text:
    518 A.2d 865
    COMMONWEALTH of Pennsylvania v. William GLASSMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 28, 1986.
    Decided Dec. 15, 1986.

      Elliot B. Platt, Philadelphia, for appellant.
    Leonard Deutchman, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and ROWLEY and BECK, JJ.
   CIRILLO, President Judge:

This is an appeal from a judgment of sentence of the Court of Common Pleas of Philadelphia County. Appellant, William Glassman, was convicted of reckless driving and driving without lights to avoid identification and attempting to elude police and was sentenced to pay a fine and court costs totaling $497.00. After the denial of his post-trial motions he appealed to this Court. We affirm.

On January 4, 1985 at 1:40 A.M., police officer Frank Boyle observed a red Honda driving on the wrong side of Warden Drive in Philadelphia. The car disregarded a stop sign and Officer Boyle pulled his vehicle behind the Honda and turned on his dome light. Instead of pulling over, the Honda sped away, ignoring stop signs and speed limits. The driver of the car turned off his headlights as he attempted to out-run the police car which was in pursuit with its siren on. Officer Boyle saw the Honda pull into a driveway and garage in the 3400 block of Queen Lane. The officer confronted the appellant as he walked from his garage to his house. Appellant denied that he had been involved in the incident and insisted that Officer Boyle must have lost sight of the perpetrator’s car during the chase. The officer took appellant to the police station where he was detained for a period of time between one and three hours, issued a citation and released. The traffic court disbelieved appellant’s assertion that he was not the driver of the car which the officer had observed and chased. On appeal, the Court of Common Pleas reached the same conclusion.

Appellant presents three issues for our review: (1) whether appellant was arrested illegally, rendering the citations invalid; (2) whether the evidence at trial was sufficient to support a finding that appellant was the driver of the car in question; (3) whether the evidence of intent was sufficient to support a finding of guilt.

Appellant claims that his conviction must be reversed because his arrest was illegal since it violated the procedural requirements mandated by the Rules of Criminal Procedure. The Commonwealth claims that appellant was detained for a short period of time but was never arrested. We find it unnecessary to resolve this issue. Even assuming that the appellant was placed under arrest, his subsequent conviction is proper and need not be reversed.

Appellant was charged with reckless driving, 75 Pa.C.S.A. § 3714 and driving without lights to avoid identification or arrest, 75 Pa.C.S.A. § 3734, both of which are summary offenses. The Rules of Criminal Procedure, at that time, provided in pertinent part:

A. Criminal Proceedings in summary cases shall be instituted in the following manner:
(1) Traffic Offenses (other than parking)
(c) For a summary offense under the Vehicle Code, the defendant may be arrested without a warrant only as provided in the Vehicle Code.

Pa.R.Crim.P. 51 A.(l)(c) (rescinded 7/1/86).

The relevant section of the Vehicle Code is § 6304. It provides:

Authority to arrest without warrant
(a) Pennsylvania State Police. — A member of the Pennsylvania State Police who is in uniform may arrest without a warrant any person who violates any provision of this title in the presence of the police officer making the arrest.
(b) Other police officers. — Any police officer who is in uniform may arrest without a warrant any nonresident who violates any provision of this title in the presence of the police officer in making the arrest.
(c) Other powers preserved. — The powers of arrest conferred by this section are in addition to any other powers of arrest conferred by law.

Assuming, arguendo, that appellant’s detention constituted an “arrest”, it is apparent that he was not arrested by a member of the Pennsylvania State Police nor was he a nonresident, nor has the Commonwealth shown that any other power of arrest applies to the situation. Therefore, § 6304 did not authorize the police to arrest appellant without a warrant. The police should not have arrested appellant but should only have issued him a citation. See Pa.R.Crim.P. 51 A.(l)(b) (rescinded 7/1/86).

Appellant claims that this apparent statutory violation mandates reversal of his convictions. We disagree. In support of his argument, appellant cites the following cases: Commonwealth v. Hatfield, 307 Pa.Super. 454, 453 A.2d 671 (1982); Commonwealth v. Stahl, 296 Pa.Super. 507, 442 A.2d 1166 (1982); Commonwealth v. Jonnet, 265 Pa. Super. 315, 401 A.2d 1228 (1979); Commonwealth v. Shelton, 262 Pa.Super. 82, 393 A.2d 1022 (1978). In Jonnet, this Court reversed a summary conviction based upon a violation of the Vehicle Code because of a substantive defect in the citation issued to the defendant. The court followed the line of cases cited above, which hold that in summary prosecutions, the rules of procedure must be strictly complied with or the defendant’s arrest is invalid. Id., 265 Pa.Superior Ct. at 316-19, 401 A.2d at 1228-30. However, at the time each of these cases was decided, the controlling Rule of Criminal Procedure provided in pertinent part:

(b) Substantive Defects:

If a complaint, citation, summons or warrant contains a substantivé defect, the defendant shall be discharged unless he waives the defect.

Pa.R.Crim.P. 150(b) (amended 7/1/82).

Therefore, under Pennsylvania law effective at the time, the Jonnet court was required only to determine whether or not the defect at issue was “substantive” or informal. The court decided that it was substantive and reversed the defendant’s conviction. However, Pennsylvania law has since been changed. The law in effect at the time the case before us arose, provided:

A defendant shall not be discharged nor shall a case be dismissed because of a defect in the form or content of a complaint, citation, summons, or warrant, or a defect in the procedures of this chapter, unless ... the defect is prejudicial to the rights of the defendant.

Pa.R.Crim.P. 70 (rescinded 7/1/86).

The comments to the Rule make clear that it was intended to eliminate the substantive/informal distinction. Instead, courts were instructed to inquire whether the defendant’s rights were prejudiced. If no actual prejudice was present, the court was no longer permitted to discharge the defendant or dismiss the case. See Pa.R.Crim.P. 70 comment (“This rule is intended to clarify when a defendant should be discharged or a case dismissed because of a defect; it eliminates disputes as to what is an informal defect or a substantive defect. As a condition of relief regardless of whether the defect is in form, content or procedure, the court or issuing authority must determine that there is actual prejudice to the rights of the defendant.”). Since the line of cases cited by the appellant were adjudicated before Pennsylvania abandoned the substantive/informal distinction, those cases are inapplicable to the instant case. The charges against the appellant may be dismissed only if he can demonstrate that his illegal arrest actually prejudiced his rights. See former Pa.R.Crim.P. 70. This we conclude appellant has failed to do.

Appellant has not demonstrated any way in which he was prejudiced by Officer Boyle’s detention of him. Appellant was well aware of the charges filed against him and he certainly had ample time before trial to prepare a defense. Appellant asserts that his arrest in violation of the procedural rules constituted actual prejudice. We must reject this claim. If we were to accept appellant’s argument we would render Rule 70 a nullity. Rule 70 applied only in summary cases where a defect in form, content or procedure had occurred. Once such a defect occurs, the proceedings are in violation of the criminal rules but it is Rule 70 which informs courts when such a violation is fatal to the prosecution.

Under appellant’s interpretation, a procedural violation would itself constitute prejudice. Therefore, all procedural violations would be fatal to further prosecution and there would be no need for a rule distinguishing fatal from non-fatal defects. Yet, Rule 70 expressly states that it was enacted in order to guide courts in making that very distinction. If appellant’s position were adopted, the Rule’s requirement of actual prejudice would be mere surplusage because it would mandate dismissal whenever there was a defect. Appellant’s interpretation of the Rule would thus have the effect of causing many more dismissals than the prior law it replaced. Yet, this is the very opposite effect of that intended by the drafters of the Rule. Therefore, we cannot accept appellant’s proferred interpretation of Rule 70. We find that we agree with the conclusion of the trial court: “Defendant has failed to allege nor can the Court conceive of what prejudice inured to the defendant as a result of the alleged defect in the procedures in this case.”

Appellant also argues that the evidence produced at trial was insufficient to establish that he was the person driving the car observed and followed by Officer Boyle. Appellant claims that the policeman lost sight of the car he was originally following and mistakenly assumed that the appellant was the culprit because the appellant happened to arrive home at the same time the incident occurred.

It is axiomatic that on appeal, the evidence is viewed in the light most favorable to the Commonwealth as the verdict winner. Commonwealth v. Stoyko, 504 Pa. 455, 462, 475 A.2d 714, 718 (1984). Viewed in this light, the evidence demonstrates that Officer Boyle attempted to pull appellant’s car over but that appellant refused to comply and sped away. The officer chased the appellant’s vehicle, never losing sight of it. He watched as appellant pulled the car into his driveway and garage. Officer Boyle then confronted appellant as he walked from the garage to his home. Officer Boyle never lost sight of the car he was following. The evidence also demonstrates that he watched the appellant exit the car and that the appellant was the only person inside the vehicle. Therefore, the evidence clearly supports a finding that the appellant was the driver of the vehicle Officer Boyle chased on January 4, 1985. As the trial court stated, a contrary conclusion “is absurd”.

Finally, appellant claims that the evidence of intent is insufficient to support a finding of guilt. Section 3734 of the Vehicle Code states that a person is guilty of “driving without lights to avoid identification or arrest” when he turns off his car lights “for the purpose of avoiding identification or arrest____” 75 Pa.C.S.A. 3734. Appellant turned his vehicle lights off after Officer Boyle attempted to pull him over. At the same time he turned off the car lights appellant also sped away from the policeman. Intent may be proven by circumstantial evidence. Commonwealth v. Randall, 287 Pa.Super. 479, 482, 430 A.2d 991, 993 (1981). Viewed in the light most favorable to the Commonwealth, the evidence shows that appellant turned off his lights as part of an intentional attempt to evade Officer Boyle’s chase. Thus, this same evidence also supports appellant’s conviction for willfully attempting to flee the police. See 75 Pa. C.S.A. § 3733(a).

The evidence is also sufficient to support a finding that appellant was reckless and guilty of a violation of 75 Pa. C.S.A. § 3714. Appellant claims that the Commonwealth has failed to show that his actions endangered anyone. This assertion, even if true, is irrelevant. Actual injury is not an element of reckless driving. Commonwealth v. Schmitzer, 286 Pa.Super. 138, 145, 428 A.2d 610, 614 (1981). The Commonwealth need only demonstrate that a defendant’s actions showed a “careless disregard of the rights or safety of others.” Commonwealth v. Humphry, 216 Pa.Super. 131, 134, 264 A.2d 434, 435 (1970). Appellant drove his car on the wrong side of the street, through stop signs, with no lights on and at high rates of speed. This total disregard for all rules of safety exhibits a shocking indifference to persons or other vehicles which might have happened by during appellant’s flight. It also demonstrates a careless disregard for all of the vehicles parked along the streets through which Officer Boyle chased the appellant. The Commonwealth has met the burden of proof required to convict appellant.

For the foregoing reasons, the judgment of sentence is affirmed.

