author: HESTER, Judge:

text:
    611 A.2d 1245
    COMMONWEALTH of Pennsylvania v. Albert D. TILLERY, Appellant.
    Superior Court of Pennsylvania.
    Argued March 12, 1992.
    Filed June 30, 1992.

      James A. Snell, Lebanon, for appellant.
    Before POPOVICH, HUDOCK and HESTER, JJ.
   HESTER, Judge:

In this appeal, Albert D. Tillery, appellant, contends that during his jury trial, the Commonwealth incorrectly used as incriminating evidence the fact that he had invoked his fourth amendment constitutional right against unreasonable searches and seizures. We agree with this contention, and we reverse and remand for a new trial.

The record reveals the following. Appellant was charged at two separate criminal docket numbers of one count each of receiving stolen property and conspiracy to commit retail theft. The evidence presented against appellant at the jury trial on this matter was succinctly summarized by the trial court:

The pertinent facts as set forth by the record and reviewed in the light most favorable to the Commonwealth, reveal the following. The charges against Defendant stem from an incident which occurred on September 20, 1989, at the Boscov’s Department Store at 22nd and Cumberland Streets, Lebanon, Pennsylvania. Loretta Marie Kirst, a Boscov’s security guard at the time, testified that [using a hidden camera,] she observed the Defendant and Kenneth Tillery [appellant’s nephew,] enter the store on the date in question (N.T. 10). According to Kirst, while Defendant was standing next to Kenneth Tillery, Kenneth removed two watches from the jewelry department and placed them in his pocket (N.T. 11-12). The two men then left the store without paying for the merchandise (11-14).
Thirty minutes later, Kenneth Tillery returned to the store alone (N.T. 13). He went to the jewelry department and stole three additional watches (N.T. 13). William M. Reigle, II, a security guard at Boscov’s was notified that Kenneth was leaving the premises with the merchandise (N.T. 22). Reigle followed Kenneth to an automobile in the store parking lot. The trunk of the vehicle was opened and the Defendant was sitting in the driver’s seat (N.T. 22-23). Reigle identified himself as a Boscov’s security guard and asked to speak to the Defendant (N.T. 23). Defendant ignored Reigle’s request, rolled up the car window, and drove away (N.T. 23). Reigle then radioed Kirst who was inside the store and told her the license number of the vehicle and its general description (N.T. 25). He then instructed her to relay this information to the Lebanon City Police Department (N.T. 25).
Shortly thereafter, Brett A. Hopkins, a Cornwall Borough Police Sergeant, stopped the Defendant’s vehicle on State Route 322 in Cornwall Borough, Lebanon County, Pennsylvania (N.T. 32). Hopkins asked the Defendant and Kenneth Tillery to step out of the automobile (N.T. 33). After a conversation with these men, the officer found two stolen wristwatches in a sock worn by Kenneth Tillery (N.T. 33). Both men were then arrested (N.T. 33). Since the automobile belonged to the Defendant, Hopkins requested permission from Defendant to search the vehicle (N.T. 34). This request was denied (N.T. 34). As a result, both individuals were taken into custody and a search warrant for the automobile was obtained (N.T. 34). When the trunk of the vehicle was opened, the police discovered three large duffel bags containing various items displaying price tags from numerous retail establishments (N.T. 35). Subsequently, some of these items were identified as having been stolen.

Trial court opinion, 6/10/91, at 3-4.

Based on that evidence, the jury convicted appellant of receiving stolen property and conspiracy to commit retail theft. On July 24, 1991, the trial court imposed a sentence of twelve to twenty-four months imprisonment on each conviction, with the sentences to be served consecutively. Initially, we note that appellant mistakenly filed his appeals from the June 10, 1991 orders denying post-trial motions. In criminal cases, appeals must be taken from the final judgment of sentence. E.g., Commonwealth v. Gumpert, 354 Pa.Super. 595, 512 A.2d 699 (1986). However, since the judgments of sentence were imposed within thirty days of the date of the notice of appeal, June 25, 1991, this appeal is reviewable. Commonwealth v. Hamaker, 373 Pa.Super. 510, 512 n. 4, 541 A.2d 1141, 1142 n. 4 (1988) (premature appeal from order denying post-trial motions reviewed since judgment of sentence had been imposed); Commonwealth v. Gumpert, supra (same); Pa.R.A.P. 905(a).

We address first appellant’s contention that the evidence was insufficient to sustain his convictions because if he is entitled to relief on this basis, he must be discharged instead of awarded a new trial. Our standard of review in this context is well established.

We begin with the familiar and well established admonition that our standard of review for challenges to the sufficiency of evidence is limited. We must determine whether, viewing all the evidence at trial, as well as all reasonable inferences to be drawn therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense was proven beyond a reasonable doubt. Both direct and circumstantial evidence receive equal weight when assessing the sufficiency of the evidence____ All reasonable inferences, consistent with the evidence, must be viewed in the Commonwealth’s favor as verdict winner.

Commonwealth v. Grekis, 411 Pa.Super. 494, 504, 601 A.2d 1275, 1280 (1992) (citations omitted). It is within the province of the fact finder to determine the weight to be given to each witness’s testimony and to believe all, part, or none of the evidence. Commonwealth v. Parker, 387 Pa.Super. 415, 564 A.2d 246 (1989).

