author: WIEAND, Judge.

text:
    635 A.2d 625
    COMMONWEALTH of Pennsylvania v. Gary D. MOORE, Appellant.
    Superior Court of Pennsylvania.
    Argued May 18, 1993.
    Filed Nov. 5, 1993.
    Reargument Denied Jan. 14, 1994.

      Joseph P. Green, Jr., West Chester, for appellant.
    Stuart B. Suss, Asst. Dist. Atty., West Chester, for Com., appellee.
    Before WIEAND, CIRILLO and CERCONE, JJ.
   WIEAND, Judge.

Gary D. Moore was tried by jury and was found guilty of homicide by vehicle while driving under the influence of alcohol, homicide by vehicle, driving while under the influence of alcohol, and related summary offenses. Post-trial motions were denied, and Moore was sentenced to serve a term of imprisonment for not less than three (3) years nor more than six (6) years. On direct appeal from the judgment of sentence, Moore challenges evidentiary rulings made by the trial court as well as the court’s jury instructions.

The evidence at trial was that during the afternoon and evening of January 19, 1990, Moore had been drinking beer with his uncle, Dwayne Canipe, and his uncle’s friend, Mark Pierson. Starting their drinking at Canipe’s apartment, the men stopped at a local bar shortly after 4:00 p.m. and then returned to Canipe’s apartment complex, where they spent several hours with friends who lived in other apartment units. Sometime after 8:00 p.m., Canipe took Moore’s keys, and later suggested that Moore spend the night, because it had begun sleeting and Moore had been drinking. Canipe last saw Moore at approximately 1:00 a.m. on January 20.

Shortly after 4:00 a.m. that morning, Timothy Snowden came upon the scene of an automobile accident while travelling north on Route 41 in Chester County. He stopped his car and proceeded toward the accident on foot. Hearing cries for help, he saw Gary Moore lying partially inside a van, which was one of the vehicles which had been involved in the collision. According to Snowden’s testimony at trial, when he helped Moore out of the van he detected an odor of alcohol. Snowden also examined the other vehicle, whose driver, Lawrence DeClue, had been killed in the collision. Snowden then stopped a passing truck, whose driver called for police assistance on his radio. While directing traffic around the accident scene, Snowden lost sight of Moore. Moore was next spotted by Christopher Wilson, whose car had been stopped in traffic heading south on Route 41. Wilson testified that Moore staggered to Wilson’s car, with face and knee covered with blood, and asked Wilson for a ride. Wilson allowed Moore to get into his car and then drove north on Route 41 to a convenience store, where he waited for medical assistance. Wilson also testified that he had noticed an odor of alcohol from Moore while in the car. An ambulance arrived shortly thereafter and took Moore to Southern Chester County Medical Center.

State Police Trooper John W. Laufer came to the accident scene at approximately 4:30 a.m. He observed that the van and the other vehicle, a Cadillac, had been involved in a head-on collision. It appeared that the van had been proceeding north and had crossed the center line of the highway, striking the south-bound Cadillac. Trooper Laufer went to the hospital to question Moore, where he told Moore that he was not under arrest but that Laufer and Sergeant Jeffrey Miller wished to ask him questions regarding the accident. Moore was also advised of his Miranda rights. He stated that he had left the Kennett Square area at approximately 11:30 p.m. in his father’s van, and that the next thing he had recalled was being picked up by Christopher Wilson. Trooper Laufer smelled alcohol on Moore’s breath and observed that Moore’s eyes were glassy and bloodshot. Moore told him that he had had three to four beers at his uncle’s apartment, but had stopped drinking at approximately 10:00 p.m. Laufer administered a horizontal gaze nystagmus test, which Moore failed. Moore refused to give a blood sample, because blood had already been taken by hospital personnel and he did not wish to have more drawn. On January 22, after he had been released from the hospital, Moore was arrested. Police subsequently obtained and served a subpoena for the production of Moore’s medical records at the preliminary hearing. At the same time, police requested and obtained copies of portions of the medical records from hospital personnel.

Appellant’s first argument is that the police seizure of his hospital records was improper and that information derived therefrom should have been suppressed. In reviewing the denial of a defense motion to suppress, an appellate court will

consider only the evidence presented by the prosecution, and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Assuming that there is support in the record for the suppression court’s findings, we are bound thereby and may reverse only if the legal conclusions drawn from those facts are in error.

Commonwealth v. Pestinikas, 421 Pa.Super. 371, 390, 617 A.2d 1339, 1349 (1992) (en banc).

Here, the suppression court found that a subpoena had been validly issued for appellant’s medical records. It had been duly issued to compel hospital personnel to bring Moore’s records to the preliminary hearing. When it was served upon a secretary in the records department of the hospital, however, the state trooper serving the subpoena requested an immediate copy which he could take with him. The secretary thereupon prepared and delivered to the trooper copies of appellant’s emergency room report, lab report and x-ray report. This enabled police to review the records prior to the preliminary hearing.

This is not a case in which a subpoena was used to obtain copies of appellant’s hospital records before any charges had been filed. Compare: Commonwealth v. Jolly, 337 Pa.Super. 130, 486 A.2d 515 (1984) and Commonwealth v. Haynos, 363 Pa.Super. 1, 525 A.2d 394 (1987), allocatur denied, 517 Pa. 604, 536 A.2d 1329 (1987). This case involves a subpoena duces tecum validly issued to require the presence of hospital records for a preliminary hearing. The subpoena, moreover, was not issued as part of a “fishing expedition” but upon probable cause to believe that appellant’s hospital records contained relevant information pertaining to appellant’s physical condition at the time of the fatal accident. Based upon observations and information given by witnesses, police were aware that appellant had been involved in a serious accident in which his vehicle had crossed into the lane for oncoming traffic and that alcohol had been detected on his breath. This constituted probable cause to believe that a criminal offense had been committed. Commonwealth v. Haynos, supra; Commonwealth v. Pelkey, 349 Pa.Super. 373, 378-379, 503 A.2d 414, 416 (1985).

Under these circumstances, we conclude, as did the trial court, that the police use of a subpoena to compel the production of appellant’s medical records for the preliminary hearing did not violate any constitutionally protected right of privacy which appellant possessed in his medical records. Cf. Commonwealth v. Hipp, 380 Pa.Super. 345, 551 A.2d 1086 (1988).

Appellant also contends that the trial court committed error when it allowed evidence of the results of blood serum tests to be received in evidence. Ah identical argument, however, was rejected by the Superior Court in Commonwealth v. Dagnon, 413 Pa.Super. 281, 605 A.2d 360 (1992).

At trial, a toxicologist testified that appellant’s blood alcohol level at the time of testing was 0.14%. He also testified, however, that without knowing when appellant had last consumed alcohol he could not state conclusively the blood alcohol level of appellant at the time of the accident two hours earlier. Appellant now argues that his blood level at the time of testing was irrelevant and should not have been received in evidence. At trial, however, appellant’s objection to the evidence was withdrawn; and in post-trial motions the issue was not raised. Under these circumstances the relevancy of the evidence as an issue was waived and has not been preserved for appellate review. Commonwealth v. Clair, 458 Pa. 418, 422-423, 326 A.2d 272, 274 (1974); Commonwealth v. Garofalo, 386 Pa.Super. 363, 367, 563 A.2d 109, 111 (1989). The waiver is not nullified merely because the trial court may have discussed the relevancy of the evidence in its opinion denying post-trial relief. Because the evidence had been received, moreover, the prosecuting attorney could properly refer to it during closing argument.

Appellant’s principal argument and the most difficult issue in this appeal concerns the trial court’s ruling which allowed the jury to hear and consider testimony that appellant had failed a horizontal gaze nystagmus test. The testimony was improper, it is argued, because the evidence failed to establish that the test had been generally accepted by the scientific community.

In Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977), the Supreme Court adopted language from Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923), and said:

Admissibility of the evidence depends upon the general acceptance of its validity by those scientists active in the field to which the evidence belongs[.]
“Just when a scientific principle of discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” Frye v. United States, 54 App.D.C. 46, 293 F. 1013, 1014 (1923) (emphasis supplied).

Id. 471 Pa. at 231, 369 A.2d at 1281. See also: Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d 830 (1992); Commonwealth v. Middleton, 379 Pa.Super. 502, 550 A.2d 561 (1988).

HGN, according to the testimony in this case, “is a test which relates to the detection of an involuntary jerking of the eyes, which [is] accentuated by the introduction of alcohol or other central nervous system depressants into the body.” “Horizontal gaze nystagmus is an involuntary, rapid oscillation of the eyes which occurs when a person looks to the side at an object, and is characterized by an involuntary pendular (back and forth) jerking movement of the eye. The field test is a measurement of the angle of onset of this jerking movement when the eye tracks a steadily moving object such as a pencil or pen-sized flashlight.... [T]he HGN test presumes that through measuring the point at which the subject’s eyes begin jerking, a rough approximation of blood alcohol content can be determined.” 4 Am Jur Proof of Facts 3d 439, 446.

In some jurisdictions, the results of an HGN test are admissible without the need for further scientific evidence. See: State v. Superior Court, 149 Ariz. 269, 718 P.2d 171 (1986) (HGN test satisfies Frye standard and is admissible to corroborate or attack, but not to quantify, the presence of blood alcohol); State v. Murphy, 451 N.W.2d 154 (Iowa 1990); State v. Clark, 234 Mont. 222, 762 P.2d 853 (1988); State v. Nagel, 30 Ohio App.3d 80, 506 N.E.2d 285 (1986); Finley v. State, 809 S.W.2d 909 (Tex.App.1991). See also: State v. Garrett, 119 Idaho 878, 811 P.2d 488 (1991); State v. Armstrong, 561 So.2d 883 (La.App. 2 Cir.1990). Other courts, however, have held that the results of HGN tests are not admissible without a showing of the validity of the underlying scientific principles. See: Ex parte Malone, 575 So.2d 106 (Ala.1990); State v. Witte, 251 Kan. 313, 836 P.2d 1110 (1992); State v. Borchardt, 224 Neb. 47, 395 N.W.2d 551 (1986); State v. Reed, 83 Or.App. 451, 732 P.2d 66 (1987); State v. Wheeler, 764 S.W.2d 523 (Mo.App.1989); State v. Barker, 179 W.Va. 194, 366 S.E.2d 642 (1988).

