the absence of fraud or breakdown of court operations. In support of this conclusion, the Dorney Court cited several decisions, all of which pre-date Bass, but made no mention of Bass itself.

Because of this statement in the Dorney decision, appellee concludes that the Bass “non-negligent happenstance” ground for the late filing of an appeal no longer exists. We, on the other hand, are loath to find that the Supreme Court has sub silentio overruled one of its prior decisions without something more. We are particularly hesitant to do so here, since Dorney is a case which is both factually and legally highly distinguishable from Bass. Dorney focused on a specific statutory provision in the Township Code and involved the filing of exceptions and a petition for review from a township commissioners’ report in the Court of Common Pleas. This is a highly different scenario than that presented in Bass.

Further, even if we read Dorney to be addressing the same general issue as that presented in Bass, we cannot construe Dorney to have overruled Bass. Dorney states the standard for relief from a statutory appeal deadline as fraud or breakdown in court operations. Although at first blush this would appear to exclude the Bass non-negligent happenstance ground, as we have explained above, Bass can reasonably be construed as having merely created a new species of breakdown in court operations, i.e. non-negligent conduct by an attorney who is in some senses an officer of the court. If we construe Bass in this manner, then the Dorney Court’s statement of the applicable standard would not necessarily exclude non-negligent happenstance.

As in the case of Bass, the Supreme Court itself has never referred to Dorney. Since Dorney, however, numerous decisions of both this and the Commonwealth Court have continued to treat Bass as a viable part of our law. See, e.g., Moring, supra; Guat Gnoh Ho, supra; Commonwealth v. Smith, 348 Pa.Super. 10, 501 A.2d 273 (1985). We agree with these Courts’ conclusion that Bass retains vitality.

In making this determination, we note that we are aware of this Courts decision in In re Adoption of J.A.S., 330 Pa.Super. 151, 479 A.2d 8 (1984). As we have indicated in footnote 1 supra, in J.A.S. a natural mother attempted to appeal nunc pro tunc from a trial court order terminating her parental rights. The Superior Court reversed the trial court’s denial of permission to appeal and remanded for a hearing to ascertain the reasons for the late filing. The Court did so because the mother’s affidavit in support of her petition for permission to appeal alleged facts which, if proven, would constitute fraud or a breakdown in court operations as the reason for the late filing. Id., 330 Pa.Superior Ct. at 153, 479 at 9. The Superior Court appended a footnote to its decision stating that Dorney eliminated any further need to determine the scope of Bass ’ special exception for nonnegligent failure to file an appeal. Id., 330 Pa.Superior Ct. at 152, 479 at 9 n. 1.

As we have indicated, we disagree with this conclusion. Additionally, we note that we are not bound to follow the J.A.S. Court’s interpretation of Dorney in that it is clearly dicta. There was no allegation in J.A.S. that nonnegligent happenstance was the reason for the mother’s late filing of her appeal and, therefore, the applicability of Bass was not directly at issue. Moreover, the J.A.S. Court’s actual decision was to remand for a fact finding hearing. This was not a decision on the merits of the mother’s right to appeal nunc pro tunc. It cannot, therefore, be construed to stand for the proposition that such an appeal cannot be allowed on grounds of non-negligent happenstance.

Since we have concluded that Bass retains vitality, we now turn to an application of Bass to the case before us. We find that it offers appellants no assistance. We agree with those courts that have given Bass a narrow scope, limiting it to cases presenting unique and compelling facts justifying a late filed appeal. Consequently, we decline to extend Bass to cover a situation like the instant case. As we have stated, there is no question that appellants’ counsel did not act with the care and professionalism expected of an attorney. Unlike in Bass itself, counsel here has not presented us with any indication that the appeal filing deadline was missed despite the existence of adequate deadline monitoring procedures at counsel’s office. Indeed, here counsel was absent from his office for an extended period and yet despite this fact, he did not make any special arrangements to insure that his professional obligations would continue to be fulfilled. Under these circumstances, where there is no evidence of non-negligent happenstance, an appeal nunc pro tunc cannot be permitted on the basis of Bass.

Appellants argue that an appeal nunc pro tunc should nevertheless be allowed in the instant case on what appear to be equitable grounds. As we have previously indicated, because this case involves a termination of appellants’ parental rights, it does call upon us to be particularly sensitive to appellants’ plea. Thus, we have given careful consideration to appellants’ “equitable” argument.

In support of this argument, appellants refer us to the decision of our Supreme Court in Estate of Gasbarini v. Medical Center of Beaver County, Inc., 487 Pa. 266, 409 A.2d 343 (1979). Appellants also direct our attention to Klugman v. Gimbel Brothers, Inc., 198 Pa.Super. 268, 182 A.2d 223 (1962). Both of these cases involve issues which are not precisely the same as that presented here but which are highly analogous. They are not directly concerned with the circumstances under which an appeal nunc pro tunc can be filed. They are both directed to the circumstances under which a trial court may “open” or “vacate” its own judgment after that judgment has become final through the passage of the time for reconsideration by the trial court or appeal to an appellate court.

In Estate of Gasbarini, the trial court had entered a final order sustaining preliminary objections to appellant’s complaint. Shortly thereafter, appellant learned that her counsel had been suspended from the practice of law (and later disbarred) and had not been providing her with representation in connection with her action. In fact, counsel had never responded to the preliminary objections that were ultimately sustained against appellant. Appellant then secured new counsel and petitioned to have the judgment against her, now a year old, vacated and her complaint reinstated. The trial court granted appellant’s petition. Superior Court reversed, stating that a final judgment in a contested proceeding can only be “opened” upon a showing of extraordinary cause justifying the intervention of the court. Superior Court concluded that no such cause was shown in that case. Id., 487 Pa. at 269-70, 409 A.2d at 344-45. The Supreme Court reversed Superior Court and reinstated the trial court’s order vacating the judgment. Id., 487 Pa. at 273, 409 A.2d at 347. The Court stated the general rule that a final judgment may not be vacated. However, the Court also stated the exception to this rule that provides that a final judgment may be opened if fraud “or other equitable considerations required the granting of such relief.” Id., 487 Pa. at 270, 409 A.2d at 345. The Court concluded that the fact that appellant’s attorney had been suspended and could not represent her in connection with the preliminary objections that were ultimately granted, coupled with the fact that her attorney had misrepresented to her that he was representing her, constituted sufficient equitable grounds to allow the judgment to be opened. Id. The Court specifically stated that it did not regard the case as involving simple attorney neglect which alone would not justify opening the judgment. Id.

Similarly, Klugman involved a trial court’s opening of a final judgment entered upon an arbitration panel’s award. Klugman is slightly more analogous to the instant case than Estate of Gasbarini in that Klugman involved the action of a trial court in opening a judgment to allow an “appeal” to the trial court by the defendant against whom the judgment had been entered in the arbitration proceeding. Actually, the “appeal” involved conducting a trial de novo before the court of common pleas and the case is, therefore, more directly concerned with the opening of a final judgment than with an appeal nunc pro tunc. Klugman, 198 Pa.Super. at 270-72, 182 A.2d at 224-25.

The Klugman Court discussed both the standard for allowing the opening of a final judgment and the standard for allowing an appeal nunc pro tunc. As to opening a final judgment, the Court stated:

Unlike a judgment entered by confession or upon default, which remains within the control of the court indefinitely and may be opened or vacated at any time upon proper cause shown, a judgment entered in an adverse proceeding ordinarily cannot be disturbed after the expiration of the term at which it is entered____ The rule that adverse judgments may not be opened after the expiration of the term is not absolute, but the discretionary power of the court over such judgments is quite limited. Generally, the rule has been relaxed only where fraud appeared or the circumstances were so grave or compelling as to constitute “extraordinary cause” justifying intervention by the court.

Id., 198 Pa.Superior Ct. at 272, 182 A.2d at 225 (citations omitted).

In contrast, the Klugman Court indicated that a slightly different standard applied for the allowance of an appeal nunc pro tunc. The standard it enunciated was, as we have fully explained above, fraud or “neglect of a court official”, i.e. breakdown in court operations. Concluding that neither the standard for opening or vacating a final judgment nor for allowing an appeal nunc pro tunc included mere attorney neglect, Klugman reversed the trial court’s opening of the final judgment.