      . We note that appellant's constitutional rights were not violated even if the detention constituted an arrest. The Constitution does not prohibit a police officer from arresting a suspect without a warrant for crimes committed in his presence. See United States v. Watson, 423 U.S. 411, 420, 96 S.Ct. 820, 826, 46 L.Ed.2d 598 (1976).


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    518 A.2d 1213
    Peter H. SHAFFER, Administrator of the Estate of Gail F. Jakovac and Trustee Ad Litem of Keirsten Leigh Jakovac and Gerald Jakovac v. PENNSYLVANIA ASSIGNED CLAIMS PLAN INSURANCE COMPANY OF NORTH AMERICA and Nationwide Mutual Insurance Company. Appeal of NATIONWIDE MUTUAL INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Jan. 29, 1986.
    Filed Dec. 4, 1986.

      Lee C. McCandless and James E. Kerr, Butler, for appellant.
    William D. Kemper, Butler, for Shaffer, appellee.
    Stephen R. Mlinac, Pittsburgh, for Pa. Assigned, appellee.
    Before CIRILLO, President Judge, and DEL SOLE and BECK, JJ.
   BECK, Judge:

Appellees Gerald Jakovac (Gerald) and Peter H. Shaffer filed claims against Nationwide Mutual Insurance Company (Nationwide) and Insurance Company of North America (INA) under the No-fault Motor Vehicle Insurance Act (No-fault Act) and the Uninsured Motorist Act. The court granted INA’s motions for summary judgment, and INA was released from the case. Appellant Nationwide was found liable to the Appellees.

Nationwide appeals the order granting summary judgment to INA and the judgment awarding damages in favor of Gerald Jakovac, Keirsten Jakovac, and the estate of Gail Jakovac. For the following reasons we quash the appeal as to the granting of summary judgment to INA and otherwise reverse in part and affirm in part the judgment of the Court of Common Pleas of Butler County.

The pertinent facts underlying this appeal are undisputed. On November 11, 1979, Gerald was driving with his wife Gail as a passenger in Gail’s uninsured 1977 Toyota automobile when the car struck a bridge abutment. Gerald was injured, and Gail died as a result of injuries sustained in the one-car accident. At the time of the accident, Gerald owned a 1977 Ford pickup truck which was insured by Nationwide under a business auto policy. The only motor vehicle designated in the business auto policy as a “covered automobile” was Gerald’s 1977 Ford pickup truck, and Gerald was listed as the sole policyholder of the business auto policy. As a result of the accident, suit was filed on behalf of Gerald, Gail’s estate, and Keirsten (Gerald and Gail’s daughter) against the Pennsylvania Assigned Claims Plan, INA as the assignee insurer under the assigned claims plan of the No-fault Act, and Nationwide as the insurer under Gerald’s business auto policy.

All of the parties to the suit filed motions for summary judgment in their favor on the issues of liability raised by the suit. In the trial judge’s order of July 23,1982, summary judgments were granted as follows:

(1) for Gerald and against Nationwide on Gerald’s no-fault claim, plus interest and attorney’s fees;

(2) for Nationwide and against Gerald on Gerald’s uninsured motorist claim;

(3) for Keirsten and against Nationwide on Keirsten’s no-fault claim, plus interest and attorney’s fees;

(4) for Nationwide and against Keirsten on Keirsten’s uninsured motorist claim;

(5) for Nationwide and against Gail’s estate for the estate’s no-fault claim;

(6) for Gail’s estate and against Nationwide on the estate’s uninsured motorist claim, and

(7) for INA and against Gerald, Keirsten, and Gail’s estate on all claims.

In summary, INA was released from all claims to all parties. Nationwide’s liability to Gerald and Keirsten for no-fault benefits and Nationwide’s liability to Gail’s estate for uninsured motorist benefits were to be determined by the trial court. After a hearing, an order was issued by the trial court on September 17, 1984, assessing damages against Nationwide on the respective claims.

Nationwide then filed a timely motion for post-trial relief asserting, inter alia, that the trial court had erred in (1) ruling that Nationwide, rather than INA as the assigned claims plan insurer, was the appropriate obligor; (2) failing to recognize the No-fault Act’s statute of limitations as a bar to the claim in the amended complaint for survivor’s loss; (3) assessing attorney’s fees against Nationwide; (4) refusing Nationwide a setoff against Gail’s estate under section 501 of the No-fault Act for basic loss benefits payable by Nationwide, and (5) ordering payment of uninsured motorist benefits to Gail’s estate since the uninsured vehicle was owned by Gail, the decedent. Nationwide’s motion for post-trial relief was denied, and judgment was entered against Nationwide. Thereafter, Nationwide appealed.

In this appeal, Nationwide reiterates the arguments raised in its motion for post-trial relief. First, Nationwide contends that the trial court improperly adjudged Nationwide, rather than INA, liable as the obligor for the no-fault claims of Gerald and Keirsten and for the uninsured motorist claim of Gail’s estate. In essence, Nationwide contests the propriety of the trial court’s July 23, 1982, order granting summary judgments for INA on all the no-fault and uninsured motorist claims presented on behalf of Gerald, Keirsten, and Gail’s estate. Initially, we consider whether Nationwide has timely appealed the issues concerning the summary judgments in favor of INA since the timeliness of an appeal affects our court’s jurisdiction. Murphy v. Brong, 321 Pa.Super. 340, 468 A.2d 509 (1983).

Pennsylvania Rule of Appellate Procedure 903(a) specifies that a notice of appeal is timely if it is filed within thirty days after entry of the order being appealed. Nationwide’s notice of appeal was filed on January 11,1985, approximately two and one-half years after the trial court granted summary judgments to INA. However, Nationwide asserts that the trial court’s July 23, 1982, order granting INA summary judgments was not a final, appealable order. Nationwide maintains that only the September 17, 1984, judgment entered against it was properly appealable as a final and duly entered order in the case. Inasmuch as Nationwide’s appeal was filed within thirty days of the entry of the September 17, 1984, judgment, Nationwide argues that its appeal is timely. See Pa.R.A.P. 301. We disagree.

It is axiomatic that with the exception of certain enumerated classes of interlocutory orders not germane to this appeal, an appeal lies only from a final order. Pa.R. A.P. 341; Pa.R.A.P. 1701(b)(6); Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985); Murphy. An order is final if it ends the litigation, disposes of the entire case, or effectively puts a party out of court by denying him the opportunity to present the merits of the case to the court. Fried. Hence, for example, an appeal cannot be taken from a court order which merely determines that a particular party is liable to pay damages, but the appeal must, instead, be taken from the entry of judgment which assesses the amount of damages payable by the liable party and thereby finally disposes of the entire case. Brown v. State Farm Mutual Automobile Insurance Co., 326 Pa.Super. 489, 474 A.2d 346 (1984); Navarro v. Ohio Casualty Insurance Co., 295 Pa.Super. 151, 441 A.2d 394 (1982); Inselberg v. Employers Mutual Companies, 291 Pa.Super. 406, 435 A.2d 1290 (1981); see Stotsenburg v. Frost, 465 Pa. 187, 348 A.2d 418 (1975) (Roberts, J., dissenting), reh’g denied, December 30, 1975. This axiom concerning appeals from final orders has been codified in Pennsylvania Rule of Civil Procedure 1035(b) which states that “[a] summary judgment, interlocutory in character, may be rendered on the issues of liability alone although there is a genuine issue as to the amount of damages.” See, e.g., Brown; Navarro; Inselberg.

In the case sub judice, the trial court’s July 23, 1982, order released INA from the case and did not apportion any liability against INA. Accordingly, there was not an award of damages against INA to reduce to judgment. See Brown; Navarro; Inselberg; Pa.R.C.P. No. 1035(b). The granting of summary judgments to INA constituted a judicial determination that as a matter of law Gerald, Keirsten, and Gail’s estate did not have a cause of action on which they could recover against INA. See, e.g., United States National Bank in Johnstown v. Johnson, 506 Pa. 622, 487 A.2d 809 (1985) (order sustaining preliminary objections in the nature of a demurrer is a final, appealable order which is neither required nor permitted to be reduced to judgment); Miller v. Hurst, 302 Pa.Super. 235, 448 A.2d 614 (1982) (order refusing to remove a compulsory nonsuit is a final, appealable order which is not required to be reduced to judgment). Therefore, that portion of the July 23 order which granted INA summary judgments terminated the litigation against INA and comprised a final, appealable order. Rossi v. Pennsylvania State University, 340 Pa.Super. 39, 489 A.2d 828 (1985) (order granting summary judgments as to some defendants in multiple-defendant suit is a final, appealable order as to those defendants released from litigation); see Dash v. Wilap Corp., 343 Pa.Super. 584, 495 A.2d 950 (1985) (order dismissing a complaint as to one defendant in a multiple-defendant suit is a final, appeal-able order since it ends litigation with respect to the defendant against whom the complaint was dismissed).

Under Pa.R.A.P. 903(a), that part of the trial court’s order granting INA summary judgments was final and appealable within thirty days of the order’s entry. “The date of entry of an order in a matter subject to the Pennsylvania Rules of Civil Procedure [is] the day on which the clerk makes the notation in the docket that notice of entry of the order has been given as required by PA.R. Civ.P. 236(b).” Pa.R.A.P. 108(b). The trial court docket in the present case clearly shows that on July 26, 1982, copies of the trial court’s July 23 order and accompanying memorandum opinion were sent to the parties’ attorneys of record in accordance with Pa.R.C.P. No. 236. Consequently, in the instant case, July 26, 1982, is the order entry date which commenced the running of the thirty-day period for appealing the granting of summary judgments in favor of INA. Since the granting of summary judgments in favor of INA required no further action by the court as to INA, Nationwide should have filed its appeal as to INA within thirty days of July 26, 1982 (the date of entry of the summary judgments) and should not have waited until the matters among the other parties were finally litigated and the resolution of those matters was reduced to judgment.

Being well outside the applicable thirty-day appeal period, Nationwide’s notice of appeal filed on January 11, 1985, is untimely as to the issues involving INA’s summary judgments. Therefore, we quash that portion of Nationwide's appeal which concerns INA’s liability for any no-fault and uninsured motorist claims.

We note that the record reveals that appellees-plaintiffs appealed the July 23, 1982 order. The appeal was quashed on Nationwide’s motion. As to the appellees-plaintiffs, the appeal was clearly interlocutory. Nationwide, as subsequent case law shows, was required to appeal the July 23, 1982 order as it related to INA. It did not appeal, but instead moved to quash the appeal of appellees-plaintiffs. At that point, it was clear, given the policy and decisions of the No-fault Act, that Nationwide would be liable for some amounts to plaintiffs.