The issue has not yet been considered by the Supreme Court of Pennsylvania. On two occasions, however, the admissibility of HGN testing has been before the Superior Court, which has refused to allow the results of HGN testing without first establishing an adequate foundation. This foundation, the Court said in Commonwealth v. Miller, 367 Pa.Super. 359, 532 A.2d 1186 (1987), is not established without proof “that the scientific principles upon which the test is based are generally accepted by scientists active in the appropriate scientific communities.” Id. at 365-366, 532 A.2d at 1189. Later, in Commonwealth v. Apollo, 412 Pa.Super. 453, 603 A.2d 1023 (1992), allocatur denied, 531 Pa. 650, 613 A.2d 556 (1992), the Court held that the trial court had not abused its discretion where, despite testimony of a behavioral optometrist, it concluded from other evidence that the reliability of the horizontal gaze nystagmus test was not a settled proposition within the scientific community and ruled the evidence inadmissible. The testimony of the optometrist that the test was reliable, the Court observed, reflected his personal views and not necessarily those of the general scientific community.

In the instant case, the Commonwealth relied on the testimony of Michael F. Wahmann, a county detective who had been certified by the Department of Transportation as an instructor in the horizontal gaze nystagmus test. He testified that the principles upon which the test is based are generally accepted in the optometric and police science communities. He conceded, however, that there were differences of opinion regarding the reliability of HGN test results among ophthalmologists and in the medical community. On the basis of this evidence, the trial court found that the test was “acceptable in the police and also some portions of the scientific community” and held the test results to be admissible.

It may be that the Supreme Court, if it were to consider the issue, would hold that HGN testing meets the standards of Frye and Topa. At the present time, however, the present state of the law is as stated by the Superior Court in Miller and Apollo. ' Under thosé decisions, the testimony of County Detective Wahmann did not provide an adequate basis for finding that HGN testing had gained general acceptance in the scientific community, particularly in the field of medical science represented by ophthalmology. In this case, therefore, the results of an HGN test should not have been received. To correct this error, a new trial is necessary.

The error was not harmless. Appellant was subjected to a blood test approximately two hours after the accident. The result of the test was a finding of a blood alcohol content of 0.14 percent. As we have observed, however, the toxicologist who testified as a Commonwealth witness conceded that he could not estimate the alcoholic content of appellant’s blood at the time of the accident. Under these circumstances, we cannot determine beyond a reasonable doubt that the improperly received result of the HGN testing did not contribute to the jury’s finding. See: Commonwealth v. McGrogan, 523 Pa. 614, 568 A.2d 924 (1990); Commonwealth v. McGinnis, 511 Pa. 520, 515 A.2d 847 (1986).

We find no merit in appellant’s arguments that there were improprieties in the prosecuting attorney’s closing argument and in the trial court’s jury instructions. Because the case must be retried, moreover, the arguments of counsel and the instructions of the trial court may well be different at the next trial. Therefore, we find no reason to provide an extensive discussion of these issues.

Reversed and remanded for a new trial. Jurisdiction is not retained meanwhile.

      . 75 Pa.C.S. § 3735.

      . 75 Pa.C.S. § 3732.

      . 75 Pa.C.S. § 3731(a)(1) and (a)(4).

      . These included driving on the wrong side of the road in violation of 75 Pa.C.S. §§ 3301, 3302, 3309 and 3714. Moore was found not guilty of driving at an unsafe speed in violation of 75 Pa.C.S. § 3361, recklessly endangering another person in violation of 18 Pa.C.S. § 2706 and involuntary manslaughter in violation of 18 Pa.C.S. § 2504.


source: Caselaw Access Project

author: JOHNSON, Judge: OLSZEWSKI, Judge,

license: Public Domain

text:
    635 A.2d 630
    COMMONWEALTH of Pennsylvania, v. Michael T. ZELASNY, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 7, 1993.
    Filed Dec. 15, 1993.

      John E. Jones, III, Pottsville, for appellant.
    Leo Breznik, Asst. Dist. Atty., Shenandoah, for Com., appellee.
    Before OLSZEWSKI, KELLY and JOHNSON, JJ.
   JOHNSON, Judge:

Michael Zelasny entered a guilty plea to possession of drugs with intent to deliver and to criminal conspiracy, subject to his right to appeal the denial of his earlier motion to suppress tangible evidence. On this appeal, we are asked to determine whether exigent circumstances arose sufficient to support a warrantless stop and search of a motor vehicle believed to be involved in the transportation of controlled substances into the Commonwealth.

The trial court determined that probable cause to support issuance of the search warrant was lacking because the affidavit provided “no basis for the magistrate to conclude that drugs would be found in the vehicle at the time the warrant was issued.” We agree. However, the trial court denied the suppression motion after further determining the arresting officers searched the involved motor vehicle under exigent circumstances. We are unable to find exigent circumstances and, accordingly, reverse the judgment of sentence and remand for a new trial at which the evidence seized on the authority of the defective warrant would be excluded.

The trial court’s findings of fact follow:

1. During the Fall of 1990 and continuing into 1991, various police officers from different departments throughout Schuylkill County were working together as the Schuylkill County Drug Task Force in conjunction with agents from the Attorney General’s Office.
2. In October of 1990, Chief George Pennington of the Kline Township Police Department, who was acting as field operations supervisor for the Task Force, was informed by Officer John Phillips of the Mahanoy City Police that there had been numerous complaints of drug activity involving the defendants. Officer George Woodward of the Tamaqua Police Department also informed the Task Force that he “had drug charges on Frank Zelasny in the past.”
3. During that same period of time Agent Robert Bruce of the Attorney General’s Office, who was working with the Task Force, received independent information from three separate confidential informants that the defendants were dealing heroin and that it was their common practice to drive to New York City to purchase quantities of heroin and then return to Schuylkill County with the drugs, primarily to the Mahanoy City area.
4. On January 11, 1991, another confidential informant advised Sergeant Robert Ravina of Kliné Township, another member of the Task Force, that the informant had purchased controlled substances from Frank Zelasny.
5. On January 24, 1991, at 8:00 p.m., Sergeant Ravina received an anonymous phone call during which the caller stated that the defendants were going to New York City the next day to purchase heroin and were taking orders from people for drugs. The caller further stated that they would be travelling in one of three vehicles, which the caller described along with their license plate numbers, and that the defendants would be leaving the next morning after picking up someone’s money in McAdoo.
6. Based upon this information the Task Force set up surveillance on the morning of January 25, 1991, at 10:00 a.m. but observed nothing until 12:55 p.m. when they spotted a white Cadillac bearing Pennsylvania tags YRE-373, which was one of the vehicles described by the caller. The vehicle was carrying two unidentified white male occupants, and they followed the car through the Borough of McAdoo to the Consolidated Cigar Company located just outside of the Borough. They observed the vehicle approach the guard shack and park. After several minutes they saw another [unidentified white male approach the vehicle and speak briefly with the passenger. The vehicle drove back into McAdoo, stopped at a pharmacy and then left the Borough at about 2:20 p.m. The vehicle was followed as it continued out of Schuylkill County and onto Interstate 78 until it reached the New Jersey border, where surveillance was cut off.
7. Chief Pennington had independently observed the vehicle stopped at the cigar plant because he had earlier that day provided money to a confidential informant for the-purpose of making a controlled purchase of drugs from the defendants, and he.had been in a position to observe his informant approach the vehicle while it was stopped at the cigar plant and to see the informant give the money to Frank Zelasny while he and Michael Zelasny were sitting in the vehicle.
8. Although the Task Force officers did not follow the vehicle after it crossed into New Jersey, they were positioned at various points along the route so that they could follow if it returned the same way. The vehicle did return later that day and was again followed. Because of the limitations of their radio equipment, the officers following the vehicle could not inform Chief Pennington that it was returning until they had followed it all the way to the southern end of Schuylkill County where it was proceeding in a northwardly direction on Route 309. This radio message was not received by Chief Pennington until 7:45 p.m.
9. Having learned that the vehicle was already in Schuylkill County and returning on Route 309, the Task Force elected to stop the vehicle by faking a traffic accident so that they could stop all northbound traffic on Route 309 and thus intercept the suspect vehicle without arousing suspicion. At the same time the information received was called into Sergeant Ravina, who was back at the police station, so that he could prepare an affidavit and application for search warrant. Sergeant Ravina then contacted District Justice Andrew Zelonis, who issued the warrant for the search of the vehicle and any and all occupants at 8:00 p.m.
10. The defendant’s vehicle arrived at the faked traffic accident at approximately 8:15 p.m. As it came to the front of the line of traffic the Task Force officers, about fifteen in number, some in uniform and some in plain clothes, converged on the vehicle and pulled both defendants from inside. They identified themselves as officers and informed the defendants that they were there to execute a search warrant.
11. In order to minimize danger and avoid further interference with traffic, the defendants and the vehicle were taken to the nearby Rush Township police station where the vehicle and defendants were searched. At that point the warrant was read to the defendants, and Frank Zelasny was given a copy.
12. During the search of the vehicle[,] seventy-three bags of heroin were found in a container under the front seat of the vehicle on the passenger side. The defendants were then placed under arrest and searched, at which time a separate bag of heroin was found on Frank Zelasny.

Opinion, Baldwin, J., November 26, 1991, at 2-5.

On March 13, 1992, Zelasny pled guilty to charges of possession with intent to deliver a controlled substance and criminal conspiracy subject to his right to appeal the denial of his motion to suppress. A timely appeal was never filed. Zelasny then filed a petition pursuant to the Post Conviction Relief Act (P.C.R.A.), 42 Pa.C.S. § 9541 et seq., alleging ineffectiveness of counsel for failing to file a timely suppression appeal. 42 Pa.C.S. § 9543(a)(2)(h). After a hearing on December 3, 1992, the PCRA Court authorized Zelasny to file this appeal nunc pro tunc.

We agree with the distinguished trial court that there was no basis from which the issuing magistrate could conclude that drugs would be found in the vehicle at the time the warrant was issued. We are unable to agree that exigent circumstances existed, as found by the trial court, to support a warrantless search. We are also unable to agree with our learned colleague that the information recited in the affidavit “collectively demonstrated that there was a fair probability” that contraband would be lodged in the vehicle upon its reentry into Schuylkill County. We do not find the reliability of the anonymous and confidential informants to be enough to offset the lack of factual averments placing both the Zelasny brothers and drugs in the white Cadillac at about 8:00 P.M. on January 25, 1991, when the search warrant was issued.