We cannot grant appellants relief in the instant case based upon either of the foregoing cases or the principles they enunciate. We have already concluded that this case involves attorney neglect. Both Estate of Gasbarini and Klugman conclude that this alone is an insufficient basis for a grant of relief. Appellants seem to suggest that despite this, the harsh result that will attend a decision by this Court to disallow this appeal is one of the equitable considerations which might, under Estate of Gasbarini, persuade us to allow the appeal nunc pro tunc. We do not agree. Although Estate of Gasbarini may be read to suggest that there is a broad spectrum of equitable considerations that might impact our decision, we do not think that was the Estate of Gasbarini Court’s intent. Moreover, as we have already indicated, Estate of Gasbarini is not directly in point.

We note, however, that we do perceive there to be unnecessary distinction between the standard under which a trial court can “open” its own final judgment entered in an adverse proceeding and the standard under which an appeal to an appellate court nunc pro tunc can be allowed. In the former, the standard is fraud or other “extraordinary cause”. In the latter, the standard is “fraud or breakdown in court operations” and, of course, the Bass non-negligent happenstance ground. In neither is attorney neglect enough. We are at pains to see the real distinction between these standards and see no reason why one should be drawn. In both instances, a decision to allow the petitioning party to proceed results in allowing a final disposition of an adverse proceeding to be subject to another round of review, albeit in different courts.

Recently, an en banc panel of this Court considered the gamut of situations in which a trial court may act to affect its own judgment. In Luckenbaugh v. Shearer, 362 Pa.Super. 9, 523 A.2d 399 (1987), we stated:

The judgment in this case ... was not entered by confession pursuant to a warrant of attorney. Also, it was not entered by default upon the filing of a praecipe. Rather, it was entered by the trial court in a contested proceeding____ As such, it is not subject to attack by a petition for a rule to show cause why judgment should not be open [sic] and/or stricken.
A judgment entered in a contested proceeding which ends the litigation must either be appealed within thirty days or the trial court must expressly grant reconsideration within thirty days from the entry of the judgment.

Id., 362 Pa.Superior Ct. at 13, 523 A.2d at 401. Failing such a grant of reconsideration or appeal, we stated that the trial court could only grant relief from the judgment if there has been fraud or extraordinary cause. Id,., quoting Simpson v. Allstate Ins. Co., 350 Pa.Super. 239, 504 A.2d 335 (1986); accord Insurance Company of North America v. Bishop, 365 Pa.Super. 183, 529 A.2d 33 (1987). We' further stated that the extraordinary cause courts have so frequently referred to “is generally an oversight or action on the part of the court or the judicial process which operates to deny the losing party knowledge of the entry of final judgment ...” Id.

Thus, in Luckenbaugh we appear to have moved toward equating the two standards. Nevertheless, the standards remain somewhat different in that it would appear that some equitable considerations, like those present in Estate of Gasbarini, may sway a court to grant relief from a final judgment and yet would not be enough to permit the allowance of an appeal nunc pro tunc. To the extent this disparity does exist, we must await a decision from our Supreme Court. As we noted, a unitary standard focusing solely on fraud or breakdown in court operations seems preferable.

Although we are satisfied that none of the authority cited by appellants provides a ground for allowance of an appeal nunc pro tunc in this case, we are compelled to consider one additional source of authority that we have independently located which arguably provides such a ground. We are aware that our Supreme Court has in at least one case indicated a special concern for the rights of natural parents in termination cases and has overlooked certain procedural deficiencies to better protect those rights.

In In re H.E.W., 487 Pa. 637, 410 A.2d 793 (1980), a natural mother appealed from a trial court decree terminating her parental rights. The mother’s rights were first terminated by entry of a decree on November 26, 1974, which was entered after a hearing. The mother had notice of the hearing but she did not attend. Over two months later, the mother filed a petition to open and vacate the November decree. The trial court granted the petition and conducted a new hearing on the termination which the mother attended. On May 26, 1977, the trial court entered a decree again terminating the mother’s rights. In its Opinion, the trial court stated that although it did not find justification for termination on the merits, it considered the mother’s petition to open the prior decree to be in the nature of an appeal which was untimely. Thus, the trial court concluded that the mother’s rights had to be terminated despite the merits in her favor. Id., 487 Pa. at 638-39, 410 A.2d at 793-94.

Quite understandably, the Supreme Court reversed. Id., 487 Pa. at 639, 410 A.2d at 794. Although the Court concluded that there was support in the record for a finding that the mother had waived her claims of error by failing to attend the first hearing or to file timely exceptions to or an appeal from the November decree, the Court also took specific note of the “severity of the emotional impact which attends a court decree terminating ... parental rights ...” Id. (citing In re Howard, 468 Pa. 71, 75-6, 360 A.2d 184, 186 (1976)). The Court also noted that its review of a termination decree was limited to ascertaining whether the demanding requirements of the termination statute had been met. Since the trial court’s finding on the merits had actually been that termination was not warranted, the Court chose to waive the applicable procedural rules and, in the interest of justice, to remand for a de novo termination proceeding. Id.

Justice Roberts authored a strong dissent in H.E. W. He pointed to the strong competing policy favoring the finality of judgments, particularly in the context of a termination of parental rights proceeding where, as in H.E.W., new prospective parents had already petitioned to adopt the child. Id., 487 Pa. at 643, 410 A.2d at 796 (Roberts, J., dissenting).

H.E. W. appears to stand alone. We have found no other case indicating that a special attitude toward what might be termed “procedural deficiencies” should be applied in termination cases. We also note that the H.E.W. Court appeared to limit its decision by stating that it would not “in this unusual case, ... permit injustice to be done in the name of form.” Id., 487 Pa. at 642, 410 A.2d at 795 (emphasis added).

In contrast, the case before us presents no such unusual circumstance. The trial court conducted this termination proceeding with the utmost care. The first hearing on the termination was continued so as to insure that the natural parents could obtain legal representation. At the next hearing, both parents were present, testified and had counsel. After this carefully conducted proceeding, the trial court entered its decree terminating appellants’ rights. Exceptions were duly filed, a further hearing was held, and the exceptions were disposed of in appellee’s favor. There is simply no comparison between these circumstances and those which convinced the H.E. W. Court that an injustice of such magnitude had been perpetrated that procedural deficiencies should be disregarded.

The order of the trial court is affirmed.

JOHNSON, J., files a concurring opinion.

JOHNSON, Judge,

concurring:

I agree with the result reached by the majority. The facts presented in this case do not involve either fraud or some breakdown in the trial court’s operation through default of its officers. The conclusion by the Honorable Paul B. Greiner that the appellant must be denied any right to file notice of appeal nunc pro tunc is eminently sound and must be affirmed.

I depart from my colleagues in their belief that Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979) must be revisited and analyzed in disposing of this appeal.

Firstly, appellant has asked us to determine whether the facts presented “constitute: ‘fraud, breakdown, or extraordinary cause’ which would allow filing of an appeal nunc pro tunc.” Brief for appellant, pages i, 3 and 8. Although the appellee, in its brief, refers to Bass in passing, while relying on Dorney Park Coaster Company, Inc. v. Board of Commissioners South Whitehall Township, 503 Pa. 67, 468 A.2d 462 (1983), the appellant neither cites to Bass nor makes a clear argument for non-negligent failure to file an appeal.

Secondly, I am not persuaded that Bass has any precedential value with regard to allowance of appeal nunc pro tunc. Only five members of the Supreme Court participated in the decision in Bass. Justice Manderino wrote the opinion in which only Justice Larson joined. This was less than a majority of those participating. Justice (now Chief Justice) Nix filed a concurring opinion in which he stated that he agreed with the result reached, and was “substantially in accord with the reasoning employed to reach that result.” Justice Roberts filed a strong dissent in which then-Chief Justice Eagen joined. Justice O’Brien did not participate. While one cannot dispute that the Bass opinion is decisional, it is not clear to me, and I am not persuaded, that it is precedential. See Bata v. Central-Penn National Bank of Philadelphia, 448 Pa. 355, 373, 293 A.2d 343, 353 (1972); Commonwealth v. Davenport, 462 Pa. 543, 559, n. 3, 342 A.2d 67, 75 n. 3 (1975); Commonwealth v. Silver-man, 442 Pa. 211, 218, n. 8, 275 A.2d 308, 312, n. 8 (1971); compare Commonwealth v. Scott, 279 Pa.Super. 8, 11, 420 A.2d 717, 719 (1980). In an opinion filed just two months after Bass was decided, Justice Roberts did cite to Bass while dissenting from the full court’s determination, in which five justices joined, refusing to overturn a trial court decision to permit a case to proceed to trial in the absence of the defendant and its counsel. Dublin Sportswear v. Charlett, 485 Pa. 633, 403 A.2d 568 (1979). (Roberts, J., dissenting, 485 Pa. at 640, 403 A.2d 568 at 572.) The Bass case was cited in Commonwealth v. Revtai, 516 Pa. 53, 532 A.2d 1 (1987) (Opinion by McDermott, J.) for the traditional proposition of breakdown in the normal operation of the courts. The Revtai case did not involve an appeal nunc pro tunc, but rather the proper application of Pa.R.Crim.P. 130(d).