In any event, Nationwide cannot avoid liability. Nationwide contends that its policy with Gerald covered only his 1977 Ford truck and not Gail’s 1977 Toyota. Therefore, it contends, it is not liable for any amount resulting from the accident. Under different facts, we might agree. Gerald, however, was driving the Toyota at the time of the accident. The Toyota was not insured. It is the intent of the No-fault Act to establish at reasonable cost to the purchaser of insurance a system of prompt and adequate basic loss benefits for motor vehicle accidents. Under these facts, the security applicable to an injury to an insured is the security covering the victim. 40 P.S. § 1009.204(a)(2). Thus, Gerald as a victim in this accident is covered by his Nationwide policy. In this respect, we note that one of the essential elements of the Act is that benefits for injuries arising out of a motor vehicle accident generally will be paid on a first party basis by the carrier for the insured. Shrager, Pennsylvania No-fault Motor Vehicle Insurance Act § 1:15.3 (1979). The security follows the person and not the vehicle. Id. This statement, of course, is not one admitting of no exception. For example, an employee in an accident while driving or occupying an employer’s vehicle collects on the policy covering that vehicle. 40 P.S. § 1009.204(a)(1). We, however, deem it appropriate under these facts that Gerald is covered by the Nationwide policy.

It is equally appropriate that Gail’s estate and Keirsten are deemed to be covered by the Nationwide policy. An insured, for purposes of Section 204(a)(2), includes a spouse and a minor in the custody of a named insured if they are not identified by name as an insured in any other policy and are in residence with the named insured in the same household. 40 P.S. 1009.103. Gail and Keirsten come within the terms of this definition. Therefore, they are covered by the policy and Nationwide is the obligor under these facts.

Nationwide argues that this case is controlled by a decision of a panel of this court in Insurance Company of North America v. Hippert, 354 Pa.Super. 333, 511 A.2d 1365 (1986). In Hippert, this court gave effect to an exclusion clause in determining that the insurer which insured a vehicle owned by a relative living with the victim was not required to pay no-fault benefits to the victim if that insurer did not insure the vehicle owned by the relative and operated by the victim.

We conclude that Hippert is inapposite to this case. The Nationwide policy does not contain the exclusionary language found in the policy in Hippert.

Nationwide argues alternatively that there is an exclusionary term in the policy that should be given effect. It claims that its temporary substitute automobile coverage term implicitly excludes coverage of Gail’s Toyota. This term provides that a temporary substitute automobile that is covered by the Nationwide policy is one which:

... is an auto used temporarily to replace a covered auto while it is being serviced or repaired or while it is broken down or damaged. You must have permission to use the temporary auto from its owner, and it cannot be owned by you or anyone who lives with you.

We conclude that it is impermissible to address this question because Nationwide denies coverage on this basis for the first time on appeal. In an answer in an action on an insurance policy, the defendant must state all material facts upon which he relies for a defense specifically and with sufficient detail. 5 Standard Pennsylvania Practice 2d § 27:52 (1982). In its preliminary objections and answer to the complaint, Nationwide averred only that the 1977 Toyota was not covered. It did not raise this particular ground as a reason to exclude coverage. As such, this defense was waived and it cannot be considered as it is raised for the first time on appeal. Dilliplane v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); Pa.R.C.P. 1032; Pa.R.A.P. 302.

Nationwide next contends that the trial court erred in not holding that Keirsten’s claim for survivor’s loss benefits was barred by the statute of limitations provided in section 106(c)(2) of the No-fault Act. Section 106(c)(2) states in pertinent part that “[i]f no-fault benefits have not been paid to the deceased victim or his survivor or survivors, an action for survivor’s benefits may be commenced not later than one year after the death or four years after the accident from which death results, whichever is earlier.” The parties do not dispute that the one-year statute of limitations applies to the present case. However, the parties disagree whether Keirsten’s survivor’s loss claim was brought within the statutory period.

The Jakovacs’ automobile accident occurred on November 11, 1979. Appellees began their action against Nationwide on November 10, 1980, by filing a praecipe for a writ of summons as permitted by Pa.R.C.P. No. 1007(1). On April 22, 1981, appellees filed a complaint against INA and Nationwide. The complaint alleged several no-fault and uninsured motorist claims but did not state a cause of action for survivor’s benefits against Nationwide. On June 12, 1981, Keirsten filed an amended complaint in which, for the first time, she averred survivor’s loss claims against Nationwide. Under the heading of New Matter in an amended answer, Nationwide pled the statute of limitations as a defense to Keirsten’s survivor’s loss claims. Pa.R.C.P. No. 1030. The trial court awarded Keirsten the statutory maximum of $5,000 in survivor’s loss benefits. 40 P.S. § 1009.202(d).

Keirsten maintains that her survivor’s loss claim was timely raised because the statute of limitations relevant to such claims was tolled by the filing of the praecipe for a writ of summons used to commence the no-fault action against Nationwide. Nationwide insists that the survivor’s loss claim was asserted well after the expiration of the one-year statute of limitations and should have been disallowed. For the following reasons, we agree with Nationwide’s position and reverse the trial court’s judgment awarding Keirsten survivor’s loss benefits and interest thereon.

Our resolution of this issue is controlled by our decisions in Boarts v. McCord, 354 Pa.Super. 96, 511 A.2d 204 (1986), Sanchez v. City of Philadelphia, 302 Pa.Super. 184, 448 A.2d 588 (1982), and Marzella v. King, 256 Pa.Super. 179, 389 A.2d 659 (1978), which are procedurally identical to the case sub judice. In Boarts, Sanchez, Marzella, and the present case, suit was begun by the filing of a praecipe for a writ of summons only days before the expiration of the respective statutes of limitations governing the cases. In each case, a complaint was filed several months after the filing of the summons praecipe, and an amendment to the complaint was later attempted.

In accordance with Pa.R.C.P. No. 1007(1), an action may be duly commenced by filing with the prothonotary a praecipe for a writ of summons. Robinson v. Trenton Dressed Poultry Co., 344 Pa.Super. 545, 496 A.2d 1240 (1985). The filing of the praecipe tolls the statute of limitations where the filing party does not prevent service of the writ upon the adverse party. Robinson; Wible v. Apanowicz, 306 Pa.Super. 262, 452 A.2d 545 (1982); see Sanchez; Note following Pa.R.C.P. No. 1010 (recodified as Pa.R.C.P. No. 401(b) effective January 1, 1986). Therefore, in the instant case, as in Boarts, Sanchez, and Marzella, the praecipe for a writ of summons tolled the applicable statute of limitations so that the complaint was timely filed with regard to the causes of action raised therein. That is, the cause of action presented in appellees’ original complaint were not barred by the statute of limitations. See Boarts; Sanchez; Marzella.

We now consider whether the statute of limitations barred the amendment to Keirsten’s complaint. The amendment requested survivor’s loss benefits for which claim the statute of limitations expired one year after Gail’s death. 40 P.S. § 1009.106(c)(2). As we explained in Sanchez, “[t]he general rule is that an amendment will not be permitted after the running of the statute of limitations if it introduces a new cause of action,____but if the amendment would only amplify or enlarge the existing cause of action, it will be permitted.” Id. 302 Pa.Super. at 185, 448 A.2d at 589; Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974); Walder v. Lobel, 339 Pa.Super. 203, 488 A.2d 622 (1985); Asper v. Haffley, 312 Pa.Super. 424, 458 A.2d 1364 (1983); John Goffredo and Sons, Inc. v. S.M.G. Corp., 300 Pa.Super. 112, 446 A.2d 255 (1982), reargument denied, June 21, 1982.

Thus, to determine whether the amendment was barred by the one-year statute of limitations, we must determine whether or not it raised a cause of action not contained in Keirsten’s original complaint. The original complaint averred against Nationwide causes of action for uninsured motorist benefits, replacement services loss caused by Gerald’s injuries and allowable medical expenses for Gerald’s personal injuries. The amended complaint presented a cause of action against Nationwide for survivor’s loss benefits related to Gail’s death.

The phrase “cause of action” defies succinct definition. Kuisis; Sanchez. It

is not susceptible of any single definition to be applied in all types of cases____ At times and in certain contexts, it is identified with the infringement of a right or the violation of a duty. At other times and in other contexts, it is a concept of the law of remedies____ Another aspect reveals it as ... the group of operative facts out of which a grievance has developed.

Emert v. Larami Corp., 414 Pa. 396, 400 n. 4, 200 A.2d 901, 903 n. 4 (1964). In the context of amended pleadings, an amendment has generally been deemed to have stated a new cause of action if the amendment rests on a different theory, basis for recovery, or relationship between the parties than did the original pleading. Walder; John Gof-fredo and Sons, Inc.

We conclude that Keirsten's amended complaint raised a new cause of action against Nationwide. The request in the amended complaint for survivor’s loss benefits resulting from Gail’s death was premised on a distinct theory, necessitated different proof, and sought another type of recovery than the claims against Nationwide in the original complaint for replacement services loss produced by Gerald’s injuries and for Gerald’s allowable medical expenses.

Since Keirsten’s amended complaint asserted a new cause of action against Nationwide for survivor’s loss after the one-year statute of limitations for making that claim had run and since Nationwide properly pled the statute of limitations as a bar to Keirsten’s survivor’s loss claim, Dash (statute of limitations is a waivable defense which must be pled as an affirmative defense under New Matter), the trial court erred in granting Keirsten survivor’s loss benefits due to Gail’s death. Accordingly, we reverse that portion of the judgment which awarded Keirsten survivor’s loss benefits and interest thereon.

It is interesting to note that if Keirsten had commenced the action by a complaint and not by a writ of summons, we would not permit her to add a fresh cause of action after the statute of limitations had run. The principle is not changed because the action was commenced by a writ of summons. To change it would permit a complainant to circumvent a principle of law which serves the efficient and fair operation of the judicial system.

Next, Nationwide argues that it should not have been ordered to pay appellees’ attorney’s fees. See 40 P.S. § 1009.107(1). Nationwide was ordered to pay $3,700 in attorney’s fees based on its refusal to pay the No-fault claims of Gerald and Keirsten. Attorney’s fees are assessed against an insurer when the insurer has, without a reasonable foundation for doing so, denied payment of a claim or of any significant part of a claim made pursuant to the No-fault Act. 40 P.S. § 1009.107(3); Steppling v. Pennsylvania Manufacturers’ Association Insurance Co., 328 Pa.Super. 419, 477 A.2d 515 (1984); Solomon v. Sentry Insurance Co., 324 Pa.Super. 329, 471 A.2d 863 (1984); Hall v. Midland Insurance Co., 320 Pa.Super. 281, 467 A.2d 324 (1983).

We conclude that Nationwide had a reasonable foundation for refusing to pay Keirsten’s claim. As we conclude that Keirsten’s claim was properly refused by Nationwide, we must conclude that its refusal to pay this claim had a reasonable foundation. Nationwide, however, did not have a reasonable foundation for refusing to pay Gerald’s claim. Nationwide maintains that the lack of precedent as to which insurer under these facts was the obligor entitled it to refuse payment to Gerald. Nationwide overlooks, though, that absence of precedent does not invariably excuse an insurance carrier from denying a claim. Steppling. We conclude, as did the trial court, that the award of attorney’s fees was well within the statutory scheme outlined in Section 204 of the No-fault Act.