Mr. Justice Papadakos, speaking for the Supreme Court of Pennsylvania, recently reiterated the principles to be applied in reviewing the sufficiency of a search warrant affidavit:

As we have often indicated, the legal principles applicable when reviewing the sufficiency of an affidavit to determine whether it establishes the probable cause necessary for the issuance of a warrant are well established. Before an issuing authority may issue a constitutionally valid search warrant, he or she must be furnished with information sufficient to persuade a reasonable person that probable cause exists to conduct a search. The information offered to demonstrate probable cause must be viewed in a common sense, nontechnical, ungrudging and positive manner. It must also be remembered that probable cause is based on a finding of the probability, not a prima facie showing of criminal activity, and that deference is accorded to a magistrate’s finding of probable cause....
Hearsay information is sufficient to form the basis of a warrant so long as the magistrate has been provided with sufficient information to make a “neutral” and “detached” decision about whether there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of the reviewing court is simply to ensure that the magistrate had a “substantial basis for ... concluding that probable cause existed.”

Commonwealth v. Baker, 532 Pa. 121, 126-27, 615 A.2d 23, 25 (1992) (citations omitted). The probable cause arising from the assertions within the affidavit must be sufficient to permit a reasonable conclusion that contraband will be found in a particular place, that is, where the informant said it would be, and that this belief existed at the time the warrant issued. Commonwealth v. Flaherty, 400 Pa.Super. 397, 403, 583 A.2d 1175, 1178 (1990).

Even assuming the reliability and veracity of the informants included in the affidavit here under review, there is not enough information included within the affidavit to permit a reasonable belief that drugs would be found in the vehicle at the time the warrant issued. The affidavit, in its entirety, provides:

1. In that your affiant is employed by the Schuylkill County Drug Task Force and currently assigned to Schuylkill County. As such I am empowered to conduct investigations of the various laws of the Commonwealth, including Act # 64, The Pa. Controlled Substance, Drug, Device and Cosmetic Act of 1972. During the course of such investigations, I am authorized to apply for, obtain, and serve Search Warrants, make seizures, and make arrests.
2. Your affiant has been a law enforcement officer since 1987, and as such, has been involved in numerous criminal investigations into violations of the drug laws. I have previously obtained Search Warrants which have resulted in the seizure of illegal drugs and documents, and the arrest of numerous drug law violators. I have received training in the investigations and techniques from the Penna. Office of Attorney General[,] [t]he U.S. Drug Enforcement Administration and the Penna. State Police.
3[.] On January 11, 1991, your affiant spoke to a reliable confidential police informant who related information to members of the Schuylkill County Drug Task Force. Such information has included the names of several area drug dealers who are known to your affiant as Glenn Lawson, Anthony Rish, Alan Rish, Anna Noccie just to mention a few. This confidential informant has made statements against his own penal interests admitting that he/she has made purchases of controlled substances from the subject Frank Zelasny. Furthermore, this informant is providing information in other drug investigations that has [included] the names of several area drug dealers, their addresses, phone numbers, the types of drugs they are dealing, the manner of packaging these drugs, their vehicles and registrations and a considerable amount [of] intelligence information all of which has been verified through various investigative techniques, and through the use of other confidential and reliable police informants.
4[.] In the month of October 1990 Chief Pennington of the Kline Township Police Department spoke with Mahanoy City Police, namely Officer John Phillips. Officer Phillips stated that there were numerous complaints of drug activity involving the Zelasny [brothers. Criminal investigator George B[.] Woodward Jr.[,] from the Tamaqua Police Department!,] has had drug charges on Frank Zelasny in the past. Agent Robert Bruce OAG/BNI has had occasion to interview at least (8) [t]hree [confidential] informants who have given true and accurate information in the past. These informants are all [independent] of each other and all three gave information that [the] Zelasny’s [sic] were dealing [h]eroin and that they could purchase drugs from Frank and Mike (Zelasny’s) [sic] [.] Due to time restraints Agent Bruce has not had time to accomplish a purchase. Confidential informants stated that it is common practice for the Zelasny’s [sic] to drive to New York City to purchase [quantities] of [h]eroin and return to Schuylkill County, [m]ainly the Mahanoy City Area.
5[.] On 24 January at approx. 8 P.M. Robert Ravina received an anonymous call at the Kline Twp. P.D. The caller stated that the Zelasny[s] were going to New York City tomorrow to buy [h]eroin and they were taking orders from people for drugs. Caller stated they would be in one of three vehicles. The first would be a 1988 Jeep pick-up truck with red trim, Pa. reg. # YD-39427, the second a 1971 Dodge Swinger, [brown] in color, Pa. reg. #WXG-436[;] [t]he third is a 1980 white Cadilac [sic], Eldorado, Pa. Reg. Temp. YRE-373. Caller stated [that it] would be in the A.M. that they would be going to leave[,] [a]fter picking up someones [sic] money in McAdoo. Based on the information received and the investigation conducted, surveillance [sic] was set up on 25, Jan. 1991 at 10:00 A.M. To further substantiate the information, [a]t 12:55 P.M. a white Cadillae[,] bearing Pa. Reg. # Temp. YRE-373[,] ... containing two white male occupants was followed through the borough of McAdoo and followed to the Consolidated Cigar Co.[,] Carbon Co.[,] just outside of McAdoo. The vehicle approached the guard shack and parked. After several minutes elapsed[,] a[n] unidentified white male, thin build long black hair[,] approached and spoke [briefly] with the passenger of the white Cadillac. On 25 Jan. 1991, at approx. 2:20 P.M. the vehicle left McAdoo after [stopping] at a drug store (DeBalko Pharmacy)[.] Officers from the Schuylkill County Drug Task Force followed the suspect vehicle to the New Jersey border by Rte # 78.
6) Information stated that the Zelasny[s] will be transporting controlled substances which is a violation of Act # 64, of the Controlled Substance, Drug, Device and Cosmetic Act of 1964 as amended.
7) Based upon the information received and the investigation conducted[,] your affiants have firm [belief] the actors will return to Schuylkill County with the heroine [sic]. Your [a]ffiants believe that the Zelasny brothers[,] Frank and Mike[,] are engaged in the illegal and ongoing storage and sales from the white Cadillac described above.

Search warrant affidavit at 1, 2, and 3.

The informant(s) reported numerous complaints of drug activity by the Zelasny brothers. They indicated that the Zelasnys were dealing in heroin, that drugs could be purchased from them, and that it was common practice for the Zelasnys to drive to New York City to purchase drugs and return to Schuylkill County with them.

On January 24, 1991, the affiant received information that the Zelasnys were going to New York City the next day to purchase heroin and that they were taking orders from people for drugs. The affiant was told that the Zelasnys would be traveling in one of three specifically described vehicles, and that they would be leaving for New York City after picking up someone’s money in McAdoo Borough. The next day, the drug task force observed one of the three described vehicles, a white Cadillac, occupied by two unidentified white males. The Cadillac was followed through McAdoo to a cigar company building located just outside the borough. Another unidentified white male was observed speaking with the passenger of the vehicle. Shortly thereafter, the vehicle departed the McAdoo area and was followed along Interstate 78 until the Cadillac reached and crossed the New Jersey border.

Based on this information, the affiant alleged that he had a firm belief that “the actors will return to Schuylkill County with the heroin.” Sergeant Ravina, the affiant, delayed applying for the search warrant until the evening of January 25th when the vehicle occupied by the still unidentified white males had returned to Schuylkill County. However, the fact of the vehicle’s return or its location within the Commonwealth is not set forth in the affidavit. No evidence outside the affidavit may be considered by the issuing authority or by the suppression hearing judge. Pa.R.Crim.P. 2003(a) and (b). See Commonwealth v. Milliken, 450 Pa. 310, 315 n. 3, 300 A.2d 78, 81 n. 3 (1973).

Even applying the test of the totality of the circumstances, Commonwealth v. Gray, 509 Pa. 476, 485, 503 A.2d 921, 925 (1985), in a most liberal way, when one stays within the four corners of the affidavit, there is totally lacking any fair probability that drugs would be found in any particular place at the time the affidavit was issued. All that is established by the affidavit is that two unidentified white males in a white Cadillac of unknown ownership exited Pennsylvania along Interstate 78 one afternoon and that the Zelasnys — who are not placed in the Cadillac — are known drug dealers.

We find the analysis by the suppression hearing court on this point as set forth in its Opinion of Court filed November 26, 1991, at 10-11, to be sound:

On the evening before applying for the search warrant Sergeant Ravina received an anonymous phone call with additional information. Sergeant Ravina was not in a position to vouch for either the reliability of the informant or the manner in which the information was obtained. Through surveillance the next day the officers were able to confirm that one of the vehicles identified by the caller was in the McAdoo area making stops, as the caller had predicted. The vehicle contained two white male occupants, but the affidavit gave no indication to the district justice that the occupants had been identified as the defendants. The vehicle was then followed to the New Jersey border along Interstate 78. Although not stated in the affidavit, assuming the district justice was reasonably familiar with the possible routes from Schuylkill County to New York City, he could have recognized 1-78 as the route most likely to be taken by a vehicle enroute to New York City; however, even assuming that the affidavit gives the magistrate sufficient information from which he could reasonably conclude that the vehicle was occupied by the defendants and on its way to New York City, there is nothing in the affidavit that indicates the frequency that the defendants were alleged to travel to New York for drugs, how long they would stay, and when they could be expected to return. There is no basis from which the district justice could conclude that drugs would be found in the vehicle at the time that the warrant was issued. We are, therefore, constrained to conclude that the warrant could not support the search of the defendants’ vehicle or the defendants.

As did the Honorable William E. Baldwin, we conclude that the warrant could not support the search of the white Cadillac or the occupants of that car. Commonwealth v. Flaherty, supra.

Turning to the alternative grounds upon which the trial court sustained the search, we are unable to find exigent circumstances on these facts. The trial court relied upon the testimony of Chief George Pennington of the Kline Township Police Department to demonstrate the existence of probable cause and exigent circumstances that would excuse the absence of a warrant at the outset. We believe this was error.