Thirdly, I agree with this court’s earlier assertion, if only by way of footnote, that Dorney Park, supra, eliminated the problems in determining the scope of Bass, with its special exception for non-negligent failure to file an appeal. In re Adoption of J.A.S., 330 Pa.Super. 151, 152, n. 1, 479 A.2d 8, 9 n. 1 (1984). While the majority refers to this court’s treatment of Bass as being “quite restrictive,” the fact of the matter is that this court has yet to apply the unique holding in Bass in permitting any appeal nunc pro tunc.

Where the Supreme Court has not revisited the plurality opinion in Bass since 1979, and where this court has never relied upon Bass in allowing appeals nunc pro tunc, I would decline to find, as does the majority, that Bass retains vitality.

I have difficulty in understanding the majority’s assertion that “numerous decisions of both this and the Commonwealth Court have continued to treat Bass as a viable part of our law.” Majority Opinion, page 454. None of the three cases cited for this proposition found on behalf of the appellant. In Commonwealth v. Smith, 348 Pa.Super. 10, 501 A.2d 273 (1985), our court quoted with approval from Justice Roberts’ dissent in Bass and affirmed the order denying a petition for permission to appeal nunc pro tunc. In Moring v. Dunne, 342 Pa.Super. 414, 493 A.2d 89 (1985), this court quashed an appeal which had been granted nunc pro tunc, finding negligent conduct in the face of the death of appellant’s counsel. Also in Moring, this court collected cases which had refused to follow Bass. Finally, in Guat Gnoh Ho v. Unemployment Compensation Board, 106 Pa.Commw. 154, 525 A.2d 874 (1987), Judge Palladino affirmed for a unanimous Commonwealth Court panel a decision of the Board of Review dismissing a request for an untimely hearing.

Only if making reference to a case can provide vitality might it be said that Bass continues as a viable part of our law. It is for this reason, in part, that I feel compelled to distance myself from the majority’s analysis of Bass. I find little difference on the facts between the conduct of the attorney in Bass and the conduct of the attorney in the case now before us. I am unable to distinguish between the lawyer in Bass having failed to make adequate arrangements to check the work of his secretarial staff and the failure of the attorney here involved to make “special arrangements to insure that his professional obligations would continue to be fulfilled.”

Justice Roberts anticipated this case in his dissent in Bass, when he argued:

Is not today’s action a signal to litigants that the majority is abandoning the timeliness requirements firmly established by Pennsylvania statutory and decisional law and by our rules of court and will grant relief as it sees fit, based not on law or precedent but rather on what is asserted to be the staff situation in an attorney’s office? Today it is the claimed illness of an employee which the majority says is persuasive. Tomorrow will it not be the claimed illness of a member of the employee’s family or whatever the reasons for an employee’s absence or any other irrelevance? Will not today’s result create a new and unnecessary layer of delay, mandating a special inquiry whenever an appeal is untimely filed? An effective appellate judicial adversary system cannot function as a tribunal of equal justice under law when it excuses negligent noncompliance with the law on an ad hoc basis. Who is to know, therefore, whether today’s newly created majority rule will be available to all litigants or whether its application is for today’s appellant-litigant alone, “a restricted railroad ticket, good for this day and train only?” Smith v. Allwright, 321 U.S. 649, 669, 64 S.Ct. 757, 768, 88 L.Ed. 987, 1000 (1944). Does not the failure to enforce the timeliness requirements constitute an invitation to litigants to disregard the timeliness requirements and thus adversely affect the evenhanded administration of justice?

485 Pa. at 262, 401 A.2d at 1136-37.

I cannot help but align myself with my distinguished colleague, the Honorable Abraham H. Lipez, since retired, who looked at Bass in Gallardy v. Ashcraft, 288 Pa.Super. 37, 430 A.2d 1201 (1981) and remarked:

8. In State Farm Mut. Auto Ins. Co. v. Schultz, supra, note 3, [281] Pa.Super. [212] at [218], n. 7, 421 A.2d 1224, 1227, n. 7 (1980), the Bass case was distinguished on the ground that there was no indication on the record that the failure to file a timely appeal resulted from non-negligent happenstance. Here, too, there is no indication of non-negligent happenstance, but that might not suffice to distinguish this case, as it did Schultz, which involved the timeliness of an appeal to this court. Here the question is timeliness of the appeal to the court below, which applied the Bass “non-negligence” standard to facts arguably involving negligence. It is difficult to fault the court below for doing this, since the Bass majority applied its “non-negligence” standard to a set of facts which plainly seemed to involve negligence under any traditional meaning of the term. The confusion is compounded by the lack of any standard procedure in making a “non-negligence” determination, as well as the lack of a standard of review where, as here, we review the lower court’s finding of “non-negligence,” rather than make our own determination as to the timeliness of an appeal to our court. We have managed to avoid these thorny problems in this case through our holding on nonretroactivity, a point we may raise ourselves, although not argued by appellant, because it involves the jurisdiction of the court below. See generally, Commonwealth v. Boerner, [281] Pa.Super. [505], [515], n. 11, 422 A.2d 583, 588-89, n. 11 (1980). Unless the Supreme Court soon clarifies the effect of Bass, however, it will not be long before it is causing just the kind of chaos predicted by Justice Roberts in his dissenting opinion and opinion dissenting from the denial of reargument.

Gallardy, 288 Pa.Super. at 43, n. 8, 430 A.2d at 1204, n. 8.

I agree with my colleagues that this case involves attorney neglect. This being true, I believe it to be the better course to avoid further review of Bass v. Commonwealth, and leave to our Supreme Court the task of placing that decision in its proper perspective.

Moreover, the cases cited by appellant in an attempt to secure what my colleagues term “equitable” relief involve attempts to open or vacate a judgment in the trial court and are clearly inapposite on this appeal where the only issue is the right to appeal nunc pro tunc. I therefore would decline to analyze those cases for the purpose of finding an “unnecessary distinction” between what is clearly before us and what is not a part of this appeal.

Because the appellant has not shown either fraud or some breakdown in the trial court’s operation, the trial court’s order denying appellant’s petition to appeal nunc pro tunc should be affirmed. I therefore join in the result reached by my colleagues.

      . In re Adoption of J.A.S. was an appeal from a trial court denial of a petition to appeal nunc pro tunc by a natural mother from an order terminating her parental rights. The court held that since her petition to appeal nunc pro tunc alleged facts which, if proven, would justify allowing the appeal, the matter should be remanded for a fact finding hearing. Perhaps because of this court’s citation to J.A.S. in our Per Curiam Order, the trial court in the instant case held a hearing on appellants’ Petition on April 14, 1987.

      . The concurrence questions the precedential status of Bass, apparently because only five members of the Supreme Court participated in the decision and because of those five, only two justices joined the lead opinion, one justice concurred and two justices dissented. We are not aware of any other court that has raised this question regarding Bass in the eight years since the decision was rendered. In our view, there is no question that Bass represents the view of the majority of the justices who participated in the decision and is, therefore, precedential. The fact that only five justices participated in the decision is not relevant in that our Supreme Court has held that where five justices participate, the majority view of those justices becomes binding precedent on the courts of Pennsylvania. Commonwealth v. Mason, 456 Pa. 602, 604, 322 A.2d 357, 358 (1974).
      Moreover, it is clear that Justice Nix’s concurrence in Bass expresses his agreement with both the result and the reasoning of the lead opinion and constitutes only an additional statement of reasoning in support of the lead opinion and in opposition to the dissent. Indeed, in the legal context of Bass, if Justice Nix had not concurred in the lead opinion’s reasoning, he could not have joined in that opinion’s disposition of the case. See Commonwealth v. Scott, 279 Pa.Super. 8, 11, 420 A.2d 717, 719 (1980).
      Thus, although we agree with the concurrence’s expression of dissatisfaction with the Bass decision, we have no choice but to regard it as a binding expression of the Supreme Court’s views.