The trial court, although it did not assess attorney’s fees against the claims which it rejected, did assess a lump sum attorney’s fees award of $3,700 as to the No-fault claims of Gerald and Keirsten. Since we cannot determine from the record what portion of the attorney’s fees is attributable to Gerald’s claim and what portion is attributable to Keir-sten’s, we must vacate the award of attorney’s fees and remand to permit the trial court to make this apportionment and limit the award of attorney’s fees to Gerald’s claim.

Next, Nationwide asserts that section 501 of the No-fault Act permits Nationwide to set off the no-fault benefits payable to Gerald and Gail’s estate against the uninsured motorist benefits payable to Gail’s estate. The trial court ordered Nationwide to pay the awarded no-fault benefits without a setoff. We affirm in part and reverse in part.

Section 501 of the No-fault Act states in pertinent part that

[t]he obligor obligated to pay basic loss benefits ... to a person occupying a motor vehicle, the owner of which is uninsured pursuant to this act or to the spouse or relative resident in the household of the owner or registrant of such motor vehicle, shall be entitled to recover all the benefits paid and appropriate loss or adjustments costs incurred from the owner or registrant of such motor vehicle or from his estate.

The rationale underlying section 501 is that an insurance company’s ability to recover from an uninsured car owner will ensure that the uninsured owner ultimately bears the risk of loss and does not profit from disregarding the mandatory insurance requirements of the No-fault Act. Harleysville Mutual Insurance Co. v. Schuck, 302 Pa.Super. 534, 449 A.2d 45 (1982).

Resolution of this setoff/reimbursement issue is governed by our decisions in Schuck and Ostronic v. Insurance Company of North America, 314 Pa.Super. 146, 460 A.2d 808 (1983).

In Schuck, we held that an insurer initially has to pay basic loss benefits to a living uninsured car owner injured in an automobile accident and thereafter has to bring an action against the uninsured owner for recovery of the benefits paid. We reasoned that an initial payment of benefits to a living victim is consistent with the legislature’s expressed intent that the No-fault Act provide the victim with “prompt and comprehensive professional treatment,” 40 P.S. § 1009.102(a)(9)(A), so that the victim can be “rehabilitated and returned as a productive member of society as quickly as possible.” Schuck, 302 Pa.Super. at 538, 449 A.2d at 47; 40 P.S. § 1009.102.

However in Ostronic, we stated that an insurance obligor does not have to make an initial payment of no-fault benefits to the estate of a deceased uninsured car owner and try afterward to recoup payment from the decedent’s estate. Whereas the initial payment of benefits to a living uninsured car owner/victim is justified because it promotes the No-fault Act’s purpose of expediting the victim’s treatment and rehabilitation, Schuck, similar justification for an initial payment of benefits to the estate of the deceased uninsured car owner/victim does not exist. Ostronic. Moreover, an initial payment of benefits to the estate of a deceased uninsured car owner may result in unjust enrichment for the estate and unrecoverable losses for the insurer:

One obvious problem would be the practical ability of the insurer to obtain full reimbursement from the estate of an uninsured____ when there are other claims against that estate by other creditors and the size of the estate, including any No-fault benefits received, is exceeded in amount by the various claims____ [T]he benefits of insurance protection might be available to supplement one’s estate, without a countervailing obligation to pay insurance premiums____ Only the responsible drivers who purchased insurance would suffer in such circum-stances____ This result could never have been intended by our legislators____

Ostronic, 314 Pa.Super. at 154, 460 A.2d at 813.

Given our analyses in Ostronic and Schuck, we conclude that Nationwide is not obligated to pay no-fault benefits (here, funeral expenses) to Gail’s estate but must pay no-fault benefits (here, medical expenses) awarded by the trial court to Gerald. After Nationwide has duly paid Gerald’s benefits, Nationwide may bring an action against Gail’s estate to recover the amount of the no-fault benefits paid to Gerald.

Finally, Nationwide argues on appeal that Gail’s estate is not eligible for benefits under the Uninsured Motorist Act because Gail’s fatality was not caused by an “uninsured motor vehicle” as that expression is defined in conjunction with the Uninsured Motorist Act.

The Uninsured Motorist Act provides insurance coverage “for the protection of persons ... who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death____” 40 P.S. § 2000(a). This language in the Uninsured Motorist Act has been construed by our court “to mean that if either the owner or operator of the offending vehicle has insurance applicable to the accident, then the vehicle may not be deemed uninsured.” Parsons v. State Farm Mutual Automobile Insurance Co., 335 Pa.Super. 394, 398, 484 A.2d 192, 194 (1984) (footnote omitted).

The present case involves a single-car accident. At the time of the accident, the car in question was owned by Gail and was being driven by Gerald who had a motor vehicle insurance policy with Nationwide. Thus, Gail was fatally injured as the passenger of an automobile which was being operated by an insured driver, Gerald. Inasmuch as the operator (Gerald) of the offending vehicle (Gail’s Toyota) had insurance applicable to the accident, Gail’s death did not result from an uninsured motorist incident. Parsons. Accordingly, we reverse the trial court’s judgment awarding uninsured motorist benefits to Gail’s estate.

In summation, we quash appellant Nationwide’s appeal as to the issue involving the grant of summary judgments in favor of INA. We reverse that portion of the trial court’s judgment which awarded Keirsten survivor’s loss benefits and interest thereon. We vacate the trial court’s judgment insofar as it assessed attorney’s fees against Nationwide and remand for a proper assessment of attorney’s fees as they relate to Gerald’s claim. We affirm that part of the trial court’s judgment which directed Nationwide to pay no-fault benefits (medical expenses) and interest thereon to Gerald. We reverse that portion of the trial court’s judgment which directed Nationwide to pay no-fault benefits (funeral expenses) and interest thereon to Gail’s estate. We reverse that part of the trial court’s judgment ordering Nationwide to pay uninsured motorist benefits and interest thereon to Gail’s estate.

Appeal quashed in part. Judgment affirmed in part, reversed in part, and vacated in part. Case remanded for a proper assessment of attorney’s fees. Jurisdiction is not retained.

      . As administrator of the estate of Gail F. Jakovac and as trustee ad litem for Keirsten Leigh Jakovac (daughter of Gerald and Gail Jako-vac).

      . Act of July 19, 1974, P.L. 489, 40 P.S. §§ 1009.101-.601, repealed by the Act of February 12, 1984, P.L. 26.

      . Act of August 14, 1963, P.L. 909. as amended by the Act of December 19, 1968, P.L. 1254, 40 P.S. § 2000.

      . The nature of the assigned claims plan provision of the No-fault Act was explained by the Pennsylvania Supreme Court in Tubner v. State

        Farm Mutual Automobile Insurance Co., 496 Pa. 215, 436 A.2d 621 (1981), reargument denied, December 29, 1981. “Under Section 108(b) [of the No-fault Act], insurers are assigned to compensate motor vehicle accident victims for whom insurance is not carried as if a policy of basic loss insurance had been issued____” Tubner, 496 Pa. at 217, 436 A.2d at 622.

      . The September 17, 1984, judgment resolved the matters of all other parties in the case except for INA which was no longer in the case after the July 23, 1982, grant of summary judgments to INA.

      . See Pa.R.A.P. 311 (interlocutory orders appealable as of right); Pa.R.A.P. 312 (interlocutory orders appealable upon certification of the trial court).

      . Pursuant to Pa.R.C.P. No. 1033, a party may amend a pleading "either by filed consent of the adverse party or by leave of court.” It is clear from the record that Nationwide did not consent to allow an amended complaint. Nor does the record suggest that leave of the trial court was obtained before the complaint was amended. Nevertheless, inasmuch as the trial court granted the relief requested in the amended complaint, we shall view the amendment to the complaint as having been made with the trial court’s permission.

      . Nationwide petitioned the court in writing for leave to amend its answer, and by order of court, permission to amend was granted. Thus, Nationwide complied with the requisites of Pa.R.C.P. No. 1033.

      . Under 40 P.S. § 1009.103, ‘“[Replacement services loss’ means expenses reasonably incurred in obtaining ordinary and necessary services in lieu of those the victim would have performed, not for income, but for the benefit of himself or his family, if he had not been injured." Replacement services loss covers expenses incurred while the victim lives but remains incapacitated by the automobile accident injuries. Habecker v. Nationwide Insurance Co., 299 Pa.Super. 463, 445 A.2d 1222 (1982); Brandon v. Erie Insurance Exchange, 264 Pa.Super. 258, 399 A.2d 765 (1978).

      . Under 40 P.S. § 1009.103, survivors of a deceased victim may receive survivor’s loss benefits which include reimbursement for "expenses reasonably incurred by a survivor ... after a victim’s death resulting from injury, in obtaining ordinary and necessary services in lieu of those which the victim would have performed, not for income, but for [the survivor’s] benefit, if he had not sustained the fatal injury." This aspect of survivor’s loss is identical to replacement services loss except that survivor’s loss applies to the period after the victim’s death whereas replacement services loss is restricted to the period before the victim's death. Habecker v. Nationwide Insurance Co., 299 Pa.Super. 463, 445 A.2d 1222 (1982); Brandon v. Erie Insurance Exchange, 264 Pa.Super. 258, 399 A.2d 765 (1978).

      . Nationwide further asserts that it should be able to set off the No-fault Act benefits payable to Keirsten (survivor's loss) against the uninsured motorist benefits payable to Gail’s estate. But this argument has been rendered moot by our holding that Keirsten is not entitled to survivor’s loss benefits because the claim for such benefits was not made within the applicable statute of limitations period.

      . We reject appellees’ contention that Gail was not an uninsured car owner for purposes of the No-fault Act because the trial court interpreted section 204 of the No-fault Act to bring Gail within the accident victim coverage provided by Gerald’s insurance policy with Nationwide. In fact, Gail was an uninsured car owner because Gail failed to comply with the mandate of section 104 of the No-fault Act that the owner of a car registered in Pennsylvania continuously provide security for the car. See Aagesen v. Travelers Companies, 346 Pa.Super. 45, 498 A.2d 1363 (1985); Johnson v. Travelers Insurance Co., 343 Pa.Super. 938, 495 A.2d 938 (1985); Ostronic v. Insurance Company of North America, 314 Pa.Super. 146, 460 A.2d 808 (1983); 40 P.S. § 1009.301; 40 P.S. § 1009.601.

      . If neither Gail as the owner of the Toyota car nor Gerald as the driver of the Toyota car at the time of the subject accident had obtained a motor vehicle insurance policy applicable to the accident, Gail would nevertheless remain ineligible for uninsured motorist benefits. There is no rationale for requiring an assigned claims plan insurer to pay uninsured motorist benefits to a car owner who has chosen to allow his or her car to be operated without the requisite insurance coverage mandated by the No-fault and uninsured motorist acts. Johnson v. Travelers Insurance Co., 343 Pa.Super. 560, 495 A.2d 938 (1985).