Exigent circumstances exist when the inevitable delay involved in getting a warrant must give way to an urgent need for immediate action. Commonwealth v. Conn, 377 Pa.Super. 442, 547 A.2d 768 (1988). The exigent circumstance exception applies when evidence will be destroyed or when the safety of officers or other individuals is at stake. Id.; Commonwealth v. Williams, 411 Pa.Super. 586, 602 A.2d 350 (1992).

First, we are unaware of any case that supports the application of the exigent circumstance exception in the face of a defective warrant. Where a warrant has been' sought, issued, executed, and subsequently found to be defective, the exigent circumstance exception simply cannot come into play. The exception is inconsistent with a warrant application.

Moreover, in this case, the Task Force was not moving to capture evidence that was likely to be destroyed. The first information that a New York buy was in the making was received by the Task Force the evening of January 24, 1991. The Task Force received additional information both early the next day and continuing up until the white Cadillac departed Pennsylvania sometime after 2:20 P.M. that same day. Upon re-entry into the Commonwealth, the Cadillac was again followed by Task Force members. The Task Force had intentionally stationed Sergeant Ravina at the police station so that he could prepare an affidavit and application for a search warrant. The warrant was issued at 8:00 P.M. It was not until at least fifteen minutes later that the white Cadillac was stopped at the front of a line of traffic along State Route 309. If the Task Force had not stopped the vehicle, it would likely have continued to proceed back to its point of origin with whatever contraband that may have been in the vehicle still intact. Under no circumstances could these facts be viewed as supporting an urgent need for immediate action -without a warrant.

The trial court was correct in concluding that the warrant could not support the search of the vehicle. It erred, we believe, in seeking to apply the exigent circumstance exception after having already determined that the warrant application was defective.

We do not read Judge Baldwin’s Opinion of Court filed November 26, 1991 as primarily attacking either the veracity or the reliability of the informants. Rather, Judge Baldwin found, and we agree, that when the four corners of the affidavit are carefully examined, there is nothing in that affidavit to place the Zelasnys in the white Cadillac at any time on January 25, 1991, nor is there anything in the affidavit to permit a reasonable conclusion that drugs would be found in the Cadillac at the time the warrant issued.

At the time the warrant issued, the occupants of the white Cadillac remained unidentified in the affidavit. There was no claim that drugs had ever been seen in the Cadillac. The affidavit contained no information concerning the actual itinerary of the Cadillac or its unidentified occupants at any time while it remained outside the Commonwealth. Although the affiant did allege his belief that the Zelasnys were engaged in the illegal and ongoing storage and sale of drugs from the Cadillac, there is nothing included in the affidavit setting forth prior knowledge by any informant that the Cadillac was so being used. Cf. Commonwealth v. Flaherty, supra.

We do not find the reliability of the anonymous and confidential informants to be enough to offset the lack of factual averments placing both the Zelasny Brothers and drugs in the white Cadillac at about 8:00 P.M. on January 25, 1991, when the search warrant was issued. We accordingly are constrained to vacate the judgment of sentence, reverse the order denying the pretrial motion to suppress, and remand this matter for a new trial at which the evidence seized on the authority of the defective warrant would be excluded.

Judgment of sentence VACATED. Order denying motion to suppress REVERSED. Case REMANDED for a NEW TRIAL.

OLSZEWSKI, J. files a Dissenting Opinion.

OLSZEWSKI, Judge,

dissenting:

There were four police officers from three separate police stations in Schuylkill County who were aware, through investigations and prior police contact, that the Zelasny brothers sold drugs. At least three reliable informants told these officers, members of the Schuylkill County Drug Task Force, that it was common practice for the Zelasnys to drive to New York, purchase drugs, return to Mahanoy City, Schuylkill County, and resell the drugs. Another informant telephoned Officer Robert Ravina and told him that the next morning the Zelasnys were going to pick up some money in the town of MacAdoo, drive to New York in one of three specified vehicles, and purchase drugs. The next morning, the Task Force witnessed “two white males” enter one of the automobiles, drive to MacAdoo, pick up some money, and drive to New York. Officer Ravina included this information in an affidavit, concluding that he had a “firm belief’ that the car would return from New York with drugs and that the Zelasny brothers would sell those drugs. My learned colleagues hold that these allegations were insufficient to establish probable cause to believe that drugs were in the car. I respectfully dissent.

The majority concludes that the affidavit’s allegations are insufficient to identify the Zelasny brothers as the drivers of the car. This hypertechnical reasoning expects a neutral magistrate to ignore the obvious: nearly every officer who was a member of the Schuylkill County Drug Task Force, the same force to which Officer Ravina belonged, personally knew the Zelasny brothers and their propensity to distribute drugs from New York. Nonetheless, since Officer Ravina chose to use the term “white males,” instead of “the Zelasnys,” to describe the occupants of the car, his “firm belief’ that the Zelasny brothers were selling drugs from a car which, as predicted, stopped in MacAdoo to engage in an illicit monetary transaction en route to a known drug source was pure speculation. We are asked to: (1) ignore the fact that this affidavit was prepared at 8:00 p.m., a mere fifteen minutes before the car returned to Schuylkill county, and (2) suppose that it could have been any “two white males” who, as predicted, drove a particular car to a particular destination, picked up money, and drove to a known drug source. When the Zelasny brothers turned out to be the actual drivers of the car, this was, of course, mere happenstance.

Whether an affidavit alleges facts which support a finding of probable cause is one that should be made in a “common sense, nontechnical, ungrudging and positive manner.” Commonwealth v. Baker, 532 Pa.Super. 121, 126, 615 A.2d 23, 25 (1992). The majority gives mere lip service to this standard by refusing, as we explain above, to allow the magistrate to read the affidavit in its context. Moreover, the learned majority does a disservice to its own rigid reading of the affidavit by referring to the drivers of the car as the “unidentified” drivers. A close reading of the affidavit discloses otherwise:

5. ... Based on the information received and the investigation conducted, surveillance [sic] was set up on 25, Jan. 1991 at 10:00 A.M. To further substantiate the information, [a]t 12:55 P.M. a white Cadillac^,] bearing Pa. Reg. # Temp. YRE-373[,] ... containing two white male occupants was followed through the Borough of MacAdoo and followed to the Consolidated Cigar Co.[,] Carbon Co.[,] just outside of MacAdoo. The vehicle approached the guard shack and parked. After several minutes elapsed[,] an unidentified white male, thin build long black hair[,] approached and spoke briefly with the passenger of the white Cadillac.

(Emphasis added.) Under the plain wording of the affidavit, it was the person at the cigar factory who was “unidentified,” not the passengers of the white Cadillac. I see it as perfectly logical to allow a magistrate to conclude, given the task force’s knowledge of the Zelasnys’ identity and the significant factual corroboration of the informant’s tip, that there was a fair probability that the Zelasnys were “the two white males” who were driving the white Cadillac and that drugs were contained in the vehicle.

The majority’s reliance on Commonwealth v. Flaherty, 400 Pa.Super. 397, 583 A.2d 1175 (19.90), moreover, is misplaced. In that case, Flaherty was a known dealer of percocet pills. An informant told police that Flaherty was so successful that he purchased a new car with the profits he reaped. The informant also indicated that Flaherty “will deliver pills to special customers using his car.” Id. at 400, 583 A.2d at 1176. Based on these allegations, the police obtained a search warrant and, while Flaherty was washing his car, executed it. We held that there was no probable cause to believe that there were drugs in the car at the time the warrant issued. The informant did not indicate that he had ever seen drugs in the car and only implicated Flaherty in uncertain future conduct. We noted that

absent from [the informant’s] declaration is any reference to a time frame from which to anticipate drugs being delivered from [Flaherty’s] vehicle. The particular frequency of such deliveries in the past, as well as the probability that such might continue at any particular time in the future remains wholly a mystery. Were such deliveries made by [Flaherty] hourly, daily, weekly, monthly, or at some other interval of time? “Any selection of time on our part would be purely conjectural — so too must have been the magistrate’s determination.”

Id. at 404, 583 A.2d at 1179 (quoting Commonwealth v. Conner, 452 Pa. 333, 340-41, 305 A.2d 341, 345 (1973)).

Here, the magistrate hardly needed to engage in any temporal speculation regarding when drugs might be located in the white Cadillac. The affidavit stated that the Zelasnys, known drug dealers, would be traveling to and returning from New York, a known drug source, on January 25. On January 25, while the car was returning from New York, thus corroborating the tip, the police applied for a search warrant. This case is entirely antithetical to Flaherty because here the informant predicted precisely when the criminal conduct would occur, whereas in Flaherty there was no such indication. What was conjectural in Flaherty was imminent here.

I simply cannot accept my colleagues’ postulation that the affidavit fails to identify with fair probability the Zelasny brothers as the drivers of the white Cadillac. Moreover, even if the Zelasnys were not identified properly, it is more than mere coincidence that “two white males” drove the Cadillac out of Mahanoy City, stopped at a factory in MacAdoo, and drove on a highway which leads directly to New York. These actions alone, which fully corroborate the informant’s tip, indicate to me that there was a fair probability that criminal activity was transpiring, and that drugs would be located in the car. If the police work in this case, as fully evidenced by the allegations in the affidavit, does not present probable cause, the Schuylkill County Police Drug Task Force has my sympathy.

      . It is also interesting to note that in Flaherty, the police executed a speculative warrant while defendant was washing his car. There was absolutely no independent corroboration that any illegal activity was occurring in that car. Here, the police waited until their tip was fully corroborated to seek and execute a warrant. It seems that in this case, where there is a higher degree of urgency than in Flaherty, the police are being punished for being scrupulous. Although the majority is correct in asserting that we cannot look outside of the affidavit’s four corners, I cannot realistically entertain any notion that the police did not precisely know who the Zelasnys were, that they knew the Zelasnys were driving the vehicle, and that all of this was lost on the magistrate. Indeed, it is undisputed that the “unidentified” male at the cigar factory was an informant employed by another member of the Drug Task Force, specifically instructed to give “buy money” to the Zelasnys. By engaging in trifles, the majority simply ignores the reality of the situation and the context of the affidavit.


author: HOFFMAN, Judge.

text:
    635 A.2d 638
    Marsha E. SCHMIDT, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Aug. 31, 1993.
    Filed Dec. 14, 1993.

      Bruce E. Cooper, Harrisburg, for appellant.
    Stephen L. Banko, Harrisburg, for appellee.
    Before DEL SOLE, FORD ELLIOTT and HOFFMAN, JJ.
   HOFFMAN, Judge.