      . A final judgment in a contested proceeding is to be contrasted with both a final judgment entered by default or confession and an interlocutory order. As to the former, a final judgment entered by default or confession is not entered after both parties have had a full opportunity to present their positions on the issues and the interest in preserving the finality of such judgments is correspondingly lower than where a final judgment has been entered after a complete adverse proceeding. Thus, a default or confessed judgment may be opened at any time upon proper cause shown. See Simpson v. Allstate Ins. 350 Pa.Super. 239, 504 A.2d 335 (1986) (quoting Klugman, 198 Pa.Super. at 272, 182 A.2d at 225). Similarly, an interlocutory order of a trial court may be modified at any time. Where the order has not been entered as a judgment or final decree, the trial court has inherent power to reconsider its order even in the absence of fraud or other extraordinary cause. Atlantic Richfield Co. v. J.J. White, Inc., 302 Pa.Super. 276, 448 A.2d 634 (1982) (citing Commonwealth v. Bowden, 456 Pa. 278, 309 A.2d 714 (1973) (30 limit on modification of orders by trial court provided in 42 Pa.Cons.Stat.Ann. 5505 does not apply to interlocutory orders); Pa.R.C.P. 1701(b)(6) (trial court may proceed further in any matter in which non-appealable interlocutory order has been entered despite the filing of a notice of appeal from the order). Even where our rules provide for the filing of post-trial motions to such an order, the time for the filing of such motions can be extended by the trial court and the court may reconsider its interlocutory order on the grounds asserted in the late post-trial motions where "good and sufficient reason” for the late filing is shown. McAleer, Inc. v. Iceland Products, Inc., 475 Pa. 610, 381 A.2d 441 (1977).

      . Interestingly, Estate of Gasbarini would appear to be the equivalent in the context of relief from final judgment cases of the Bass decision in the context of appeal nunc pro tunc cases. As in Bass, Estate of Gasbarini presented the court with a factual scenario sufficiently unique and compelling to warrant relief, although it did not fit precisely within the traditional principles applicable to such cases.

      . It is noteworthy that the J.A.S. Court’s footnote regarding the present viability of Bass also contained a statement that the Dorney Park case eliminated the need to determine the scope of H.E.W. As we have already explained at length, we do not read Dorney Park nearly as broadly as did the J.A.S. Court.


source: Caselaw Access Project

author:
OLSZEWSKI, Judge:
      WIEAND, Judge,

license: Public Domain

text:
    535 A.2d 645
    COMMONWEALTH of Pennsylvania, Appellant, v. Earl B. WILKINS, Appellee. COMMONWEALTH of Pennsylvania, Appellee, v. Earl B. WILKINS, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 6, 1987.
    Filed Jan. 6, 1988.

      Hugh Burns, Jr., Assistant District Attorney, Philadelphia, for Com., appellant (at 708) and appellee (at 943).
    Jeffery Shender, Assistant Public Defender, Philadelphia, for Wilkins, appellee (at 708) and appellant (at 943).
    Before CIRILLO, President Judge, and WIEAND and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

These are appeals from the judgment of sentence entered after the trial court found appellant-Wilkins guilty of aggravated assault and possession of an instrument of crime. Appellant-Commonwealth presents one issue for our review: whether the trial court abused its discretion by imposing a standard-range sentence under the sentencing guidelines. In his cross-appeal, appellant-Wilkins presents two issues for our review: (1) whether the sentencing guidelines were adopted in violation of the bicameral consideration and gubernatorial presentment provisions of the Pennsylvania Constitution and the separation of powers doctrine; and (2) whether the deadly weapon enhancement provision of the sentencing guidelines is unconstitutional. For the reason stated below, we must vacate Wilkins’s sentence and remand for resentencing.

Following a bench trial, the trial court found Wilkins guilty of aggravated assault and possession of an instrument of crime. Post-verdict motions were filed and denied. Wilkins was then sentenced to 28 to 56 months’ imprisonment. The Commonwealth and Wilkins each filed a petition to reconsider sentence. Both petitions were denied and both parties subsequently appealed to the trial court, which dismissed the appeals. The Commonwealth and Wilkins both filed timely appeals to this Court which have been consolidated.

With respect to Wilkins’s appeal, Wilkins first contends that the sentencing guidelines were adopted in violation of the bicameral consideration and gubernatorial presentment provisions of the Pennsylvania Constitution and the separation of powers doctrine. Wilkins, however, has failed to preserve this issue for our review. Wilkins waived this issue by failing to raise it in the trial court at sentencing or in his petition to reconsider sentence. See Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987).

Wilkins’s next contention is that the deadly weapon enhancement provision of the sentencing guidelines is unconstitutional. An examination of the record reveals that this issue was raised in the trial court and, consequently, is properly before us for review. See N.T. 12/22/86 at 56. In light of our Supreme Court’s recent invalidation of the sentencing guidelines in Sessoms, supra, we are constrained to find that the trial court acted improperly when it gave appellant an enhanced sentence pursuant to the deadly weapon enhancement provision of the sentencing guidelines. See Commonwealth v. Taylor, 516 Pa. 21, 531 A.2d 1111 (1987) (in view of recent invalidation of sentencing guidelines, trial court properly refused to apply the deadly weapon enhancement provision of the sentencing guidelines).

Accordingly, the judgment of sentence is vacated and the matter is remanded for resentencing. Jurisdiction is relinquished.

Dissenting statement by WIEAND, J.

WIEAND, Judge,

dissenting:

I respectfully dissent. I find no abuse of the sentencing court’s discretion and, therefore, would affirm the judgment of sentence.

      . 42 Pa.C.S.A. § 9721, 204 Pa.Code § 303.1, et seq.

      . 204 Pa.Code § 303.4.

      . Appellant’s sentence on the aggravated assault conviction was enhanced under § 303.4 of the sentencing guidelines. 204 Pa.Code § 303.4 (deadly weapon enhancement). Section 303.4 provides that when a defendant possesses a deadly weapon, the court must add at least 12 months, and up to 24 months, confinement to the guideline sentence range which would otherwise have been applicable. Appellant was not sentenced on the possession of an instrument of crime charge by virtue of the merger doctrine.

      . Specifically, appellant, relying on this Court’s decision in Commonwealth v. Taylor, 346 Pa.Super. 599, 500 A.2d 110 (1985) (en banc), argues that the deadly weapon enhancement provision of the sentencing guidelines is both unconstitutionally vague and overbroad. We recognize, however, that a panel of this Court has recently stated that Sessoms, supra, applies only to challenges to the constitutionality of the procedure by which the sentencing guidelines were adopted. See Commonwealth v. Wallace, 368 Pa.Super. 255, 533 A.2d 1051 (1987). The panel explained in Wallace that:
      The focus in Sessoms was upon the constitutionality of the mechanism by which the Sentencing Guidelines were adopted. The Supreme Court held that the process was flawed insofar as it failed to comply with the requirements delineated in Art. Ill section 9 of the Pennsylvania Constitution, dealing with "bicameral consideration and presentment for gubernatorial approval.” Sessoms, supra, 516 Pa. at 371-372, 532 A.2d at 778. Appellant herein has not challenged this .aspect of the Guidelines and has limited his argument to the areas of vagueness and overbreadth.

        Wallace, supra, 368 Pa.Superior Ct. at 262, n. 3, 533 A.2d at 1054, n. 3. The panel, consequently, concluded that Sessoms did not apply to the Wallace case.
      Our review of this Court's decision in Taylor, supra, however, fails to disclose where appellant in that case raised the issue of the constitutionality of the deadly weapon enhancement provision on the basis of lack of "bicameral consideration” or "presentment for gubernatorial approval”. Nonetheless, on appeal to the Pennsylvania Supreme Court, this Court’s decision in Taylor was affirmed on the basis of Sessoms. Our Supreme Court upheld the trial court’s refusal to apply the deadly weapon enhancement provision in light of the fact that the sentencing guidelines were recently held invalid in Sessoms. Similarly, we find that Sessoms also applies to the instant case. While we find the panel’s reasoning in Wallace to be persuasive, we are required to follow our Supreme Court’s order in Taylor.

      . We must determine, however, whether Wilkins has properly presented this claim in accordance with our Supreme Court’s recent decision in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). In Tuladziecki, the Court mandated that a party appealing the discretionary aspects of a sentence comply with the requirement of Pa.R.A.P. 2119(f) that an appellant's brief set forth a "concise statement of the reasons relied upon for allowance of appeal.”