      . We reject appellees’ contention that we, as an appellate court, may regard the trial court's award of $15,000 in uninsured motorist benefits to Gail’s estate as a grant of $15,000 in work loss benefits to Gail’s estate and so may uphold the $15,000 judgment for Gail’s estate. First, we do not know of any precedent which would allow us to disregard the clearly expressed intent of the trial court to grant uninsured motorist benefits rather than no-fault work loss benefits to Gail’s estate. More importantly, we note that appellees failed to raise this issue before the trial court and so the issue has not been properly preserved for appellate review. Pa.R.A.P. 302; Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).


author: KELLY, Judge:

text:
    518 A.2d 1224
    Leo COLAROSSI and Shirley Colarossi, his wife, Appellants, v. Ernest N. FABER and Francis J. Faber, Co-Executors of the Estate of Cecilia T. Faber and Emeryville Trucking, Inc., a Corporation, Appellees.
    Superior Court of Pennsylvania.
    Argued May 21, 1986.
    Filed Dec. 3, 1986.

      Joseph J. Bonistalli, Pittsburgh, for appellants.
    Michael R. Ford, Pittsburgh, for Faber, appellees.
    Emilio P. Fastuca, Pittsburgh, for Emeryville, appellee.
    Before BROSKY, KELLY and ROBERTS, JJ.
   KELLY, Judge:

This is an appeal from the trial court’s determination as to which of two leases presents a superior right to possession of the leasehold property. Appellants claim right of possession by way of a lease entered into in 1968 by the owner/lessor and appellant’s assignors-in-interest. Appel-lees claim not merely the superior right of possession, but also right of first refusal, by way of a 1958 lease agreement between the owner’s attomey-in-fact and appellee’s assignors-in-interest. This appeal arises from a July 16, 1985 Order dismissing appellants’ exceptions, and entering as final, on August 3, 1983, the Decree Nisi awarding appel-lees the right of first refusal to buy the leasehold.

The action commenced when Leo and Shirley Colarossi, appellants herein, filed a complaint in equity claiming superior right to possess certain real property situated in Marshall Township, Allegheny County. Appellees, Ernest and Francis Faber, are the sons of Cecilia T. Faber, the deceased owner of the disputed property. Appellee Emery-ville Trucking, Inc., was the assignee of a leasehold interest in the property. Appellees denied appellants’ claims of superior interest in the property. After a bench trial, the Honorable Ralph H. Smith, sitting as chancellor, entered an adjudication and Decree Nisi, which were embodied in the court’s Order of August 3, 1983, dismissing appellants’ complaint. Appellants’ exceptions were denied on July 5, 1985 and the final decree entered on July 16, 1985. Appeal to this court timely followed.

The chancellor found the following to be the dispositive facts in this matter. Cecilia T. Faber was the owner of record of the previously mentioned plot of real estate in Allegheny County. On April 9, 1958 Farber signed a written power of attorney, appointing Clarence G. Barth, hereinafter Barth, as her attorney-in-fact. The pertinent portions of this agreement read as follows:

POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, Cecilia T. Faber, have made, constituted, and appointed, and by these presents do make, constitute and appoint Clarence G. Barth of Ross Township, Pennsylvania, Attorney-at-law, my true and lawful attorney, for me, and in my name, place and stead, to let and demise my real estate in Marshall Township, Allegheny County, Pennsylvania, for the rental of $200.00 per month; Giving and granting unto my said attorney full power and authority to do and perform all and every act and thing whatsoever, requisite and necessary to be done in and about the premises, as fully to all intents and purposes as I might or could do, if personally present; hereby ratifying and confirming all that my said attorney shall lawfully do or cause to be done by virtue hereof.

(Emphasis added).

On May 12, 1958 Faber, by Barth, entered into a lease with West Penn Forwarding Company, hereinafter West Penn, to lease for a period of 25 years the property in question. Attached to the lease was a piece of paper entitled “Exhibit B” which provided that the lease agreement cpuld be sublet or assigned. It further provided that:

In consideration of the execution of this lease and rentals to be paid hereunder lessor agrees that at all times during the term of this lease or extension thereof, lessee shall have the right to buy the leased property in the event lessor wishes to sell it. Before selling the property to anyone else, lessor will first offer to sell it to the lessee at the price lessor is willing to accept, such offer to be made in writing and mailed to lessee’s last known address.

(Emphasis added). Both documents were signed by Barth, “attorney-in-fact for Cecilia T. Faber.”

Thereafter, in 1965, West Penn, by written document, assigned its lease to Wexford Motor Sales, Inc., hereinafter Wexford. The assignment agreement further stated:

5. It is a condition of THIS AGREEMENT:
c. That both the written Power of Attorney, and the Lease and Exhibit “B”, being Schedule “A” hereof, will be accepted by the Recorder’s Office of Allegheny County, Pennsylvania, for recording, prior to the consummation of this agreement on or before August 1, 1965.

The lease, Exhibit “B” and assignment were never recorded. (Trial Ct.Op. 8/3/83 at 7).

The leasehold interest changed hands yet again. Wex-ford, by written agreement, assigned its interest to Frank Rezzetano on April 15, 1971. Rezzetano elected, as per the original agreement, to extend the lease period to April 30, 1978. Rezzetano died on September 30,1976, and his estate assigned his interest to appellee Emeryville.

On April 25, 1978, just prior to the termination of the leasehold, Faber, by way of Barth’s successor, offered to sell to Emeryville the subject property for the price of $175,000. The offer was accepted on April 27,1978, and the parties entered into a written agreement of sale and purchase on April 28.

However, approximately ten years prior to this, Faber, on November 11, 1968, entered into a lease for the same property with the Sun Oil Company, hereinafter Sun, for a term of fifteen years -with options to renew for five-year periods. A rental fee of $50.00 was to be paid monthly commencing February 1, 1969, until thirty days after Sun received possession of the premises. Once possession was received, the rental fee was to increase to $250.00 monthly. Sun knew of the existence of the prior Faber-West Penn lease and had seen a copy of that lease including Exhibit B [which gave the lessee the right of first refusal to purchase the property in question.] (N.T. 172). The Sun Oil lease contained a right-of-first-refusal clause as well as an option-to-purchase clause:

(c) that Company shall have the option to purchase at any time during the term of this lease or any renewal or extension thereof, the said leased premises, including any and all rights, privileges and easements on adjoining lands as herein set forth, for the sum of ONE HUNDRED FIFTY THOUSAND AND 00/100 Dollars ($150,-000.00) ...
(d) In the event the Lessor desires to sell the within demised premises or other property owned by Lessor of which the demised premises are a part at any time during the term hereof or any renewal or extension thereof, and receives therefore a bona fide offer of purchase acceptable to Lessor, Lessor shall notify Company in writing of said offer and attach thereto a photostatic copy of offer of purchase and Company shall have the right to meet said bona fide offer by giving Lessor notice in writing of its intention so to do within sixty (60) days after receipt of said offer in writing____

(Emphasis added). This lease was recorded in the Deed’s office of Allegheny County on January 30, 1969. Sun assigned the lease to the appellants on. April 1, 1974. This assignment also was recorded in the Deed’s office. All rental payments under this lease were paid and accepted by Faber.

The trial court further found as fact that:

11. Emeryville had, prior to April 1, 1978, both actual and constructive knowledge of the Faber-Sun lease and its terms and conditions.
12. Plaintiffs [the Colarossis], at all times since the date of said assignment to them of the Faber-Sun lease, had performed all conditions precedent incumbent upon them and have been and still are ready and willing to comply with the terms of the lease if the defendants comply.

Appellant/plaintiffs, the Colarossis, at trial, and now on appeal, contend that theirs is the superior right of possession and that, therefore, they are entitled to immediate possession of the leasehold property, and are entitled to dispossession damages for the intervening months they have been denied possession. The trial court, however, found that appellee Emeryville, as assignee of the West Penn lease, had the superior right to possession and to purchase the premises.

Appellants raise several issues on appeal. We shall address these issues by analyzing each transaction in the chain of title.

I. Power of Attorney

The chancellor concluded that the power of attorney granted Barth by Faber included the power to grant any lessee the right of first refusal of the leased premises. The chancellor also questioned the standing of the appellants as third parties to challenge the agreement.

We note initially that:

Our scope of review of an adjudication in equity is well established. A chancellor’s findings of fact, affirmed by the court en banc, have all the force and effect of a jury’s verdict and will not be disturbed on appeal if there is sufficient evidence to sustain such findings. Piercing Pagoda, Inc. v. Hoffner, 465 Pa. 500, 351 A.2d 207 (1976) ... It is equally well settled that a chancellor’s conclusions A whether of law or ultimate fact, are always reviewable as they are no more than his reasoning from the underlying facts. Chambers v. Chambers, 406 Pa. 50, 176 A.2d 673 (1962).

Village Beer and Beverage, Inc. v. Cox and Co., Inc., 327 Pa.Super. 99, 102, 475 A.2d 117, 118 (1984).

First, as potential successors to the leasehold, appellants are clearly real parties in interest. Secondly, the scope and effect of the authority granted by Faber to Barth by virtue of the power of attorney is an issue worthy of closer scrutiny than afforded by the trial court.

Our analysis of the chain of title of possessory interests in this property must necessarily begin with determination of the scope of Barth’s authority as attorney-in-fact. Therefore, our analysis revolves around agency principles of law. The specific agency relationship presented herein involved the grant to Barth of a power of attorney. Such powers are to be strictly construed; the existence of a limitation upon the authority conferred will also be strictly construed. Fierst v. Com. Land Title Ins. Co., 499 Pa. 68, 451 A.2d 674 (1982). Nonetheless, “[pjowers expressly granted will not be restricted by implication nor will a construction be made which will effectively defeat the very purpose of the agency.” Nuzum v. Spriggs, 357 Pa. 531, 533, 55 A.2d 402, 403 (1947).

In creating the agency relationship herein, Faber granted Barth the power to “let and demise” the subject property. A demise is defined as:

A conveyance of an estate to another for life, for years, or at will; most commonly for years; a lease, 1 Steph. Comm 475. Priddy v. Green, Tex.Civ.App., 220 S.W. 243, 248. Originally a posthumous grant; commonly a lease or conveyance for a term of years; sometimes appplied to any conveyance, in fee for life, or for years. Pub.St. Mass. 1882, p. 1289.

Black’s Law Dictionary 388. (5th ed. 1979). Thus to “let and demise” is synonymous with “to lease”. Barth did lease the premises to West Penn and thus acted within the permissable scope of his authority.

Barth, however, in addition to giving West Penn a lease agreement, also gave West Penn a contract, “Exhibit B”, purporting to give West Penn a right of first refusal. A grant of the right of first refusal is a contract contemplating the eventual or potential sale of the leased premises.

A similar “right of refusal,” as it is commonly called, has been analyzed by Professor Corbin in the following terms: “This contract created no option in either party. If [a third party] should make an offer the owner of the land was privileged not to accept it, and also not to make any offer to the promisee. But the owner was bound by duty not to accept the offer of the [third party] without first giving an option to the promisee.” Corbin, op. cit. at p. 363.