This is an appeal from the July 9, 1992 order granting appellee’s, State Farm Mutual Automobile Insurance Co., preliminary objection in the nature of a motion to dismiss. Appellant, Marsha E. Schmidt, presents the following question for our review:

Did the lower court err in retroactively applying 75 Pa. C.S.A. § 1797(b), a 1990 statute, to an insurance contract entered into in 1988 thereby dismissing the Appellant’s Complaint?

Appellant’s Brief at 1. For the reasons set forth below, we affirm.

The instant action arises out of a November 1, 1991 complaint filed by appellant for payment of medical expenses under an insurance contract entered into between herself and appellee. Appellee filed a preliminary objection alleging that as it had complied with the peer review procedures set forth in 75 Pa.C.S. § 1797(b) and as appellant had not exhausted the statutory remedies set forth therein, appellant’s complaint should be dismissed. The trial court granted appellee’s preliminary objection and this timely appeal followed.

75 Pa.C.S. § 1797, as amended on February 7, 1990, applies to “payments by property and casualty insurers for medical treatment or services rendered on or after April 15, 1990, for the treatment or care of persons covered by automobile insurance .... ” 31 Pa.Code Ch. 68, § 1(a). As appellant’s underlying action relates to medical expenses incurred on or after April 30,1991, the present version of section 1797 should apply to the case at bar. Appellant argues, however, that as her insurance contract predated the February 7, 1990 amendments and as 75 Pa.C.S. § 1797(b) impairs her substantive rights under her insurance contract, section 1797(b) should not apply here. We disagree.

In Lynn v. Prudential Property and Casualty, 422 Pa.Super. 479, 619 A.2d 779 (1993), this court reasoned that as 75 Pa.C.S. § 1797(b) merely changes the procedure for challenging medical treatment and expenses, it does not impair any obligation owed under an insurance contract. Id. at 487, 619 A.2d at 783 n. 5 (“Section 1797(b) has been interpreted to allow for an appeal to a court of law if an insured or provider disagrees with the determination of a PRO and reconsideration is denied. Thus, the PRO process does not impair any obligation; it merely changes the procedure for challenging the medical treatment and expenses.”) (citing Elliott v. State Farm Mutual Automobile Insurance Co., 786 F.Supp. 487 (E.D.Pa.1992); Danton v. State Farm Mutual Insurance Co., 769 F.Supp. 174 (E.D.Pa.1991)). Accordingly, section 1797(b) applies to disputes relating to medical services rendered on or after April 15, 1990, regardless of when the underlying insurance contract was entered into. Since appellant did not pursue reconsideration of the peer review organization’s finding that medical treatment was unnecessary as required by 75 Pa.C.S. § 1797(b), its claim was properly dismissed. We therefore affirm the order of the trial court.

Order affirmed.

      . This peer review plan was implemented to provide a more efficient method of reviewing the legitimacy and necessity of medical treatment provided to injured persons covered under automobile insurance policies.


author: BECK, Judge:

text:
    635 A.2d 639
    HIGH-TECH-ENTERPRISES, INC., Appellant, v. GENERAL ACCIDENT INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1993.
    Filed Dec. 15, 1993.

      George A. Gallenthin, Doylestown, for appellant.
    Gary A. Nau, Philadelphia, for appellee.
    Before ROWLEY, President Judge, and OLSZEWSKI and BECK, JJ.
   BECK, Judge:

This is the appeal of High Tech Enterprises, Inc. (“High Tech”) from an order sustaining the preliminary objections of appellee General Accident Insurance Company (“General Accident”), and dismissing High Tech’s complaint. We affirm.

Appellant High Tech is a corporation engaged in the automobile collision repair business. On January 12, 1992, a vehicle owned by Edward Hayes was involved in an accident which resulted in property damage covered under an automobile insurance policy issued by appellee General Accident. The insurance policy contains the following language:

TRANSFER OF YOUR INTEREST IN THIS POLICY
A. Your rights and duties under this policy may not be assigned without our written consent. However, if a named insured shown in the Declarations dies, coverage will be provided for:
1. The surviving spouse if resident in the same household at the time of death. Coverage applies to the spouse as if a named insured shown in the declarations; and
2. The legal representative of the deceased person as if a named insured shown in the Declarations....

(Emphasis added). Neither of the exceptions to the non-assignment clause exists in this case.

After his accident, Edward Hayes contracted with High-Tech to make repairs to his automobile. The repairs cost a total of $2,793.45. Mr. Hayes paid a deductible of $568.81. Appellee General Accident paid $1447.91, leaving an unpaid balance of $776.73. General Accident disputed the reasonableness and necessity of this amount. Appellant High-Tech filed this action against General Accident for fraud on the contract, bad faith (42 Pa.C.S. § 8371 (Purdon 1993)) and violation of the Unfair Trade Practices and Consumer Protection Law (73 Pa.S. §§ 201-1 et seq. (Purdon 1993)), for its refusal to tender the unpaid repair cost balance.

High-Tech asserts that Edward Hayes assigned his claims and rights against his insurer to High-Tech when he executed a “Repair Authorization and Power of Attorney,” which provides in relevant part:

... I also grant to [High Tech] and or it’s [sic] representatives irrevocable power of attorney to collect and retain any and all differences required to repair my vehicle
Further, for and in consideration of services and materials rendered or to be rendered by [High-Tech], I hereby irrevocably assign to [High-Tech] and/or it’s [sic] representatives all of my right, title and interest to collect and retain any and all damages by law against my insurance carrier or any other party to which I may be entitled by reason of damage to my insured motor vehicle, including but not limited to bad faith penalties, if any, attorney’s fees, interest and costs of collection....

Mr. Hayes never obtained his insurer’s consent to this purported “assignment.”

General Accident filed preliminary objections to High-Tech’s complaint, asserting that the policy language regarding assignment rendered any purported transfer of interest to High-Tech without General Accident’s consent void. Therefore, the real party in interest, the insured Edward Hayes, was not a party to the action. The Honorable Marjorie C. Lawrence sustained the preliminary objections, and dismissed the complaint. This timely appeal followed.

When reviewing the trial court’s decision on preliminary objections, we must accept as true all well-pleaded facts in the complaint, as well as all inferences reasonably deducible therefrom. Allstate Ins. Co. v. Fioravanti, 451 Pa. 108, 299 A.2d 585 (1973). Bearing this standard in mind, we find that appellant cannot maintain this action as a matter of law, and we affirm the trial court’s decision.

It is clear that General Accident’s insured, Edward Hayes, is the true owner of any potential claim for unpaid insurance benefits. The non-assignment language of the insurance policy is clear and unambiguous, and therefore must be applied here. Stump v. State Farm Mut. Auto. Ins. Co., 387 Pa.Super. 310, 564 A,2d 194 (1989); Vogel v. National Grange Mut. Ins. Co., 332 Pa.Super. 384, 481 A.2d 668 (1984). Obviously, the non-assignment clause is designed to protect the insurer from a risk it did not knowingly assume. Without his insurer’s written consent, Hayes’ alleged assignment of his contractual rights under the policy never became effective; it was in violation of the express language of the insurance contract. See Christ Gospel Temple v. Liberty Mutual Ins. Co., 273 Pa.Super. 302, 417 A.2d 660 (1979). It is obvious that High-Tech, a non-party to the insurance contract, never acquired any right to sue General Accident. If there does exist a claim for the unpaid benefits, it belongs to the insured Edward Hayes.

High-Tech argues that, even if Hayes’ attempted assignment is invalid, it still should be able to maintain this action because it is in the nature of a subrogation claim, and also because High-Tech is the foreseeable third party beneficiary of the insurance contract between General Accident and Hayes. These arguments are meritless.

First, this is not a subrogation action. Subrogation is an equitable doctrine involving the right of legal substitution, and may take place with or without contractual agreement between parties. Dominski v. Garrett, 276 Pa.Super. 18, 419 A.2d 73 (1980). The right of subrogation is granted as a means of placing the ultimate burden of a debt upon the one who in good conscience ought to pay it, and is generally applicable when one pays out of his own funds a debt or obligation that is primarily payable from the funds of another. Id.; School District of the Borough of Aliquippa v. Maryland Cas. Co., 402 Pa.Super. 569, 587 A.2d 765 (1991). It usually applies where one party is required to indemnify another or else face legal liability.

The payor must have acted on compulsion, and it is only in cases where the person paying the debt of another will be liable in the event of a default or is compelled to pay in order to protect his own interests, or by virtue of legal process, that equity substitutes him in the place of the creditor without any agreement to that effect; in other cases the debt is absolutely extinguished.

Dominski, supra, 276 Pa.Super. at 26, 419 A.2d at 77 (quoting from Home Owners’ Loan Corp. v. Crouse, 151 Pa.Super. 259, 262, 30 A.2d 330, 331 (1943)).

High-Tech argues that it “stands in the shoes” of Edward Hayes because it was compelled to “perform to public safety standards imposed by contract, statute, rule of law [and] public policy.” However, there can be no question that High-Tech — in the business of automobile repairs — was a “volunteer.” It was in no way compelled by law to take on a repair job for Edward Hayes, to charge him the amount it did, or to accept less than complete payment from him. The doctrine of subrogation will not be invoked to protect mere volunteers. Dominski, supra. Therefore, High-Tech cannot claim a right of subrogation to Edward Hayes’ insurance coverage.

Finally, High-Tech asserts that it is entitled to maintain this action as the “foreseeable, vested third-party beneficiary to the insurance contract.” In making this argument, High-Tech contends that both Edward Hayes and General Accident intended that a collision damage repair business such as High-Tech would be a beneficiary of any insurance proceeds. High-Tech claims that Restatement (Second) of Contracts § 302 supports its position:

§ 302. Intended and Incidental Beneficiaries
(1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either
(a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or
(b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.
(2) An incidental beneficiary is a beneficiary who is not an intended beneficiary.

Restatement (Second) of Contracts § 302 (1981) (emphasis added). High-Tech argues that this Restatement section, as adopted by our supreme court in Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983), directs that High-Tech is an intended third party beneficiary of the General Accident insurance policy, and therefore can maintain this action.

We need look no further in our analysis of this argument than the first sentence of § 302, as it immediately undermines High-Tech’s theory. General Accident and its insured had “otherwise agreed” that no assignment of the insurance policy benefits could be effected without the insurer’s written consent, and written consent was not obtained here. There simply was no expressed intention on the part of both contracting parties that appellant benefit from their insurance contract.