        Instantly, Wilkins’s brief fails to comply with the requirement of Pa.R.A.P. 2119(f) as it does not contain a separate section stating "the reasons relied upon for allowance of appeal with respect to the discretionary aspects of [appellant's] sentence.’’ Because appellee has failed to object, however, to this procedural violation, the defect in appellant’s brief is waived. Consequently, we will, in an exercise of our discretion, determine whether there is a substantial issue presented which requires review of the sentence imposed. As previously noted, Wilkins contends that the deadly weapon enhancement provision of the sentencing guidelines is unconstitutional. We deem this attack on the validity of that provision of the guidelines to be of substantial importance and, therefore, we will allow this appeal.
      We further note that it is arguable that Tuladziecki does not apply if one presumes that appellant’s constitutional attack on a provision of the sentencing guidelines implicates the legality, rather than a discretionary aspect of the sentence imposed. We do not believe, however, that Wilkins’s claim of constitutionality raises the "legality” of his sentence. In our opinion, a constitutional challenge to the sentencing guidelines does not render an otherwise legal sentence illegal or unconstitutional. Importantly, even if the guidelines were removed from the court’s consideration, the court would still have legal authority to sentence within the statutory limits. For these reasons, we find that Wilkins’s issue is subject to the requirements set forth in Tuladziecki.

      . In light of our disposition of Wilkins’s appeal (No. 943 Philadelphia 1987), we find it unnecessary to address the merits of the Commonwealth’s contentions in the appeal at No. 708 Philadelphia 1987.


author: CIRILLO, President Judge:

text:
    535 A.2d 648
    KEYSTONE AUTOMATED EQUIPMENT CO., INC., Appellant, v. RELIANCE INSURANCE CO.
    Superior Court of Pennsylvania.
    Argued Sept. 21, 1987.
    Filed Jan. 6, 1988.

      Michael M. Baylson, Philadelphia, for appellant.
    K. Charles Gudenas, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and BECK and TAMILIA, JJ.
   CIRILLO, President Judge:

In January of 1983, Texaco International Trader, Inc. and Societe de Futs et Emballage (Texaco) sued Keystone Automated Equipment Company (Keystone) alleging that Keystone was negligent in the selling and installation of equipment that was to be used to produce oil drums. That equipment was to be installed in a plant in Abidjan, Ivory Coast, Africa. The contracts in question provided that Keystone would sell, install, test and otherwise provide services for the proper installation, operation and maintenance of that equipment. The complaint alleged that Keystone breached contracts to deliver the equipment and complete the work by June 19, 1981, that the equipment was defective and inoperable, that Keystone failed to repair or replace it, and that Keystone was guilty of negligence in the manufacturing, production, transportation, design, engineering, inspection, and maintenance of the equipment.

Keystone and Texaco settled out of court for the sum of one million dollars. Keystone had notified Reliance, its insurer,' of the suit and requested that it defend the suit and provide coverage. Reliance refused claiming that the property damage was not covered because, inter alia, the damage did not occur within the policy territory. Keystone had previously purchased from Reliance Insurance Company a comprehensive insurance policy under which it agreed to indemnify Keystone for all personal injuries, property damage, fire losses, and advertising injuries caused by an occurrence during the policy period and within the policy territory. “Policy territory” is defined by the policy as “the United States of America, its territories or possessions, or Canada.” “Occurrence” is defined as “an accident, including continuous or repeated exposure to conditions, which results in personal injury or property damage neither expected nor intended from the standpoint of the insured.”

Keystone then brought suit in the Court of Common Pleas of Philadelphia County to recover the amount of the judgment from Reliance, along with the costs of defending the suit. The court granted Reliance’s motion for judgment on the pleadings and dismissed the complaint. The court found as a matter of law that the actions alleged by Texaco did not occur within the policy territory so that Reliance was under no obligation to either defend or indemnify Keystone. Keystone had filed a motion for summary judgment; the court did not consider that motion.

The appellant argues on appeal that the trial court erred in granting a motion for judgment on the pleadings because: (1) the fact that the coverage claimed by Keystone is barred under a policy exception is disputed in the pleadings, and Reliance has failed to bear the burden of proof on that issue; (2) the coverage exclusion is an affirmative defense upon which Reliance bears the burden of proof; (3) the decision in D’Auria v. Zurich Insurance Company, 352 Pa.Super. 231, 507 A.2d 857 (1986), supports Keystone’s contention that the claims against Reliance are potentially within the coverage of the policy; and (4) case law shows that the insurer must provide a defense and indemnify claims brought against Keystone. We disagree with appellant’s arguments, and affirm the trial court’s order.

In reviewing a trial court’s decision to grant judgment on the pleadings, the scope of review of the appellate court is plenary; the reviewing court must determine if the action of the trial court was based on a clear error of law or whether there were facts disclosed by the pleadings which should properly go to the jury. Vogel v. Berkley, 354 Pa.Super. 291, 296, 511 A.2d 878, 880 (1986). The appellate court must confine its consideration to the pleadings and relevant documents, id., accept as true all well pleaded statements of fact by the party against whom judgment is granted, in this case, the insured, and consider against him only those facts that he specifically admits. Jones v. Travelers Insurance Company, 356 Pa.Super. 213, 216, 514 A.2d 576, 578 (1986). Judgment on the pleadings may be granted only where the moving party’s right to succeed is certain and the case so free from doubt that a trial would clearly be a fruitless exercise. Id.

In the instant case, Keystone contends that Reliance was bound to defend it under the policy. It is clear that in order to determine whether the insurer is obligated to defend an insured, the reviewing court must decide whether, if the facts alleged in the complaint are proven to be true, the policy would provide coverage. State Auto Insurance Company v. Kufahl, 364 Pa.Super. 230, 232-236, 527 A.2d 1039, 1040-1041 (1987). After review of the complaint in the instant case, we find that even if the facts as alleged by Keystone were true, the policy would not provide coverage. From this, we find that judgment on the pleadings was proper, since insurer Reliance’s right to succeed was certain and the case free from doubt.

In the instant case, appellant argues first that the court of common pleas did not accept as true all the facts pleaded by it. Specifically, appellant complains that the court erred by failing to accept as true its answer to Paragraph 33 of Reliance’s New Matter. Paragraph 33 of Reliance’s New Matter states:

33. Claims asserted by Texaco against Plaintiff in the Underlying Action were not within the terms and conditions of the Policy and they were specifically excluded from coverage by pertinent exclusions and limitations set forth in the Policy.

Keystone attempted to deny these allegations in its Answer to New Matter of Defendant:

33. Denied. Claims asserted by Texaco against plaintiff in the underlying action required defendant to defend plaintiff and were not specifically excluded from coverage by pertinent exclusions and limitations set forth in the insurance policy issued by defendant to plaintiff.

Keystone argues that the court should have accepted its denial as true under the rules for granting judgment on the pleadings, and therefore judgment should have been denied. Reliance contends that the court was entitled to accept as true all facts and reasonable inferences to be drawn from those facts. It argues that Keystone’s denial was not a pleading of fact, but rather an inference derived from the pleaded facts.

In considering whether or not to grant judgment on the pleadings, the court may not take into account conclusions of law or unjustified inferences asserted by either party. Travelers Insurance Company, 356 Pa.Super. at 216, 514 A.2d at 578. Neither the allegations of Keystone nor of Reliance may be accepted as facts here. Keystone’s allegations are conclusory. The disposition of this case revolves around the question of whether or not the suit in question was covered by the policy. The trial court made no error in refusing to accept Keystone’s allegations that the policy did in fact cover the underlying suit.

Appellant also argues that the coverage exclusion Reliance depends upon is an affirmative defense upon which Reliance bears the burden of proof. Under Pennsylvania law, an insurer must bear the burden of proof that an exclusion applies. Miller v. Boston Insurance Company, 420 Pa. 566, 570, 218 A.2d 275, 277 (1966). See also, Myrtil v. Hartford Insurance Company, 510 F.Supp. 1198, 1200-1201 (E.D.Pa.1981) (where an insurer seeks to disclaim under an insurance policy by invoking an exclusionary provision, it bears the burden of proving the exclusion is applicable to the case). Keystone argues that Reliance could not meet this burden on the pleadings. Considering the pleadings, it is clear that Keystone has alleged that its policy provides coverage, and that Reliance has alleged that the policy does not. The pleadings in the underlying case, properly brought to the attention of this court, must themselves be considered to determine if the case is so free from doubt that no trial is necessary, that is, if Reliance has carried its burden on the pleadings alone. The controlling question then, is whether or not the event or the effect of the event is the “occurrence” which is properly covered by the insurance policy. In other words, is Keystone covered by the policy if the events which led to the damage occurred within the policy territory, but the damage occurred without.