Gateway Trad. Co. v. Children’s Hospital of Pittsburgh, 438 Pa. 329, 265 A.2d 115 (1970). By contrast, under an option to purchase, the optionholder has acquired the power to accept an offer (irrevocable during the option period) by an appropriate means, thereby effecting a binding contract. See Corbin, Contracts (1952), Chap. 11; Restatement (Second) of Contracts, § 25 (1979). The irrevocable offer is usually for a fixed amount, open for a fixed and specified option period. An examination of “Exhibit B” reveals that there was no certainty of terms, either as to price or as to option period, that would transform the language into an option to purchase.

Although this particular “right of refusal” does not mention the existence of any third party making a first offer, it is clear that Barth was purporting to make a promise on Faber’s behalf, to offer to sell the property to the leaseholders before selling to any other party. Appellant argues that the language of Exhibit B created an option to buy and that this option is too vague to be capable of specific performance. We disagree with appellant’s interpretation. Exhibit B grants a right of refusal, not an option to buy; such a right of refusal is capable of being enforced by a court as a valid grant of property interest. See Atlantic Refining Co. v. Wyoming National Bank, 356 Pa. 226, 51 A.2d 719 (1947).

Regardless of whether Exhibit B grants a right of refusal or an option to purchase, we must narrowly construe the language of the grant of authority in the power of attorney. We cannot expand the specific purpose for the grant, to let and demise the property, to include an agreement to also negotiate the property’s potential sale. Power to lease and power to sell are necessarily separate and distinct. We conclude that Barth’s action of granting West Penn a right of first refusal was unauthorized by Faber.

We must next determine whether this unauthorized act was ratified by Faber. When a contract is entered into by parties lacking authority to contract, that agreement may be voided; however, a principal may ratify an act of an agent, or may modify the original agency relationship, by acquiescing to the new exercise of authority.

A modification of an agency relationship may occur where a principal acquiesces in conduct not included in the original authorization. See Restatement (Second) of Agency, supra, §§ 43, 94. The Comment to Section 43 adds: ‘Persons ordinarily express dissent to acts done on their behalf which they have not authorized or of which they do not approve.’ Restatement (Second) of Agency, supra, at 133.

Scott v. Purcell, 264 Pa.Super. 354, 363, 399 A.2d 1088, 1093, aff'd 490 Pa. 109, 415 A.2d 56 (1979). See also Restatement (Second) Contracts §§ 7, 12. However, ratification is conditioned on the premises that the act to be ratified is lawful and that the principal is fully informed by the agent as to the particulars of the act. Scott, supra, 264 Pa.Superior Ct. at 366 n. 4, 399 A.2d at 1094 n. 4; Restatement (Second) Agency § 98.

We conclude that Faber ratified Barth’s actions in granting a right of refusal to West Penn. First, Faber never disavowed Barth’s actions during his lifetime; silence on her part signifies acquiescence. See Turnway Corp. v. Soffer, 461 Pa. 447, 336 A.2d 871 (1975). Secondly, Faber had knowledge of the terms of the West Penn lease in 1968 when she and Barth conducted negotiations with the Sun Oil Company. (N.T. at 158-162). Third, Faber clearly was aware of, and endorsed Barth’s actions when, in 1978, she offered the premises for sale to assignee, Emeryville.

Faber had knowledge of the facts of her agent, and the acts of her agent were lawful. Faber’s actions over a twenty year span are inconsistent with any purpose other than ratification of the contract; accordingly, we find Faber ratified the actions of her agent, Barth. Thus, while we find the chancellor did misconstrue the power of attorney, as appellant claims, nonetheless that misconstruction is harmless error due to our finding of ratification.

II. Assignment of Lease to Wexford Motors

Appellant next contends that the assignment of the lease from West Penn to Wexford Motors was improper and without effect because of failure of a condition precedent. Specifically, appellants argue that the failure of Wexford to have the lease and Exhibit B recorded defeated the transfer of interest in the leasehold. We are thus called upon to construe the operative language of the assignment: “It is a condition of this agreement ... that both the written power, and the lease and Exhibit B ... will be accepted by the Recorder’s Office of Allegheny County ... prior to the consummation of this agreement on or before August 1, 1965.” None of the documents were ever recorded by Wexford.

The general rule remains that where an act or event mentioned in a contract is not expressly made a “condition precedent,” it will not be construed, unless such clearly appears to be the intention of the parties____ As our Supreme Court has held, the actions of the parties pursuant to an agreement between them are significant and substantial evidence in determining whether they intended to be bound by the agreement.

American Leasing v. Morrison Co., 308 Pa.Super. 318, 327, 454 A.2d 555, 559, 560 (1982). (Citations omitted). (Emphasis added).

We agree with the trial court that the language in question expressly created a condition precedent. However, failure to comply with the condition does not vitiate the transfer of the interest; the actions of the parties evince that they intended to be bound by the agreement in spite of the failure of the condition precedent. West Penn did not claim breach of the assignment agreement, and allowed the transfer of possessory interest to occur. Neither party is now disputing the agreement or transfer of the leasehold. Therefore, we affirm the trial court’s determination that the lease interest was passed from West Penn to Wexford Motors.

III. Faber’s Lease to Sun Oil Company

The trial court found as fact that it was the intention of both appellee Faber and the Sun Oil Company that their lease not grant Sun the immediate right of possession but only promised that “vacant possession would be delivered to Sun or its assignee, upon the termination of the then current prior lease.” Sun was paying a monthly rental of fifty dollars to maintain their option to gain possession of the leased property upon expiration of the previous West Penn lease.

Sun drafted the language of the lease. Thus we must interpret and construe any ambiguous portions strongly against Sun.

Where the words of the contract are clear and unambiguous, the intent of the parties must be determined from the agreement itself. Kennedy v. Erkman, 389 Pa. 651, 133 A.2d 550 (1957). One part of a contract cannot be so interpreted as to annul another part, but, rather, writings which comprise an agreement must be interpreted as a whole. Shehadi v. Northeastern National Bank of Pennsylvania, 474 Pa. 232, 378 A.2d 304 (1977). Ambiguous language in a contract is to be interpreted most strongly against the party who selected the language. West Penn Realty Co. v. Acme Markets, Inc., 224 Pa.Super. 202, 303 A.2d 836 (1973).

Village Beer and Beverage, Inc. v. Cox, supra, 327 Pa.Superior Ct. at 107, 475 A.2d at 121. We find a number of problems of construction in the Sun lease.

To begin, Sun knew of the prior West Penn lease, including Exhibit B, which granted West Penn and its assignees a right of refusal. Nonetheless, Sun included a right of first refusal in their second lease. (N.T. at 170). The Sun lease never mentions the right of first refusal granted to West Penn and its assignees. This Court must therefore determine how Sun’s right of refusal would operate so as to also give effect to the West Penn right of refusal.

We hold that Sun’s right of first refusal, and its possesso-ry interests, must yield to the rights of the first leaseholder in interest, appellee Emeryville. See National Forge Co. v. Carlson, 452 Pa. 516, 307 A.2d 902 (1973). Accordingly, appellants’ interests, as assignees of the Sun lease, are subordinate to those of Emeryville.

Thus, when we construe the Sun lease in the context of Sun’s knowledge of the prior West Penn lease, we find Sun’s right to enter into possession of the premises was conditional. Sun’s rights were conditioned on the fact that the tenant in possession under the West Penn lease would not exercise its right of refusal and accept an offer to buy the leased premises. Sun’s rights under the lease would become executory only if West Penn did not opt to buy the premises.

Sun apparently accepted this conditional status, and the risks involved, because Sun operated under the assumption that the tenant in possession under the West Penn lease would not exercise the right of refusal. For instance, one of the negotiating agents for Sun testified:

Q. Now, you mention the sale was really not an issue with you?
A. Yes, it was. I attempted to buy the property first prior to leasing it.
Q. No. I meant Mr. Rezzetano’s, a sale to Mr. Rezzeta-no [the tenant in possession under the West Penn lease].
You said that was not an issue with you?
A. No, sir.
Q. It was not an issue with you because you didn’t think he had the ability to go through with the sale, correct?
A. That’s correct.
Q. Because he was financially strapped?
A. Yes, sir.

(N.T. at 188). Sun apparently overlooked the possibility that the West Penn lease could be assigned to a party capable of purchasing the property. To Sun’s misfortune, this possibility became reality; the prior lease did not expire, but rather, the right of refusal was exercised. Consequently, the Sun lease never became executory.

This is the only interpretation consistent with the language of both lease documents, the intent of the parties, and Sun’s knowledge of the prior lease. Appellants, as Sun’s assignees, had both constructive and actual knowledge of West Penn’s lease. Appellants’ interest in the leased premises were subject to the superior rights contained in the West Penn lease.

IV. Faber’s Offer of Sale to Emeryville

Appellants argue that Faber’s grant of the right of first refusal to Sun under the second lease signifies her repudiation of the previous West Penn lease. We disagree. As previously noted, Faber did not draft the agreement; Sun drafted the lease. Thus we cannot impute to Faber any such intention of repudiation. Rather, as stated previously, Faber signed a lease with ambiguous provisions, which, construed against the draftor, Sun, never became executory due to the sale of the premises to Emeryville. West Penn Realty Co. v. Acme Markets, Inc., 224 Pa.Super. 202, 303 A.2d 836 (1973).

Appellants also argue that Faber should be estopped from executing the agreement of sale with Emeryville in light of the “intervening, fully paid, recorded rights of Sun Oil Company and its successors.” Appellant’s Brief at 27. However, because we hold that Sun’s intervening rights were conditional and never became executory, we find no need to discuss the issue of estoppel. As to appellants’ contention that they are entitled to dispossessory damages, we find this argument moot, in light of the determination that Sun had no right to enter into possession of the premises.

Accordingly, we affirm the decree of the trial court.

      . Attorney Barth did approve the assignment of the lease. Barth died in 1972; another member of his law firm continued to serve Mrs. Faber but no new power of attorney document was signed.

      . Demise, the verb, is defined:
      DEMISE, v. In conveyancing. To convey or create an estate for years or life; to lease. The usual and operative word in leases: "Have granted, demised, and to farm let, and by these presents do grant, demise and to farm let.”
      Black’s Law Dictionary 551 (3rd ed. 1933).

      . Appellant argues that Exhibit B is not properly to be construed as a part of the lease agreement as being extraneous to the "four corners" of the lease. We note that:
      Any number of documents can be taken together to make out the necessary written terms of the bargain provided there is sufficient connection made out between the papers, without the aid of parol evidence, further than to identify papers to which reference is made, but not to supply a material term of the contract. Volume 4, Williston on Contracts, Third Edition, page 128.

        Haines v. Minnock Construction Co., 289 Pa.Super. 209, 215-16, 433 A.2d 30, 33 (1981). However, we need not determine whether Exhibit B is to be construed as part of the lease or as a separate document since it makes no difference to our determination herein.