It does not appear from the record why the insured Edward Hayes did not himself pursue this action against his insurer. Nevertheless, it is clear that under the law he is the only one who had the contractual relationship with General Accident, and the only one who could maintain an action arising out of that relationship. High-Tech has no such right.

Order affirmed.

      . Moreover, the facts presented in Guy are easily distinguished from this case. The underlying contract in Guy was one between a testator and an attorney who was hired to draft a will including Mrs. Guy as a beneficiary. When the relevant portion of the will was declared void, Guy brought a legal malpractice action against the attorney. There, because the intent to benefit the third party beneficiary was clear — it was expressly included in the will — and also because the promisee (the testator) was unable to enforce the contract, Guy’s legal malpractice action was permitted to stand. Id., 501 Pa. at 59, 459 A.2d at 751.


author: McEWEN, Judge:

text:
    635 A.2d 643
    NATIONWIDE INSURANCE COMPANY, Appellee, v. John CALHOUN, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 21, 1993.
    Filed Dec. 15, 1993.

      Daniel R. Sherzer, Norristown, for appellant.
    Mark C. Schultz, West Conshohocken, for appellee.
    Before McEWEN, DEL SOLE and HOFFMAN, JJ.
   McEWEN, Judge:

This appeal has been taken from the judgment entered pursuant to the order which granted the petition of Nationwide Insurance Company (hereinafter appellee) and modified an amended arbitration award which had been entered in the amount of $400,000.00, in favor of appellant, John Calhoun. The trial court, finding that the arbitrators had committed an error of law in reforming the policy, modified the amended award of the arbitrators to provide for an award of $300,000.00 in favor of appellant. We affirm.

Appellant, John Calhoun, sustained serious personal injuries as a result of an accident involving his motorcycle and an automobile. At the time of the accident, John Calhoun resided with his mother during the week and with his sister and her husband on the weekends.

Having received the $100,000.00 bodily injury liability policy limits from the tortfeasor’s carrier and the policy limits of $15,000.00 in underinsured benefits through his own motorcycle insurance policy, John Calhoun made a claim for underinsured motorist benefits under a policy issued by Nationwide Insurance Company to his mother, and under a separate policy issued by Nationwide Insurance Company to his sister and brother-in-law.

Appellant claimed to be a “resident relative”, entitled to underinsured motorist benefits under both policies based upon his claim that he resided at both residences and was, therefore, a resident relative, entitled to uninsured motorist benefits, under both policies.

The policy issued by Nationwide to appellant’s mother insured three cars which his mother owned and on which she carried liability and uninsured/underinsured motorist coverages of $100,000.00 per car. The policy issued by Nationwide to appellant’s sister and her husband insured two cars with liability and uninsured/underinsured motorist limits of $50,-000. 00 per car. Appellant’s mother had an additional car on her policy that was owned by appellant’s brother, Thomas, and that was insured under the policy issued by Nationwide Insurance Company with comprehensive coverage only. Cf. 75 Pa.C.S. § 1714. Appellant’s sister also had an additional car on her policy, also owned by Thomas, and insured only for comprehensive coverage. Appellant sought to stack the underinsured coverages applicable to the five vehicles owned by his mother and sister and also claimed that he was entitled to underinsured motorist coverages applicable, by operation of law, to the vehicles owned by Thomas Calhoun on which there was no liability or uninsured/underinsured motorist coverages.

Pursuant to the terms of the Nationwide policies, the parties selected the arbitrators and submitted the disputes concerning coverage to the arbitrators. The arbitration panel, after a hearing, entered an award in the amount of $350,000.00 in favor of appellant.

Nationwide filed a petition in the Court of Common Pleas, pursuant to 42 Pa.C.S. § 7315, to vacate the arbitration award, contending that the award was contrary to law. The Court of Common Pleas granted the petition, vacated the award, and remanded the case to the arbitration panel with directions to enter an award consistent with policy coverages and to include an explanation of the award.

The arbitration panel filed an amended award on December 11, 1992, which provided for an award of $400,000.00 in favor of Calhoun. Two of the three arbitrators found that John Calhoun resided with his mother and that the fourth car on the policy, owned by Thomas, should be considered to have underinsurance coverage. The latter determination was predicated on the fact that Mrs. Calhoun never signed a waiver of underinsurance benefits as required by 75 Pa.C.S. § 1791 when she covered the fourth car with comprehensive insurance only.

Nationwide filed a petition to modify the amended arbitration award and, following argument, the trial court granted the petition and modified the amended award to reflect a verdict of $300,000.00, representing the coverages on the three vehicles owned and insured by Doris Calhoun. This appeal timely followed.

Appellant contends that the order which modified the amended award of the arbitrators must be vacated since the trial court employed an incorrect scope of review in ruling on the petition to modify. Appellant argues in the alternative that the court erred in vacating and modifying the award since it was within the exclusive jurisdiction of the arbitrators to reform the provisions of the insurance policy to comply with the provisions of the Motor Vehicle Financial Responsibility Act.

Initially, we must resolve the issue of the appropriate standard of review to be employed by the trial court in ruling on a petition to vacate or modify an arbitration award where arbitration has been conducted pursuant to a policy provision providing for arbitration in accordance with the provisions of the Pennsylvania Arbitration Act of 1927.

Statutory arbitration is currently provided for by the 1980 Uniform Arbitration Act, 42 Pa.C.S. §§ 7301 et seq. Section 7302(a) of the Act provides:

(a) General Rule. — An agreement to arbitrate a controversy on a nonjudicial basis shall be conclusively presumed to be an agreement to arbitrate pursuant to Subchapter B (relating to common law arbitration) unless the agreement to arbitrate is in writing and expressly provides for arbitration pursuant to this subchapter or any other similar statute, in which case the arbitration shall be governed by this subchapter.

42 Pa.C.S. § 7302(a).

The policy in the instant case is in writing and expressly provides for arbitration pursuant to the Arbitration Act of 1927. As noted by this Court in Cigna Insurance Co. v. Squires, 427 Pa.Super. 206, 628 A.2d 899 (1993):

Our legislature, when enacting the 1980 Uniform Arbitration Act, was cognizant of the changes in the standard of review contained in the 1980 Act from the broad “error of law” standard of review contained in the 1927 Uniform Arbitration Act (now repealed). The 1927 Act provided:
§ 171 Modifying or correct award, grounds
In either of the following cases the court shall make an order modifying or correcting the award upon the application of any party to the arbitration:
(d) Where the award is against the law, and is such that had it been a verdict of the jury the court would have entered different or other judgment notwithstanding the verdict.

Our legislature anticipated that difficulties might be caused for parties who intended arbitration to occur under the provisions of the 1927 Act, rather than those of the Act in its present form, when articulating the special applications provision of § 7302(d)(2). See Popskyj [v. Keystone Insurance Co., 388 Pa.Super. 429, 565 A.2d 1184], supra. Therefore, a historical note as to applicability was added to § 7302 indicating under what circumstances § 7302(d)(2) should be applied. That note states:

Application
“The provisions of 12 Pa.C.S. § 7302(d)(2) (relating to special application) shall be applicable to any nonjudicial arbitration pursuant to:
“(1) An agreement made prior to the effective date of this act which expressly provides that it shall be interpreted pursuant to the law of this Commonwealth and which expressly provides for statutory arbitration.
“(2) An agreement heretofore or hereafter made which expressly provides for arbitration pursuant to the former provisions of the Act of April 25, 1927____, relating to statutory arbitration.”

Cigna Insurance Co. v. Squires, supra 427 Pa.Super. at 211, 628 A.2d at 901 (emphasis supplied).

Since the insurance policy in the instant case expressly provides for arbitration pursuant to the Arbitration Act of 1927, the standard of review applicable in a proceeding to modify or vacate an arbitration award is that set forth at Section 7302(d)(2) of the 1980 Arbitration Act:

(2) Where this paragraph is applicable a court in reviewing an arbitration award pursuant to this subchapter shall, notwithstanding any other provision of this subchapter, modify or correct the award where the award is contrary to law and is such that had it been a verdict of a jury the court would have entered a different judgment or a judgment notwithstanding the verdict.

42 Pa.C.S. § 7302(d) (emphasis supplied). See also: Dearry v. Aetna Life and Casualty Ins. Co., 415 Pa.Super. 634, 639-41, 610 A.2d 469, 472-473 (1992); Popskyj v. Keystone Insurance Co., 388 Pa.Super. 429, 565 A.2d 1184 (1989), allo. denied, 525 Pa. 602, 575 A.2d 567 (1990).

Thus, contrary to the argument of appellant, the trial court in the instant case properly reviewed the amended award of the arbitrators under the error of law standard provided by 42 Pa.C.S. § 7302(d)(2).

Appellant argues in the alternative that even if the trial court employed the appropriate standard of review, the arbitrators correctly concluded that the absence of a written waiver of underinsurance coverage, as required by 75 Pa.C.S. § 1791, required that the policy issued to appellant’s mother be reformed to provide for underinsurance coverage in the amount of $400,000.00. Section 1731(a) of the MVFRL provides:

No motor vehicle liability insurance policy shall be delivered or issued for delivery in this Commonwealth, with respect to any motor vehicle registered or principally garaged in this Commonwealth, unless uninsured motorist and underinsured motorist coverages are offered therein or supplemental thereto in amounts as provided in section 1734 (relating to request for lower limits of coverage). Purchase of uninsured motorist and underinsured motorist coverages is optional.

75 Pa.C.S. § 1731(a) (emphasis supplied).

Section 1734 of the MVFRL provides:

A named insured may request in writing the issuance of coverage under section 1731 (relating to availability, scope and amount of coverage) in amounts equal to or less than the limits of liability for bodily injury.

75 Pa.C.S. § 1734.

Section 1791 of the MVFRL additionally provides:

It shall be presumed that the insured has been advised of the benefits and limits available under this chapter provided the following notice in bold print of at least ten-point type is given to the applicant at the time of application for original coverage, and no other notice or rejection shall be required ....