This is the question with which the remaining two issues Keystone raises on appeal are concerned. Keystone claims first that the trial court misread D’Auria v. Zurich Insurance Company, 352 Pa.Super. 231, 507 A.2d 857 (1986), on which that court relies, and that D’Auria in fact supports its own contentions. Keystone then argues that case law from other jurisdictions supports its claim that the determination of whether the occurrence happened within the policy territory is made by determining where the events leading to the damages occurred rather than where the damages arose.

In D’Auria, this court considered the question of when an “occurrence” had happened. D’Auria was a pediatrician who was sued for malpractice by Gregory Egnot, a former patient. Egnot had been treated by D’Auria from his birth in 1957 until 1963; in 1979 he suffered from renal failure that he claimed was caused by D’Auria’s negligence during and after the time he was his patient. D’Auria, in turn, brought suit against three insurance companies claiming that they had a duty to defend the malpractice action. None of the companies insured D’Auria during the time that Egnot was his patient. The court found no duty to defend on the part of any of the companies.

The decision turned on the question of what constituted an “occurrence”. The court held that the determination of when the “occurrence” had happened should be based on the time when the injurious effects first manifested themselves. Id., 352 Pa.Superior Ct. at 238-39, 507 A.2d at 861. “Thus an occurrence happens when the injury is reasonably apparent, not at the time the injury occurs. The cause and the injury may happen at very distinct time periods.” Id., 352 Pa.Superior Ct. at 239, 507 A.2d at 862. Further, this court pointed out that courts in other jurisdictions have indicated that an “occurrence” cannot happen until the injury or damage is irremediable, and it stated that there was no reason to wait until the injury was a “certain proposition” to pinpoint the time of occurrence. Id.

Appellant argues that the trial court erred in applying D ’Auria to the case at bar because the D Auria court was considering time of the “occurrence” as opposed to place. The appellant also points out that the court used two separate tests to determine the number of “occurrences” and the timing of those “occurrences.” For the former, the court applied the ‘cause’ test, which considers if one proximate, uninterrupted and continuing cause existed which resulted in the damage, id., 352 Pa.Superior Ct. at 236-37, 507 A.2d at 860, and for the latter, the ‘effect’ test, which asks when the injurious effects took place. Id., 352 Pa.Superior Ct. at 238, 507 A.2d at 861. The appellant contends that if two different tests are to be utilized in these two different situations, then the ‘effect’ test is not necessarily the test which should be used to determine place of occurrence. Appellant, however, offers no reasons for its contention. We note, as did Judge McFadden in his dissent in Shields v. Hiram C. Gardner, Inc., 92 Idaho 423, 444 P.2d 38 (1968), that both the territorial condition as well as the policy period are established in the same paragraph of the policy. We agree that the term “occurrence”, then, should be construed similarly in interpreting both conditions. See id. at 432, 444 P.2d at 47 (McFadden, J., dissenting).

In any case, following the reasoning of the Third Circuit Court of Appeals, it seems clear that the ‘effect’ test is applicable to a determination of place of occurrence as well as of time. In Appalachian Insurance Company v. Liberty Mutual Insurance Company, 676 F.2d 56 (3rd Cir.1982), the third circuit held that the time at which an “occurrence” occurs must be determined by reference to when the injurious effects of the occurrence took place. Id. at 61-2. The court reached this decision by considering the reasonable expectations of an insured in purchasing the policy:

Our adoption of the effect test for determining when an occurrence took place is dictated by the reasonable expectations of the insured in purchasing a policy of this type ... Liberty could reasonably expect that it would be indemnified for damages paid on account of liability incurred during the policy period. Since injury is prerequisite to liability, Liberty reasonably expected to be indemnified for injuries occurring during the policy period. The expectation is evident in the language of the policy which specifically defines occurrence as something that results in injuries during the policy period.

Id. at 62 (citations omitted). The court was concerned with making the insurer responsible for a liability for which it' had not contracted. Clearly, the same considerations apply to a determination of place. Again, the reasonable expectations of the insured are that it be indemnified for occurrences happening within the policy territory. Application of the ‘cause’ test, which appellant seems to advocate, would increase its coverage beyond the coverage for which it had paid. As appellee Reliance points out, if Keystone had wanted world-wide coverage, it could have paid a higher premium to obtain it.

Appellant further argues that D’Auria may be read to support its proposition that the “occurrence” happened when the events which caused the damages occurred. The appellant claims that a factual determination of when the injurious effects would have manifested themselves must be made; it claims that it is possible they may have manifested themselves in Philadelphia where the negligent acts were performed. If this is so, then the property damage caused by those acts would fall within the policy coverage. The appellant quotes the D’Auria court: “[t]he party alleging the negligence need not have actually discovered the injurious effects at the time they first manifested themselves____” D’Auria, 352 Pa.Super. at 238, 507 A.2d at 861.

Appellant Keystone places great emphasis on this language in arguing that the damage caused by its negligence could potentially have manifested itself in Philadelphia. It points out that the equipment in question was to be shipped F.O.B. Philadelphia, and that many of its obligations were to be discharged there: rebuilding, repainting and putting the equipment in “first class operating condition,” packing the equipment in ocean-going containers, and having the equipment inspected. Appellant, however, has failed to quote the D’Auria court’s entire statement:

“The party alleging the negligence need not have actually discovered the injurious effects at the time they first manifested themselves ... an “occurrence during the policy period” takes place when both the accident and the resulting injury occur within the policy period ... when injury is reasonably apparent, not when the cause of the injury occurs. The cause and the injury may happen at very distinct time periods.”

Id., 352 Pa.Superior Ct. at 238-39, 507 A.2d at 861-2 (emphasis added). The cause and the injury may also occur at very distinct places, both within and without the policy territory.

We read D’Auria to hold that the time when the damages arise, that is, the time of ultimate injury, is the time that must be examined to determine if the claim falls within the policy limitations. Although that court did state that it saw no reason to wait to pinpoint the occurrence until the ultimate injury became a “certain proposition”, id. at 240, 507 A.2d at 862, it was concerned with the ultimate injury, in that case the deterioration of the kidneys. Further, as the Third Circuit stated in Appalachian Insurance Company, “ ‘There can be no question but that the aspect of the occurrence which must take place within the policy period ... is the “result”, that is, the time when the accident or injurious exposure produces personal injuries.’ ” Appalachian Insurance Company, 676 F.2d at 62 (citations omitted). See, e.g., Draft Systems, Inc. v. Alspach, 756 F.2d 293, 297 (3rd Cir.1985) (time of receipt of defective tubing was rejected as the pertinent time under the policy terms). From this, we have no difficulty in deciding that the same result must be reached in considering the place where the damage occurred. The property damage here clearly could not occur until the equipment had been installed in the plant in Africa, that is, until the time of the ultimate injury.

Keystone also argues that case law from other jurisdictions should be adopted by Pennsylvania in determining the proper test for determining the policy territory coverage of an insurance policy. Keystone cites cases for the proposition that where the language of the policy is susceptible of two different constructions it should be construed strictly against the insurer. Because the policy first limits the coverage to the “policy territory,” (“This insurance applies only to personal injury, advertising injury or property damage which occurs during the period of insurance and within the policy territory”), and then defines occurrence as “[a]n accident, including continuous or repeated exposure to conditions, which results in personal injury or property damage neither expected nor intended from the standpoint of the insured,” Keystone argues that the policy confuses damages with the occurrence that would create liability. We fail to understand this argument. We find no confusion here. Clearly, as discussed above, the occurrence giving rise to liability is the actual injury to the person or the property.

Other courts construing similar policies have had little difficulty in separating damages from the events which give rise to damages. See, e.g., Appalachian Insurance Company v. Liberty Mutual Insurance Company, 676 F.2d 56 (3rd Cir.1982); D’Auria v. Zurich Insurance Company, 352 Pa.Super. 231, 507 A.2d 857 (1986). In Hagen Supply Company Corp. v. Iowa National Mutual Insurance Company, 331 F.2d 199 (8th Cir.1964), Hagen Supply Corporation was sued by a minor injured when a tear gas device sold by Hagen to another minor was discharged. The suit alleged that Hagen acted negligently and in violation of the law in selling the device. The insurer refused to defend, Hagen defended the suit and lost. Hagen then instituted an action against the insurer. It argued that the place of the negligent act — the sale which was the proximate cause of the injury — was controlling, and the place of the accident should be immaterial. Id. at 201. The Eighth Circuit Court of Appeals disagreed. Failing to find a duty to defend, the court stated, “[T]he question to be resolved here concerns the place where the accident occurred, not the proximate cause of it.” Id. at 202. See also Hultquist v. Novak, 202 Minn. 352, 278 N.W. 524 (1938), (“Some circumstances may have occurred on the premises which may have contributed to an injury which resulted from an accident occurring elsewhere. This may have resulted in liability on the part of the defendant without coming within the coverage of the policy because the accident did not happen within the area limited by the terms of the contract. We are concerned here with the whereabouts of the accident, not with the question of proximate cause.”)