      . Reference to the broader grant to Barth of discretionary authority, i.e., the grant of power to do everything requisite and necessary, similarly does not persuade us that the grant of a right of first refusal was reasonably contemplated as necessary or requisite to the leasing of the property. Rather, this clause, if it conveys any specific power, merely confers upon Barth the duty to maintain the leased premises in satisfactory condition. See Zidek v. Forbes National Bank, 159 Pa.Super. 442, 48 A.2d 103 (1946).

      . The death of an agent terminates authority. Restatement (Second) Agency § 121.

      . We also note that Sun included language regarding a potential sale of the premises when Sun knew that Mrs. Faber had no intention of selling the premises. The Sun agent who negotiated and drafted the lease agreement testified:
      A. ... I was told that the property was not for sale and would not be for sale.
      Q. Who told you that?
      A. Mrs. Faber and Mr. Barth.
      Q. Did Mrs. Faber ever give you a reason why the property was not for sale?
      A. She stated that she wanted income to take care of herself in her later years and would not sell the property under any circumstances. Mr. Barth cautioned me if I would pursue this avenue I would have no further contact and negotiate with Mrs. Faber.
      (N.T. at 157). Nonetheless, Sun disregarded Mrs. Faber's stated intention and included an option to buy for the specified price of $150,000 in the lease. The Sun agent’s explanation to Mrs. Faber for including the option clause in the lease was that it was necessary to do so, otherwise his superiors at Sun would not be convinced to assent to the lease. Thus Sun’s theory of repudiation is further rebutted; quite simply, the record indicates that Mrs. Faber intended that the option clause never be evoked. (See N.T. at 176, 177).


author: MONTEMURO, Judge:

text:
    518 A.2d 1231
    Leon NEWMAN and Donna Newman, Appellees, v. Joseph THORN, Individually and as Mayor of Morton Borough, Judith Bechetel, James McCaffrey, Joseph Savukinas, George Dickerson, Paul Lytle, Individually and as Councilman of Morton Borough, Appellants.
    Superior Court of Pennsylvania.
    Argued Sept. 4, 1986.
    Filed Dec. 12, 1986.

      Maria Zulick, Philadelphia, for appellants.

      Jon Auritt, Media, for appellees.
    Before CIRILLO, President Judge, and MONTEMURO and KELLY, JJ.
   MONTEMURO, Judge:

This appeal challenges an order of the Delaware County Court of Common Pleas vacating a grant of summary judgment. Appellants raise issues that the General Assembly has committed to the exclusive jurisdiction of the Commonwealth Court. We therefore transfer this case to that court.

On February 16, 1983, appellant, Joseph Thorn, Mayor of the Borough of Morton, suspended appellee, Leon Newman, from his position as a police officer for the Borough. Appellants, James McCaffrey, Joseph Savukinas, George Dickerson and Paul Lytle, all members of the Borough Council, voted on March 9, 1983 to discharge Mr. Newman. On appeal pursuant to 53 P.S. § 46191, the Borough Civil Service Commission, after extensive hearings, decided to uphold Mr. Newman’s discharge. The Delaware County Court of Common Pleas quashed as untimely Mr. Newman’s appeal from the Commission’s decision.

Nonetheless, while the matter was before the Borough Civil Service Commission, Mr. Newman and his wife, appel-lee Donna Newman, brought this separate action in the court of common pleas. In their complaint, the Newmans allege that appellants, by seeking or approving Mr. Newman’s discharge, intended only to retaliate against Mr. Newman for his outspoken opposition to the actions of Mayor Thorn and “certain Morton public officials.” The Newmans also allege that appellants either engaged in or condoned other “xnalicious” conduct, including an intrusive investigation of the Newmans’ private affairs by Mayor Thorn. For each of these separate incidents of alleged wrongdoing, the Newmans seek relief on both tort and federal civil rights theories.

Appellants responded by filing a motion for summary judgment at the close of the pleadings. In support of their motion, appellants advanced three arguments: (1) the proceedings before the Borough Civil Service Commission pursuant to the Borough Code, 53 P.S. § 46010 et seq. from which the Newmans could seek review in the court of common pleas and then the Commonwealth Court, bars this collateral challenge to Mr. Newman’s dismissal; (2) federal case law grants state and local officials qualified immunity from suit brought under 42 U.S.C. § 1983 for deprivation of federal civil rights; (3) the Political Subdivision Tort Claims Act, 42 Pa. C.S. § 8545, grants employees of local government units, including elected officials, “official immunity” from “civil damages” actions. On November 22, 1985, the trial court granted appellants’ motion for summary judgment, but only “to the extent of the ... claim relating to the dismissal of Mr. Newman.” By order of December 9, 1985, however, the court vacated its November 22, 1985 grant of summary judgment and ordered the parties to complete discovery within 60 days. Appellants filed a timely notice of appeal from that order.

Appellees, the Newmans, challenge the jurisdiction of any appellate court to hear appellants’ case. Appellees agree with the trial court that this appeal is interlocutory. They argue that the November 22, 1985 order granting summary judgment “to the extent of the ... claim relating to the dismissal of Mr. Newman” constituted a grant of partial summary judgment only. This court will quash as interlocutory an appeal from an order granting partial summary judgment if the order does not put the appellant out of court on his or her cause of action. See Dudash v. Palmyra Borough Authority, 335 Pa.Super. 1, 483 A.2d 924 (1984); Canulli v. Allstate Ins. Co., 315 Pa.Super. 460, 462 A.2d 286 (1983). Taking this proposition one logical step further, appellees reason that we should quash as interlocutory an appeal from and order vacating partial summary judgment. We are inclined to agree with appel-lees’ conclusion that a court cannot, by some legal artifice, create an appealable order merely by vacating a nonap-pealable one. Appellees reach this conclusion, however, by incorrectly assuming that the November 22, 1985 order granting “partial” summary judgment was not appealable.

In determining what constitutes a final appealable order, we must look beyond labels and generalities to the “practical ramifications” of the order in question. Jackson v. Moultrie, 288 Pa.Super. 252, 255, 431 A.2d 1033, 1035 (1981). Accord Pennsylvania Turnpike Commission v. Atlantic Richfield Co., 482 Pa. 615, 394 A.2d 491 (1978); Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975); Praisner v. Stockner, 313 Pa.Super. 332, 459 A.2d 1255 (1983). We must inquire whether, in effect, the order puts the aggrieved party out of court on his or her cause of action. See Rossi v. Pennsylvania State University, 340 Pa.Super. 39, 489 A.2d 828 (1985); Praisner v. Stockner, supra. As we recognized in Praisner v. Stockner, however, our liberal rules of pleading complicate the inquiry. Pennsylvania Rule of Civil Procedure 1020(a) encourages consolidation of lawsuits by allowing the plaintiff to plead more than one cause of action against the same defendant. Moreover, on any one cause of action, the plaintiff may assert as many theories of recovery as he or she deems applicable. The sometimes blurry distinction between “cause of action” and “theory of recovery” often controls the issue of whether an order is interlocutory or final:

Where separate and distinct causes of action have been joined under permissive joinder standards of Pa. R.C.P. 1020(a) ... the appealability of a judgment entered on one or more but not all counts must be distinguished from the situation in which separate counts have been used to state alternate theories for recovery on the same cause of action. In the former situation the summary judgment has terminated litigation, upon a separate and distinct cause of action. In the latter, an order dismissing or entering judgment on one or more but not all counts of a complaint is interlocutory, for the plaintiff can, nevertheless, proceed to a determination on the underlying cause of action. See: J.A. & W.A. Hess, Inc. v. Hazle Township, 465 Pa. 465, 470-471, 350 A.2d 858, 861-862 (1976). Thus, the dismissal of a count alleging damages for breach of an express contract is not appeal-able if an alternate count seeking to recover the same damages based on quantum meruit remains undecided. J.A. & W.A. Hess, Inc. v. Hazle Township, supra. Similarly, there is no formal order where a count averring negligence has been dismissed but there remains undetermined a count alleging liability for a defective product under Section 402A of the Restatement (Second) of Torts.

Praisner, 313 Pa.Super. at 341, 459 A.2d at 1260.

Although the phrase “cause of action” eludes precise definition, for our purposes it means “the fact or facts which establish or give rise to a right of action the existence of which affords a party a right to judicial relief.” 2 Stand.Pa.Prae.2d § 6:1 (1981). Appellees in their complaint have alleged several distinct causes of action. One of these causes is the retaliatory discharge of Mr. Newman from the Morton Borough Police force. The facts that appellees have set forth regarding the discharge, if proved, would certainly afford appellees “a right to judicial relief,” absent a valid defense.

We find that the November 22, 1985 order granting summary judgment completely cut off this right. The court granted judgment “to the extent of the ... claim relating to the dismissal of Mr. Newman.” This language, although imprecise, had the practical effect of putting appellees out of court on any cause of action arising from the alleged retaliatory discharge. We recognize that the November 22 order did not put appellees out of court completely. Other causes of action appear to have survived, including the one that arose from the alleged investigation of the Newmans’ private affairs by Mayor Thorn. Nonetheless, these causes stem from allegations of wrongdoing distinct from those concerning the discharge of Mr. Newman. The November 22 order granting summary judgment eliminated one of several independent causes of action. In Praisner, supra, 313 Pa.Superior Ct. at 343-44, 459 A.2d at 1261, we concluded that “[njeither the finality nor the appealability of such a judgment is destroyed merely because the cause of action in which the judgment was entered was one of several causes of action which had been joined in the same complaint.” We reach the same result in this case.

Appellants, of course, did not appeal the order granting summary judgment in their favor. They appealed the December 9, 1985 order vacating that judgment. Pennsylvania Rule of Appellate Procedure 311(a)(1) permits an interlocutory appeal as of right from “[a]n order opening, vacating or striking off a judgment.” This court has held that an order vacating a final appealable grant of summary judgment falls within the ambit of Rule 311(a)(1). See Hunter v. Employers Ins: of Wausau, 347 Pa.Super. 227, 500 A.2d 490 (1985). We therefore conclude that the December 9, 1985 order, filed December 11, was appealable.

Because appellants’ case is ripe for appellate review, and because appellees have not objected to the choice of appellate forum, our jurisdiction over this appeal is perfected “notwithstanding any provision of law vesting jurisdiction ... in another appellate court.” Pa.R.A.P. 741(a). See also 42 Pa.C.S. § 704(a). Even if we find that the appeal falls within the bailiwick of the Commonwealth Court, we have discretion to decide the case on the merits rather than transfer it. See Osser v. City of Philadelphia, 295 Pa.Super. 447, 441 A.2d 1317 (1982) (per curiam); Commonwealth v. Sensi, 287 Pa.Super. 452, 430 A.2d 691 (1981). This court occasionally will retain jurisdiction, in the interest of judicial economy, over appeals that the parties should have brought to our sister court. See, e.g., Overstreet v. Borough of Yeadon, 327 Pa.Super. 291, 475 A.2d 803 (1984); Schultz v. City of Philadelphia, 314 Pa.Super. 194, 460 A.2d 833 (1983). Judicial economy, however, must compete against other interests. In particular, we must consider (1) whether retaining jurisdiction will disrupt the “legislatively ordained division of labor” between the intermediate appellate courts and (2) the possibility of establishing two conflicting lines of authority on one subject. See Graffigna v. City of Philadelphia, 351 Pa.Super. 74, 505 A.2d 271 (1986); Karpe v. Borough of Stroudsburg, 315 Pa.Super. 185, 461 A.2d 859 (1983); Valley Forge Industries Inc. v. Armand Construction Inc., 248 Pa.Super. 53, 374 A.2d 1312 (1977). Of course, as with any exercise of discretion, we must “examine each potential transfer on a case-by-case basis.” Valley Forge Industries, supra, 248 Pa.Superior Ct. at 61, 374 A.2d at 1316.