75 Pa.C.S. § 1791.

This court has previously held that where an insurer delivers a policy of motor vehicle insurance providing liability coverage, where there is no signed waiver providing for lower underinsured and uninsured motorist coverages, as required by 75 Pa.C.S. § 1731 and 1734, the policy will be construed as providing underinsured and uninsured motorist coverages in amounts equal to the liability coverage purchased by the named insured. See, e.g.: Botsko v. Donegal Mutual Insurance Co., 423 Pa.Super. 41, 620 A.2d 30 (1993); Boyce v. St. Paul Property and Liability Insurance Co., 421 Pa.Super. 582, 592, 618 A.2d 962, 968 (1992). See also: Gutman v. Worldwide Insurance Co., 428 Pa.Super. 309, 630 A.2d 1263 (1993); Pennsylvania Financial Responsibility Assigned Claims Plan v. English, 427 Pa.Super. 105, 628 A.2d 847 (1993).

The arbitrators in the instant case found that Doris Calhoun, the named insured under the policy issued by Nationwide and pursuant to which appellant was awarded underinsured motorist benefits, did not own the fourth vehicle and did not insure it for liability coverages. While every vehicle registered and garaged in Pennsylvania must be insured for liability coverage pursuant to the Motor Vehicle Financial Responsibility Law, this is a duty borne by the owner, in this case Thomas Calhoun, the brother of appellant, and not Doris Calhoun. Cf. Allen v. Erie Insurance Co., 369 Pa.Super. 6, 534 A.2d 839 (1987); DeMichele v. Erie Insurance Exchange, 385 Pa.Super. 634, 561 A.2d 1271 (1989). The express provision of the MVFRL that appellant here relies on provides that:

[n]o motor vehicle liability insurance policy shall be delivered or issued for delivery in this Commonwealth ... unless ... underinsured motorist coverages are offered therein ... in amounts as provided in section 1734....

75 Pa.C.S. § 1731(a) (emphasis supplied).

Section 1734 provides that the insured may request in writing coverages “in amounts equal to or less than the limits for bodily injury ”. The policy covering Thomas Calhoun’s vehicle, however, was not a “motor vehicle liability insurance policy” and thus did not provide for any coverages for “bodily injury”, much less $100,000.00 of liability coverage.

We find, without hesitation, that the trial court properly concluded that Sections 1731 and 1734 of the Motor Vehicle Financial Responsibility Law were, as a matter of law, inapplicable to a policy providing for comprehensive coverage only for a non-owned vehicle. Thus, the majority of the arbitrators committed an error of law in concluding that the Motor Vehicle Financial Responsibility Law provided authority for them to rewrite the policy issued to Doris Calhoun so as to provide $100,000.00 in underinsured motorist benefits for the vehicle owned by Thomas Calhoun, for which Doris Calhoun was not responsible and for which no liability coverage whatsoever had been purchased.

We, therefore, affirm the judgment entered on the amended arbitration award as modified by the trial court.

Judgment affirmed.

      . The amended award provided, inter alia:

        Based upon the evidence presented and the relevant policy language, the arbitrators found as a matter of fact and a matter of law that the claimant was a "resident relative” of the home of his mother, Doris Calhoun, with whom the claimant resided during the week.
      Based upon the evidence presented and the relevant policy language, the arbitrators found as a matter of fact and a matter of law that the claimant was not a "resident relative” of the home of his sister and brother-in-law, Doris and Robert DiEva, with whom the claimant resided on weekends.
      The claimant was further entitled to "stack” the underinsured motorist coverage on each vehicle covered by the underinsured motorist provisions of the Nationwide policy issued to Doris Calhoun.
      Three of the vehicles covered by the Nationwide policy issued to Doris Calhoun, a Buick, a GMC truck and a Pontiac, were each covered by liability and underinsured motorist coverage in the amount of $100,000.00 per person and $300,000.00 per occurrence. Doris Calhoun’s fourth covered vehicle, a Camaro owned by her son, Thomas, was covered by comprehensive and theft insurance.
      The fourth covered vehicle was registered with the Pennsylvania Department of Transportation.
      Although a vehicle registered with the Pennsylvania Department of Transportation is required to be insured against liability, prior to the accident in which the claimant was injured, the liability coverage on the vehicle was discontinued.
      A majority of the arbitrators found that the coverages available with respect to the fourth covered vehicle and the requirements of law with respect to coverage were not properly explained to the insured by Nationwide and that Nationwide had an obligation under the policy and as a matter of law to provide such an explanation to its insured.
      As a result of the failure of Nationwide to properly explain the coverages available to the insured as required by law, and as a result of the failure of Nationwide to obtain a written waiver of underinsured motorist coverage, a majority of the arbitrators found both as a matter of fact and as a matter of law that the Nationwide policy issued to Doris Calhoun should be interpreted to provide both liability and underinsured motorist coverage with respect to the fourth covered vehicle.
      In view of the fact that each of the three other vehicles insured pursuant to the Nationwide policy issued to Doris Calhoun provided both liability and underinsured motorist coverage in the amount of $100,000.00 per person and $300,000.00 per occurrence, a majority of the arbitrators initially found as a matter of fact that had the insured been properly advised by Nationwide of the coverages available and required by law, the insured would have maintained both liability and underinsured motorist coverage on the fourth covered vehicle not owned by her in the amount of $100,000.00 per person and $300,000.00 per occurrence, the coverages which the insured maintained with respect to each of the three other covered vehicles. A majority of the arbitrators, therefore, concluded that the claimant was entitled as a "resident relative” of the household of Doris Calhoun, the insured, to collect underinsured motorist coverage in the amount of $100,000.00 on each of the four vehicles covered by the policy of insurance issued by Nationwide to Doris Calhoun or a total recovery of $400,000.00.

      . Act of April 25, 1927, P.L. 381, as amended, 5 P.S. § 169, repealed by the Act of October 5, 1980, P.L. 693, 42 Pa.C.S. § 20002.

      . The arbitrators found that the damages sustained by appellant exceeded all available coverages, including those allegedly provided by the policy issued to appellant's sister.


author: CAVANAUGH, Judge:

text:
    635 A.2d 648
    SANTE FE ENERGY RESOURCES, INC. v. Herbert MANNERS and Patti Manners, His Wife, Appellants.
    Superior Court of Pennsylvania.
    Submitted Oct. 5, 1993.
    Filed Dec. 14, 1993.

      Timothy P. Morris, Asst. Dist. Atty., Punxsutawney for appellants.
    Michael S. Delaney, Indiana, for appellee.
    Before CAVANAUGH, KELLY and BROSKY, JJ.
   CAVANAUGH, Judge:

This is an appeal from an Order issued by the Honorable William Henry in Jefferson County permanently enjoining appellants, Herbert and Patti Manners, from blocking access to the oil and gas wells on their property. The sole issue before this court is whether the merger of a corporate party to a lease contract with a third party constitutes an assignment of the lease contract to the new entity. We conclude it does not and affirm.

On June 3,1980 appellants entered into an oil and gas lease agreement with Robert M. Hanak (referred in the lease as “the Gas Company”). The lease gave the Gas Company the exclusive right to explore and mine for oil, gas, and all other liquid and gaseous hydrocarbons on appellants’ twenty-five acre plot of land. In return several benefits would inure to appellants including one-eighth (jé) the price received at the well head or lease line for all gas produced.

Paragraph twenty-six of the contract is at issue in this case and states in its entirety:

26. ASSIGNMENT. The parties hereto agree that the Gas Company may enter into an assignment or joint venture with the Adobe Oil and Gas Corporation, which is specifically consented to herein. The parties, however, agree that there shall be no further assignments without the express written consent of the Landowners.

The lease was subsequently assigned to Adobe Oil and Gas Corporation. From 1982 to 1992 Adobe Oil and Gas Corporation transferred its working interest to its subsidiaries: Adobe Mining Company, Adobe Exploration ’80, Ltd., and Adobe Executive Partnership. In 1985 Adobe Oil and Gas Corporation merged with Madison Resources, Inc. to form Adobe Resources Corporation. On May 19, 1992 Adobe Resources Corporation merged with appellee, Santa Fe Energy Resources, Inc. Adobe Resources Corporation ceased to exist.

On July 15,1992 appellants blocked the road to the well site and “shut-in” the well claiming that the assignment clause in paragraph twenty-six had been breached. As a result of the Order permanently enjoining them, appellants have filed this appeal.

We conclude that when a corporate party to a contract merges with a third party the contract is not assigned to the new entity by operation of law. This conclusion is not inconsistent with the settled principle that when corporations merge the surviving entity succeeds to both the rights and obligations of the constituent corporations. See Park v. Greater Delaware Valley Savings & Loan Association, 362 Pa.Super. 54, 523 A.2d 771 (1987). In distinguishing between assignment and succession in the context of a merger this court has stated:

Even if it can be said in any proper sense of the word that the rights of action and property of the constituent corporations are assigned to the consolidated company resulting from the merger, such an assignment would be by operation of law. A more accurate description of the transfer would be to say that the consolidated corporation succeeds to the rights of action and property of the constituent companies.

Pittsburgh Terminal Coal Corporation v. Potts, 92 Pa.Super. 1, 12 (1927) (emphasis added), quoted in Commonwealth v. Willson Products, Inc., 412 Pa. 78, 194 A.2d 162 (1963). See also Segal v. Greater Valley Terminal Corporation, 78 N.J.Super. 42, 187 A.2d 374 (1963) (New Jersey court interpreting Pennsylvania law concluded that a corporate lessee’s merger with its parent did not constitute an assignment of its rights and obligations under the lease agreement). Thus, we conclude that in the instant matter there was not (as there could not be) any assignment of the gas exploration rights to Santa Fe, and that no assignment occurred by operation of law. In sum, we hold that a merger of corporate enterprises does not automatically and without more result in an assignment of the rights of the merging parties.

Order affirmed.

      . The court was interpreting the meaning of the Act of May 3, 1909, P.L. 408, as amended by the Act of April 29, 1915, P.L. 205 (later amended by the Act of August 17, 1951, P.L. 1267, codified as 15 P.S. §§ 801 to 805, and effectively repealed October 1, 1989) in the context of a merger. The relevant language of the act stated: "all the estate and property, real and personal, and all rights of action of each of said corporations, shall be deemed and taken to be transferred to and vested in the said new corporation, without any further act or deed.”
      The subject matter of 15 P.S. §§ 801 to 805 (repealed) is now addressed at 15 Pa.C.S.A. § 1921 et seq. and states:
      § 1929. Effect of merger or consolidation
      (b) Property rights. — All the property, real, personal and mixed, and franchises of each of the corporations parties to the merger or consolidation, and all debts due on whatever account to any of them ... shall be deemed to be transferred to and vested in the surviving or new corporation ... without further action....
      15 Pa.C.S.A. § 1929(b). We find these statutory provisions to be synonymous and therefore rely on Pittsburgh Terminal for support.


text:
    635 A.2d 649
    PACKER SOCIETY HILL TRAVEL AGENCY, INC., Appellee, v. PRESBYTERIAN UNIVERSITY OF PENNSYLVANIA MEDICAL CENTER a/k/a Presbyterian Medical Center of Philadelphia, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 13, 1993.
    Filed Dec. 28, 1993.