Keystone cites Oil Base, Inc. v. Continental Casualty Company, 271 Cal.App.2d 378, 76 Cal.Rptr. 594 (1969) and Shields v. Hiram C. Gardner, Inc., 92 Idaho 423, 444 P.2d 38 (1968) to support its contention that even though the actual damage arose outside of the policy territory, because the negligent acts occurred within the territory, the insurer had a duty to defend. We find neither case to be particularly instructive here, as both may be distinguished on their facts and their reasoning.

In Oil Base, appellant company had purchased a policy from Continental Casualty to cover injury or destruction of property caused by accident. The policy was limited to accidents which occurred within the United States of America, its territories or possessions, or Canada. Appellant company sold some bags of drilling mud to a company located in South America; some time later, the drilling mud caught fire by spontaneous combustion. Continental Casualty contended that its policy was inapplicable as the accident occurred outside the policy territory.

The reviewing court held that the insurer did have a duty to defend and indemnify. It based its decision upon a definition of the word “accident” taken from a California case, Maxon v. Security Insurance Company, 214 Cal. App.2d 603, 29 Cal.Rptr. 586 (1963): “The word accident is predicated on an occurrence which is the cause of the injury. That is to say, as used in liability insurance contracts, the word is employed to denote the cause, rather than the effect.” Id. at 612, 29 Cal.Rptr. at 591. Because the court found that the policy could have defined accident and did not, it applied the above definition and found that the accident in question occurred in Venezuela.

Further, the court pointed out that the policy in question was a general liability policy, and defined the risk coverage without geographical limitations. It was only in the Insurance Agreement paragraph of the policy that Continental set out the policy territory. For this reason, the court found that the insured could have believed he would have been covered against third party suits such as the one in question.

The California Court of Appeals expressly questioned the Oil Base decision in Employers Casualty Co. v. Northwestern National Ins., 109 Cal.App.3d 462, 167 Cal.Rptr. 296 (1980). That court concluded that the general rule is that the time of the occurrence of an accident within the meaning of an indemnity policy is not the time the wrongful act was committed, but the time when the complaining party is actually damaged. Id. at 469, 167 Cal.Rptr. at 299. It then went on to state:

Two California cases [one of which is] ... Oil Base ... are in direct conflict with all other California cases as well as the leading cases from other jurisdictions ... Oil Base ‘[has] taken a path diverging from that followed by a long line of authority — ’

Id. (Citations omitted). The California court then declined to follow that path. Id.

In Shields, the other case cited by Keystone, seeds that had been sold to Mexican farmers failed to germinate because of an error in mechanical mixtures applied in the United States. The policy territory, which had been set out as was the territory in the instant case, was altered by a “General Change Endorsement” in which the word accident was substituted for the word occurrence “wherever used with respect to coverages afforded for ‘Property Damages Liability — Losses’ resulting from Products as afforded hereunder.” The definition of product was amended to include protection against liability from the erroneous delivery of seeds, errors in mechanical mixtures, cross-pollination, germination failure or noxious weed seed.

Again, the term “accident” was used in the policy in question to encompass specific happenings. As the Idaho court pointed out, the executive vice president of the insurer told an executive of the insured that it was covered from seed product losses caused by accident. The very thing against which Shields was insured, the mistake in mechanical mixture, did occur, and occurred in Idaho, within the policy territory. The court had no difficulty in finding from the amendments to the policy and the definitions added that this accident was exactly what the insured had purchased insurance against, and that therefore the insurer was liable to defend.

Shields can then give no comfort to Keystone here. In the instant case, no changes or amendments have taken place. Unlike the situation in Shields, the occurrence against which Keystone was insured did not occur. No representations were made by appellee to appellant concerning extension of policy coverage. Appellant received exactly the amount of coverage to which it was entitled. The appellant cannot argue as did the insured in Oil Base that it had a reasonable expectation that it would be covered under the policy as it was written. The policy territory limitation is discussed in a section entitled Policy Territory, and defined in the definition section of the policy. Again, had Keystone wished to obtain world-wide coverage, it could have done so by paying an additional premium. Clearly Keystone could have had no reasonable expectation that it would be covered outside the policy territory as defined. Further, the term “accident” is not used here in any specialized way, nor is it in issue.

The assertions of Keystone that courts of other jurisdictions have held that the time of the negligent act or omission is the time at which the policy period should be determined, and that therefore by analogy the place of the negligent act or omission is the place which determines policy territory, are unfounded. Most courts have declined to follow that holding, as did the California Court of Appeals in Employers Casualty, supra, as do we here. Judge McFadden, dissenting in Shields, surveyed analogous case law. He found that three lines of authority existed: “products hazard” cases; “on the premises” cases; and “completion of work” cases. These cases distinguished between the act which caused the injury or damage (sale, negligent handling, defective product, improper installation) and the injury or damage itself. Policy coverage existed only where the damage manifested itself during the policy period or on the premises covered by the policy. 92 Idaho at 433, 444 P.2d at 48. Following this authority, Judge McFadden found that the policy’s territorial condition rendered it applicable only within the United States, its territories, or Canada. Id. at 434, 444 P.2d at 49.

Our own examination of case law in the area indicates that it is the position of a majority of jurisdictions that the time at which damages arise is the proper time at which to determine the policy period. See, e.g., Utica Mutual Insur ance Co. v. Tuscaloosa Motor Co., Inc., 295 Ala. 309, 329 So.2d 82 (1976) (negligent repairs took place during policy period, damage after; no coverage); Outdoor World v. Continental Casualty Ins. Co., 122 Ariz. 292, 594 P.2d 546 (1979) (boat with steering mechanism sold during policy period, injury occurred after; accident occurs when party is damaged); Employers Casualty Co. v. Northwest National Insurance, 109 Cal.App.3d 462, 167 Cal.Rptr. 296 (1980) (injuries occurred subsequent to policy period, acts leading up to injuries occurred when policy was in effect; no coverage); Samuelson v. Chutich, 187 Colo. 155, 529 P.2d 631 (1974) (gas line negligently installed during policy period, exploded after; accident occurred at time of explosion not when wrongful act occurred); Prieto v. Reserve Ins. Co., 340 So.2d 1282, 1283 (Fla.Dist.Ct.App.1977) (building built in policy period, collapsed after; accident took place when collapsed); Millers Mutual Fire Ins. Co. v. Ed Bailey, Inc., 103 Idaho 377, 647 P.2d 1249 (1982) (installation of insulation in potato storage structure during policy, fire after; time of occurrence, not time of wrongful act determines coverage); Oceanics, Inc. v. Petroleum Dis. Co., 280 So.2d 874 (La.App.1973) (crane negligently repaired when policy in effect, collapsed after; no coverage since no property damage during policy period); Moss v. Shelby Mut. Ins. Co., 105 Mich.App. 671, 308 N.W.2d 428 (1981) (deck negligently constructed during policy period, damage after; majority rule is accident occurs when injury occurs rather than date of negligent act); Reliance Ins. Co. v. Arneson, 322 N.W.2d 604 (Minn.1982) (malpractice claims; not negligent until acts or omissions result in damage). By analogy then, we hold that the “occurrence” which triggers the policy coverage occurs where the actual damage happens.

Considering the pleadings in both this case and the underlying suit, as well as case law, it cannot be said that the trial court erred. The court properly refused to accept as true conclusory statements and unjustified inferences made by Keystone. Further, the court properly followed the case law in Pennsylvania and the better reasoned opinions of the majority of jurisdictions when it held as a matter of law that the place of damages was the place at which to determine the policy territory. As no damages could be shown from the pleadings to have arisen in the United States, its territories or possessions, or Canada, the trial court did not err in granting judgment for appellee Reliance.

Order affirmed.

      . Keystone also argues that damage to the equipment could have occurred in Philadelphia, and so the claim would come under the policy coverage. We must agree with appellee’s construction of the policy. As appellee points out, the policy denies coverage to the named insured's products, that is, those products manufactured, sold handled or distributed by appellant.

        . The sale of a defective article takes place during the policy period, but the defect in the article sold manifests itself with resulting damages only after policy expiration. See, e.g., Silver Co. v. National Union Fire Insurance Co., 246 Or. 398, 423 P.2d 944 (1967).