Chapter Seven of the Judicial Code, 42 Pa.C.S. § 701 et seq., sets forth the “legislatively ordained division of labor” between appellate courts in Pennsylvania. The General Assembly has given appellate jurisdiction to both the Superior and the Commonwealth Courts over appeals from the courts of common pleas. The Superior Court, however, exercises a general jurisdiction over all appeals from common pleas “regardless of the nature of the controversy.” 42 Pa.C.S. § 742. From this broad grant of jurisdiction the General Assembly excepted only those classes of appeal that lie within the exclusive jurisdiction of the Supreme or Commonwealth Courts. Id. The Commonwealth Court, on the other hand, exercises a narrowly circumscribed jurisdiction. See 42 Pa.C.S. § 762. Section 762(a) enumerates seven specific categories of appeal from the courts of common pleas over which the Commonwealth Court has exclusive jurisdiction. Thus, the General Assembly consciously removed a group of cases from the court of general appellate jurisdiction and committed them to a court of specialized appellate jurisdiction. This more evenly distributes the burden of the case load between intermediate appellate courts and also allows the Commonwealth Court to develop, as it has done so well, expertise in handling a complex body of case law. We should not disregard the jurisdictional scheme lightly.

In this case, we are concerned with only one of the seven categories of appeal from common pleas that the General Assembly has assigned to the Commonwealth Court. Subsection 762(a)(7) gives the Commonwealth Court exclusive jurisdiction over appeals involving “immunity waiver matters.” The subsection defines “immunity waiver matters” as “[mjatters conducted pursuant to Subchapter C of Chapter 85 (relating to actions against local parties).” 42 Pa.C.S. § 762(a)(7). “Subchapter C of Chapter 85” refers to what is known popularly as the Political Subdivision Tort Claims Act, 42 Pa.C.S. § 8541 et seq. Before the trial court, appellants raised their immunity under the Tort Claims Act in their motion for summary judgment. On appeal, appellants again have raised their immunity under the Act, this time in opposition to the order vacating summary judgment. Appellees, for their part, have never disputed that appellants fall within the broad category of government unit “employees” to whom the immunity provisions of Chapter 85 applies. In short, appellees’ ability to bring this action depends on whether the Political Subdivision Tort Claim Act will allow it. We therefore find that this case is a matter “conducted pursuant to Subchapter C of Chapter 85,” and that it falls squarely within the jurisdiction of the Commonwealth Court. See Brady Contracting Co. v. West Manchester Twp. Sewer Auth., supra.

We recognize that appellants have raised issues other than their state Tort Claims Act immunity. The General Assembly must have anticipated, however, that issues other than immunity would arise in tort actions brought against political subdivisions and officials. If this court retained jurisdiction over every appeal that combined issues within our broad jurisdiction with issues concerning Tort Claims Act immunity, we would never transfer any immunities cases. This surely would disrupt the “legislatively ordained division of labor.” On the other hand, if resolution of the immunities issue merely requires this court to apply well-settled principles of law, transfer to the Commonwealth Court serves little purpose. See Valley Forge Industries, supra, 248 Pa.Super. at 61, 374 A.2d at 1316. Appellants here argue that the allegations in appellees’ complaint, even if proved, are insufficient under both state and federal law to override appellants’ claim of immunity. Although the Commonwealth Court has considered similar arguments, we find the law in this area far from well settled.

Moreover, as we noted in Brady Contracting, supra, 338 Pa.Super. at 147-48 n. 1, 487 A.2d at 896 n. 1, the General Assembly gave the Commonwealth Court broad jurisdiction over cases involving “immunity waiver matters,” 42 Pa.C.S. § 762(a)(7). The original version of Subsection 762(a)(7), which the Assembly added to Section 762 in 1980, defined “immunity waiver matters” as “[mjatters in which immunity has been waived pursuant to Subchapter C of Chapter 85.” A 1982 amendment recast the subsection in its current form. By redefining “immunity waiver matters” as “matters conducted pursuant to Sub-chapter C of Chapter 85,” the Assembly made clear its intent to expand the number of tort actions within the Commonwealth Court’s exclusive jurisdiction. See Brady Contracting, supra, 338 Pa.Superior Ct. at 147-48 n. 1, 487 A.2d at 896 n. 1 (“under the present language all that is necessary is that a local agency be sued in tort which then invokes the Commonwealth Court’s appellate jurisdiction since the case will be governed by ... the Tort Claims Act”). We therefore conclude that the mere presence of issues other than immunity will not justify a refusal to transfer this case.

We also must consider the possibility of establishing two conflicting lines of authority on one subject. This concern looms particularly large when the subject is sovereign immunity. Our supreme court has observed that “[i]n order to discharge his duties effectively, a public servant must be free to exercise his judgment unhampered by fear of unpredictable liability.” DuBree v. Commonwealth, 481 Pa. 540, 544, 393 A.2d 293, 295 (1978). Nothing would render more unpredictable the liability of public servants than having two courts of equal authority construe the Tort Claims Act inconsistently. We must take extraordinary care to avoid undermining the primary purpose of official immunity. The General Assembly certainly had this purpose in mind when it vested the Commonwealth Court with broad and exclusive jurisdiction over cases involving the Tort Claims Act. In Brady Contracting, supra, 338 Pa.Super. at 148, 487 A.2d at 897, we concluded that the “obvious legislative intent in granting such exclusive appellate jurisdiction to the Commonwealth Court is to ensure a uniform interpretation and application of the Political Subdivision Tort Claims Act.” Again, if we had only to apply well-settled principles of law, we would have less reason to transfer this case. However, because we lack clear guideposts from the Commonwealth Court, we cannot disregard the possibility of establishing conflicting precedent.

Against these factors we weigh the interest in judicial economy. We understand that transfer will delay the disposition of the case. Nonetheless, “the inconvenience caused to the parties by this delay is outweighed by the benefit brought about by providing a consistent body of law in an area we believe the Legislature clearly intended would be the province of our sister court.” Graffigna, supra, 351 Pa.Super. at 78, 505 A.2d at 273. Moreover, this is the first and hopefully the only appellate-level transfer of this case. We have considered the lack of previous transfer a significant factor in evaluating the need for judicial economy. See Graffigna, supra, 351 Pa.Superior Ct. at 78, 505 A.2d at 273; Karpe, supra, 315 Pa.Super. at 189, 461 A.2d at 861; Commonwealth v. 84-Qt. Btls. Bianco Di Verona Wine, 250 Pa.Super. 544, 378 A.2d 1282 (1977). Although we would not rely exclusively on this factor, we weigh it along with the other factors that support transfer in this case.

For the above reasons, we transfer this appeal to the Commonwealth Court for disposition on the merits.

Appeal transferred.

      . Appellees unfortunately failed to comply with the requirements of Pa.RX.P. 1020. Rule 1020(a) requires that a plaintiff who alleges more than one cause of action in a single complaint must state each cause "and any special damages related thereto ... in a separate count containing a demand for relief." Appellees did not assign each cause of action to a separate count in their complaint. Consequently, the complaint is a confusing hodgepodge of factual allegations, claims for relief and theories of recovery. Compliance with Rule 1020(a) would have eliminated much of the confusion.

      . This court may raise sua sponte the issue of whether we should transfer an appeal to the Commonwealth Court. See Brady Contracting Co. v. West Manchester Twp. Sewer Auth., 338 Pa.Super. 144, 487 A.2d 894 (1985).

      . We have not hesitated to transfer cases in deference to our sister court’s expertise. See, e.g., Donaldson v. Ritenour, 354 Pa.Super. 568, 512 A.2d 686 (1986); Eldred Twp. v. Monroe County, 330 Pa.Super. 74, 478 A.2d 1357 (1984); Osser v. City of Philadelphia, 295 Pa.Super. 447, 441 A.2d 1317 (1982); Commonwealth v. Sensi, 287 Pa.Super. 452, 430 A.2d 691 (1981). This factor should weigh more heavily in our consideration when the particular area of law is unsettled. See Valley Forge Industries, Inc. v. Armand Construction, Inc., 248 Pa.Super. 53, 61, 374 A.2d 1312, 1316 (1977).

      . Section 8501 of the Act, 42 Pa.C.S. § 8501, defines "employee" as follows:
      Any person who is acting or who has acted on behalf of a government unit whether on a permanent or temporary basis, whether compensated or not and whether within or without the territorial boundaries of the government unit, including ... any elected or appointed officer, member of a government body or other person designated to act for the government unit.

        Appellees’ complaint identified each of the appellants in their official capacity. We, of course, reserve for the Commonwealth Court the issue of whether appellants have waived or otherwise rendered inapplicable the immunity provisions of the Act.

      . See, e.g., Acker v. Spangler, 92 Pa.Commw. 616, 500 A.2d 206 (1985); Mascaro v. Youth Study Center, 89 Pa.Commw. 388, 492 A.2d 786 (1985); Morris v. Musser, 84 Pa.Commw. 170, 478 A.2d 937 (1984); Swartz v. Masloff, 62 Pa.Commw. 522, 437 A.2d 472 (1981). This court also has addressed this issue, although cursorily. See Overstreet v. Borough of Yeadon, 327 Pa.Super. 291, 475 A.2d 803 (1.984). Neither this court nor the Commonwealth Court has considered the relationship between immunity from suit under the federal Civil Rights Act, 42 U.S.C. § 1983, and immunity under the state Tort. Claims Act, 42 Pa.C.S. § 8541 et seq. Cf. Hardmon v. County of Lehigh, 613 F.Supp. 649, 654 n. 3 (E.D.Pa.1985).

      . We recognize that the Commonwealth Court could dispose of this appeal without reaching the immunity issues. Nonetheless, we must transfer the entire case. If we stayed transfer pending our resolution of the other issues, assuming we could do so, we would invite confusion and delay.

      . As we noted recently in Graffigna v. City of Philadelphia, 351 Pa.Super. 74, 78, n. 4, 505 A.2d 271, 273 n. 4 (1986), our decision in Casey v. Geiger, 346 Pa.Super. 279, 499 A.2d 606 (1985), which interprets the Political Subdivision Tort Claims Act, 42 Pa.C.S. § 8542, directly conflicts with the opinion of Judge Rogers in Johnson v. SEPTA, 91 Pa.Commw. 587, 498 A.2d 22 (1985). We hope to avoid a similar problem by transferring this case.