      Jonathan B. Sprague, Philadelphia, for appellant.
    Warren L. Soffian, Philadelphia, for appellee.
    Before WIEAND, CIRILLO and HESTER, JJ.
   WIEAND, Judge.

Is an action on a written contract not under seal subject to a four year statute of limitations or a six year statute of limitations? The trial court held that the applicable period of limitation was six years and denied a defense motion for judgment on the pleadings based upon a four year period of limitations. The Superior Court allowed an interlocutory appeal under Pa.R.A.P. 1311 to review the trial court’s ruling before the parties incurred the time and expense of trial.

The present action was commenced on November 22, 1991, by Packer Society Hill Travel Agency (Packer) against Presbyterian-University of Pennsylvania Medical Center (Presbyterian). The action was based on an alleged breach of a written travel agreement executed by the parties on April 10, 1985. Pursuant to the terms of the agreement, according to the complaint, Packer was to provide travel services for employees of Presbyterian for a period of two years from March 1, 1985, to March 1, 1987. As a part of the same agreement, Packer allegedly agreed to install in Presbyterian’s medical center certain computer equipment necessary to provide the travel services contemplated by the parties’ agreement. As consideration, Presbyterian allegedly agreed to pay Packer a credit of 1% of the gross sales made as well as the value of the computer equipment installed. Presbyterian initially made periodic payments to Packer based upon invoiced travel sales but not, according to Packer, in correct amounts. After January 13, 1986, however, Presbyterian stopped making any payments. A demand for payment failed to produce results. It was not until November 22, 1991, however, that Packer filed the present action to recover (1) a balance of $4,199.85 owed for travel services, and (2) the costs of installing the computer equipment. Presbyterian filed an answer containing new matter in which it asserted, inter alia, that Packer’s action was barred by the applicable four year statute of limitations. Thereafter, relying on the four year statute of limitations contained in 42 Pa.C.S. § 5525(8), Presbyterian filed a motion for judgment on the pleadings. The court denied the motion, holding that the applicable statute of limitations was that appearing in 42 Pa.C.S. § 5527.

The application of the statute of limitations to an alleged cause of action is a matter of law to be determined by the court. Romeo & Sons, Inc. v. P.C. Yezbak & Son, Inc., 421 Pa.Super. 333, 335, 617 A.2d 1320, 1322 (1992). Neither the research of the parties nor the independent research conducted by this Court, however, has disclosed an appellate court decision which has specifically considered the issue now before us. The issue, therefore, is one of first impression.

The statute of limitations at 42 Pa.C.S. § 5525 provides in pertinent part as follows:

§ 5525. Four year limitation
The following actions and proceedings must be commenced within four years:
(8) An action upon a contract, obligation or liability founded upon a writing not specified in paragraph (7) [relating to actions upon negotiable or nonnegotiable bonds, notes or other similar instruments in writing], under seal or otherwise, except an action subject to another limitation specified in this subchapter.
Added 1982, Dec. 20, P.L. 1409, No. 326, art. II, § 201, effective in 60 days.

The section relied upon by Packer appears at 42 Pa.C.S. § 5527 as follows:

§ 5527. Six year limitation
Any civil action or proceeding which is neither subject to another limitation specified in this subchapter nor excluded from the application of a period of limitation by section 5531 (relating to no limitation) must be commenced within six years.
As amended 1982, Dec. 20, P.L. 1409, No. 326, art. II, § 201, effective in 60 days.

Packer argues that the words “or otherwise” in 42 Pa.C.S. § 5525(8) should be interpreted to mean that for the four year limitation to be applicable the writing must be under seal or “in like respects.” We reject this argument.

When faced with an issue of statutory construction, the goal of a court should be to effectuate the intention of the legislature. 1 Pa.C.S. § 1921(a). “When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded____” 1 Pa.C.S. § 1921(b). Here, the words of the statute are clear and free of ambiguity. The statute of limitations for an action based on “a contract, obligation or liability founded upon a writing ... under seal or otherwise” is four years. The words and phrases used in a statute are to be construed according to rules of grammar and in accord with their common and approved usage. 1 Pa.C.S. § 1903(a). The term “otherwise,” when used as an adjective is synonymous with “different,” or “other.” MacMillan Contemporary Dictionary 713 (1979). It seems clear, therefore, that the words “under seal or otherwise” can only mean “under seal or not under seal.” It cannot mean under seal or in a manner having the effect of a seal.

Our construction of the statute is supported by prior law and by the circumstances which caused the legislature to enact the Judicial Code. Prior to enactment of the Judicial Code, which became effective on June 27, 1978, the statute of limitations for suits upon instruments not under seal was six years. Klein v. Reid, 282 Pa.Super. 332, 334, 422 A.2d 1143, 1144 (1980). See: Act of March 27, 1713, 1 Sm.L. 76, § 1, 12 P.S. § 31 (now repealed). Suits upon instruments under seal were not subject to a period of limitations; rather, there was a presumption of payment after twenty years. Gordon v. Sanatoga Inn, Inc., 429 Pa.Super. 537, 537, 632 A.2d 1352, 1352 (1993). When the Judicial Code was initially enacted, a four year limitation was established for:

(1) An action upon a contract, under seal or otherwise, for the sale, construction or furnishing of tangible personal property or fixtures.
(2) Any action subject to 13 Pa.C.S. § 2725 (relating to statutes of limitations in contracts for sale).
(3) An action upon an express contract not founded upon an instrument in writing.
(4) An action upon a contract implied in law, except an action subject to another limitation specified in this sub-chapter.

42 Pa.C.S. § 5525. A six year limitation, however, was established, inter alia, for actions upon (1) judgments or decrees; (2) contracts, obligations or liabilities founded upon bonds, notes or other written instruments; and (3) official bonds. 42 Pa.C.S. § 5527. Under these provisions, therefore, the statute of limitations applicable to oral contracts, contracts implied in law and contracts of sale was four years; whereas, the period of limitations applicable to written contracts was six years.

This was changed in 1980, when the legislature adopted a twenty year limitation for actions based on contracts under seal. 42 Pa.C.S. § 5529(b). Then, finally, in 1982, the legislature adopted 42 Pa.C.S. § 5525(8) and § 5527 in their present forms. Now the statute of limitations for all written contracts is four years and the statute of limitations for contracts under seal, irrespective of the provisions of 42 Pa.C.S. § 5525, is twenty years. Thus, the statute of limitations applicable to all actions on contracts not under seal is uniform. The period of limitations is four years.

The interpretation urged by appellee and accepted by the trial court would establish a four year statute of limitations for contracts under seal and a six year statute of limitations for written contracts not under seal. Such an interpretation would be contrary to the history of our system of law in this Commonwealth, which has always recognized a longer period of limitation for contracts under seal. The legislature has given no basis for believing that it intended such an absurd result.

Although the precise issue raised in this appeal has not previously been before the appellate courts, we observe that prior decisions of the Superior and Commonwealth Courts have uniformly applied the statute of limitations consistently with our interpretation. Thus, in Unisys Finance Corp. v. U.S. Vision, Inc., 428 Pa.Super. 107, 630 A.2d 55 (1993), it was held that an agreement to lease equipment’was a contract founded on a writing and subject to the statute of limitations at 42 Pa.C.S. § 5525(8). Similarly, in Horowitz v. Horowitz, 411 Pa.Super. 21, 600 A.2d 982 (1991), the four year statute of limitations was held applicable to a written separation agreement. In Storch v. Miller, 137 Pa.Commw. 325, 585 A.2d 1173 (1991), the Commonwealth Court held that the four year statute of limitations was applicable to a written collective bargaining agreement. See also: Southeastern Pennsylvania Transportation Authority v. Frankford 5206 Bar, Inc., 138 Pa.Commw. 209, 217 n. 3, 587 A.2d 855, 859 n. 3 (1991) (written lease). The federal courts have interpreted the statute similarly. In Dodge v. Susquehanna University, 796 F.Supp. 829 (M.D.Pa.1992), the court held that a claim based on a written contract of employment was governed by the four year statute of limitations found at 42 Pa.C.S. § 5525(8); and in Wheeler v. Nationwide Mutual Ins. Co., 749 F.Supp. 660 (E.D.Pa.1990), the court held that an action to recover uninsured motorist benefits pursuant to a written policy of insurance was subject to the four year statute of limitations contained in 42 Pa.C.S. § 5525(8).

For all these reasons, therefore, we conclude that a cause of action for an alleged breach of the written contract in the instant case, which was not under seal, is subject to the four year statute of limitations at 42 Pa.C.S. § 5525(8).

The statute of limitations begins to run on a claim from the time the cause of action accrues. 42 Pa.C.S. § 5502; Cucchi v. Rollins Protective Services Co., 377 Pa.Super. 9, 34, 546 A.2d 1131, 1144 (1988), rev’d on other grounds, 524 Pa. 514, 574 A.2d 565 (1990). In general, an action based on contract accrues at the time of breach. Id.; Sadtler v. Jackson-Cross Co., 402 Pa.Super. 492, 499, 587 A.2d 727, 731 (1991). Here, it is not disputed that Presbyterian ceased making payments under the travel agreement on January 13, 1986. This, then, was the date on which the four year period of limitations began to run on Packer’s breach of contract claim. After January 13, 1990, the claim was barred. Packer did not commence the present action until November 22,1991, twenty-two months after the statute had run. Packer’s action, therefore, was untimely. It was barred by the statute of limitations at 42 Pa.C.S. § 5525(8).

Reversed and remanded for the entry of judgment in favor of the appellant medical center.

      . These averments of the complaint are in contrast to the provisions of the agreement, which suggest that Packer, not Presbyterian, is to pay the 1% sales credit and assume the cost of installing the computer equipment.