      . A defective product is sold or negligently handled on the premises, but the defect or negligence does not manifest itself until the article has been removed from the premises and then the event occurs which causes the injury. See, e.g., Smith v. Maryland Casualty Co., 246 Md. 485, 229 A.2d 120 (1967).

      . Insured installs or services a piece of equipment and the job is done in an improper manner. Injury results after the completion of the policy period. See, e.g., Neumann v. Wisconsin National Gas Co., 27 Wis.2d 410, 134 N.W.2d 474 (1965).


author: DEL SOLE, Judge:

text:
    535 A.2d 656
    Alexander LUPINSKI and Carol Lupinski, His Wife, Appellees, v. HERITAGE HOMES, LTD., Appellant, v. William A. BROJACK Individually and t/a Brojack Lumber Company, Appellee (Two Cases).
    Superior Court of Pennsylvania.
    Argued Sept. 15, 1987.
    Filed Jan. 11, 1988.

      John J. Brier, Scranton, for appellant.
    Patrick C. Carey, Scranton, for Lupinski, appellees.
    Jan Kuha, Scranton, for Brojack, appellees.
    Before McEWEN, OLSZEWSKI and DEL SOLE, JJ.
   DEL SOLE, Judge:

In 1979, Appellees, the Lupinskis, contracted with Appellant, Heritage Homes, for the construction of a home. Thereafter, Heritage entered into an agreement with Appellee, Brojack Lumber Company, by which Brojack would supply Heritage with the lumber necessary for the construction of the home. Shortly after moving into the house, the Lupinskis filed a complaint against Heritage alleging that the lumber which was used in building the dwelling was infested with wood-boring insects. The complaint also stated that the insects were in the wood at the time of construction. Subsequently, Brojack was joined as an additional defendant by Heritage by way of an original defendant’s complaint. The complaint averred that Brojack was jointly and severally liable with Heritage, or was liable over to Heritage, due to the fact that Brojack had supplied all of the lumber used in the construction of the house.

Following a jury trial, the jury returned a verdict in the Lupinskis’ favor and against Heritage for $36,522.35. In addition, the verdict found in Heritage’s favor and against Brojack in the amount of $4,664.00. Heritage filed timely motions for a judgment n.o.v. and a new trial which were denied by the trial court. Judgment was entered on the verdict in favor of the Lupinskis and against Heritage on February 2, 1987. Judgment was entered on the verdict in favor of Heritage and against Brojack on February 17, 1987. These timely appeals followed.

Heritage presents three issues on appeal:

1. Whether the doctrine of strict liability under the Restatement (Second) of Torts § 402A applies to a claim for loss of market value of the dwelling itself caused by the defective lumber;
2. Whether the trial court misstated the law on indemnification when it instructed the jury members that they could find Brojack liable over to Heritage for a lesser amount than that for which Heritage was liable to the Lupinskis; and,
3. Whether the proper measure of damages where a defect can be cured is the cost of curing the defect, rather than the loss of market value of the property.

The thrust of Heritage’s argument with respect to the applicability of § 402A of the Restatement (Second) of Torts is that the doctrine of strict liability does not apply to a claim for loss of market value of the product itself which was caused by a defective part. At trial, the Lupinskis introduced expert testimony that the market value of the dwelling upon resale was drastically reduced inasmuch as potential buyers would have to be alerted that the house was at one time infested with wood-boring insects. The experts opined that this was the case even though the Lupinskis had had the dwelling fumigated of the insects and received a three-year guarantee against reinfestation. Heritage argues that the Lupinskis’ claim for loss of market value was economic in nature and that § 402A does not provide recovery for such damages. Instead, Heritage alleges, the jury should have been only permitted to consider and assess damages under the theories of breach of contract and/or warranties.

Section 402A was adopted by our Supreme Court in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). This section of the Restatement (Second) of Torts provides:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

(Emphasis supplied).

We agree with Heritage’s position that the damages which the Lupinskis alleged during trial were not recoverable pursuant to § 402A. In Johnson v. General Motors Corp., 349 Pa.Super. 147, 502 A.2d 1317 (1986), we discussed the difference between recovery under § 402A and under warranty theories covered by the UCC. We pointed out in Johnson that the doctrine of products liability was developed primarily so that consumers could be compensated for personal injury and property damage caused by defective products. By comparison, the UCC provides for losses on bargains and related injuries resulting from failure of the product to meet the expectations of the buyer where the seller’s express or implied warranties have been breached. Id., 349 Pa.Superior Ct. at 156, 502 A.2d at 1321, citing Industrial Uniform Rental Co., Inc. v. International Harvester Co., 317 Pa.Super. 65, 74, 463 A.2d 1085, 1089 (1983). We concluded in Johnson that the appellant’s complaint had to be read with a view to determining whether it stated that the allegedly defective product was “unreasonably dangerous (thus implicating tort law) or whether is [was] simply unfit for its intended usé or failed to meet appellant’s expectations (thus implicating warranty law).”

This approach is consistent with the rule established in Industrial Uniform, supra, which held:

[w]here defective design, manufacture and sale of a product is alleged, where there is nothing in the record to indicate that the defect is a condition potentially dangerous to persons or to property, and where the purported defect results in progressive deterioration of the product itself, the buyer’s cause of action for its economic losses against the seller is in breach of warranty under the UCC.

Id., 317 Pa.Superior Ct. at 73, 463 A.2d at 1093.

Parenthetically, we note that the UCC does not govern recovery for breach of implied warranty with respect to buildings. See 13 Pa.C.S.A. § 2105 (“goods” defined under the UCC). However, Pennsylvania has “numbered among the first jurisdictions acknowledging an implied warranty of habitability, as well as an implied warranty of reasonable workmanship, in contracts whereby builder-vendors sold newly constructed houses.” Tyus v. Resta, 328 Pa.Super. 11, 476 A.2d 427, 431 (1984). Compare 13 Pa.C.S.A. § 2314 (UCC implied warranty of merchantability provisions). Thus, although Johnson and Industrial Uniform, supra, were decided under the UCC, we find that the same principles discussed in those cases control the disposition of the case at bar.

Upon review of the record, we find that the Lupinskis failed to present evidence on damages which would have been recoverable under § 402A. The vast majority of evidence offered by the Lupinskis centered upon the devastating effect the infestation had on the marketability of the house. The Lupinskis offered expert testimony by a realtor and an appraiser who opined that the house’s resale value plummeted as a result of the taint associated with a dwelling that had once been infested with wood-boring insects. (N.T., 1/15/86, 21, 37). However, we are of the opinion that damages to the marketability of this house are clearly economic in nature since they involve allegations of inadequate value and consequent loss of profits. See Industrial Uniform, supra, 317 Pa.Superior Ct. at 67, n. 2, 463 A.2d at 1086, n. 2. Such economic harms are properly recoverable under contract theories of breach of implied warranty.

We conclude, therefore, that the trial court should not have instructed the jury on products liability. Insofar as this instruction was erroneously included in the jury charge to Heritage’s possible prejudice, we must remand the instant case for a new trial. We are cognizant that the jury could have reached its verdicts on any one of the other instructions on contracts which were given by the trial court. Nevertheless, “[i]f we are able to conclude that an erroneous charge might have prejudiced the appellant, we must grant a new trial, even though we cannot ascertain the extent to which the error influenced the jury.” Gallo v. Yamaha Motor Corp., U.S.A., 363 Pa.Super. 308, 321-322, 526 A.2d 359, 366 (1987) (Emphasis supplied).

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

      . The appeals from the two judgments were consolidated on May 7, 1987.

      . In Industrial Uniform, we defined an action alleging “economic harm" as ‘an action brought to recover damages for inadequate value, costs of repair and replacement of the defective product, or consequent loss of profits-without any claim of personal injury or damage to other property. Id., 317 Pa.Superior Ct. at 67, n. 2, 463 A.2d at 1086, n. 2, quoting Note, Economic Loss in Products Liability Jurisprudence, 66 Colum.L.Rev. 917, 918 (1966).

      . We are mindful that there exists case law in Pennsylvania which suggests that a building is not a “product” for § 402A purposes. See Cox v. Shaffer, 223 Pa.Super. 429, 302 A.2d 456 (1973) (a silo found not to be a product within the intent and meaning of § 402A). However, we need not decide that question insofar as the Lupinskis have failed to present evidence of damages recoverable under any circumstances within the realm of § 402A actions.

      . Given our disposition of the first issue, we need not consider the remaining arguments raised on appeal.