In the present case, appellant was convicted of conspiracy to commit retail theft. The crime of conspiracy is set forth in 18 Pa.C.S. § 903, which states:

(a) Definition of conspiracy. — A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

We stated previously:

“The essence of criminal conspiracy is a common understanding, no matter how it came into being, that a particular criminal objective be accomplished.” Commonwealth v. Carter, 272 Pa.Superior Ct. 411, 416 A.2d 523 (1979); Commonwealth v. Anderson, [265 Pa.Super. 494, 402 A.2d 546 (1979)]. By its very nature, the crime of conspiracy is frequently not susceptible of proof except by circumstantial evidence. Commonwealth v. Carter, supra; Commonwealth v. Kwatkoski, 267 Pa.Superior Ct. 401, 406 A.2d 1102 (1979). And although a conspiracy cannot be based upon mere suspicion or conjecture, Commonwealth v. Anderson, supra, a conspiracy “may be inferentially established by showing the relationship, conduct or circumstances of the parties, and the overt acts on the part of the co-conspirators have uniformly been held competent to prove that a corrupt confederation has in fact formed.” Commonwealth v. Carter, supra, quoting Commonwealth v. Horvath, 187 Pa.Superior Ct. 206, 211, 144 A.2d 489, 492 (1958).

Commonwealth v. Volk, 298 Pa.Super. 294, 300-01, 444 A.2d 1182, 1185 (1982); see also Commonwealth v. Lanager, 360 Pa.Super. 578, 521 A.2d 53 (1987); Commonwealth v. Ford, 315 Pa.Super. 281, 461 A.2d 1281 (1983); Commonwealth v. Lamb, 309 Pa.Super. 415, 455 A.2d 678 (1983).

Among the circumstances which are relevant, but not sufficient by themselves, to prove a corrupt confederation are: (1) an association between alleged conspirators; (2) knowledge of the commission of the crime; (3) presence at the scene of the crime; and (4) in some situations, participation in the object of the conspiracy. The presence of such circumstances may furnish a web of evidence linking an accused to an alleged conspiracy beyond a reasonable doubt when viewed in conjunction with each other and in the context in which they occurred____

Commonwealth v. Olds, 322 Pa.Super. 442, 447-48, 469 A.2d 1072, 1075 (1983), quoting Commonwealth v. Lamb, supra; see also Commonwealth v. Grekis, supra.

In the present case, appellant and his nephew acted in concert, appellant had knowledge of the commission of the crime since he viewed it, appellant was present at the scene, and he participated in his nephew’s actions by driving the getaway car. In these circumstances, the existence of a conspiracy was established, and appellant’s conviction of conspiracy to commit retail theft rests on sufficient evidence.

To convict appellant of receiving stolen property, it was necessary for the Commonwealth to show three elements beyond a reasonable doubt. The evidence must establish that the property was stolen, that appellant was in receipt, possession or control of it, and that appellant had “guilty knowledge”, that is, that he knew or had reason to know that the property was stolen----

Commonwealth v. Grekis, supra, 411 Pa.Super. at 505, 601 A.2d at 1280 (citations omitted).

In the present case, it was established that the property was stolen and further, that appellant had guilty knowledge since he observed the theft. Finally, we conclude that considering the totality of the circumstances, appellant exercised sufficient dominion or control over the goods to establish receipt of them. He owned and was driving the getaway car, in which the goods were located. He attempted to flee with the goods when approached by the security guard. Furthermore, the goods were located in a section of the car over which Kenneth did not have exclusive dominion and control. See Commonwealth v. Walters, 250 Pa.Super. 446, 378 A.2d 1232 (1977) (jury could infer that defendant had power to control stolen goods due to fact that he partially owned trailer where goods were found and was present in trailer at various times when goods were there); see also Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727 (1972) (evidence was sufficient to establish driver’s possession of stolen jewelry by exercising control over it when all occupants of car acted in concert and when jewelry was thrown from car in attempt to conceal it from police officers). Compare Commonwealth v. Brady, 385 Pa.Super. 279, 560 A.2d 802 (1989) (passenger in car that passenger did not own did not exercise dominion or control over goods located in trunk). Thus, the evidence was sufficient to sustain his conviction on the charge.

Appellant also alleges that the Commonwealth improperly was allowed to introduce as evidence of guilt appellant’s refusal to consent to the search of his car. We are constrained to agree with this contention. The record reveals that the Commonwealth made a specific motion to allow into evidence the fact that appellant refused to allow police to search his car solely to establish that he was guilty:

[DISTRICT ATTORNEY]: Judge, while we’re here, I have one evidentiary matter to raise with the Court. I did research and couldn’t find — it was a brief research, to be sure, but I didn’t find anything. The vehicle in which Mr. Tillery was a passenger in which the numerous items were found — basically it’s receiving stolen property as a result of retail theft. There were items taken from Boscov’s that the camera operator saw taken. She radioed to the security guard who got a license plate to the car. The car had already left. Bret Hopkins spotted the car out on Route 322. When the car was stopped, the car was owned by Mr. Tillery, and when the car was stopped there was some items found on the person of Kenneth Tillery who was also in the car, and the police at that point asked Albert Tillery, can we search your car? And Mr. Tiller said, Absolutely not. I am not going to allow you to search my car.
We would like to bring that into evidence. It’s not the same as a refusal to give a statement. He was asked if he would consent to a search and he refused to consent to the search, obviously, indicating he had something to hide, and we would like to bring that evidence in.

Notes of Testimony, 11/8/90, at 5-6 (emphasis added). Appellant objected strenuously to the allowance of such evidence.

The trial court allowed the evidence, which was as follows:

Q. Now. You said the car was owned by [appellant], did you ask [appellant] for permission to search the vehicle? A. Yes, I did.
Q. And what was his response when you asked for his permission to search the vehicle?
A. He refused.

Id. at 34.

Pursuant to our holding in Commonwealth v. Welch, 401 Pa.Super. 393, 585 A.2d 517 (1991), it was error to allow this to be introduced into evidence. In Welch, we held that it was error to allow into evidence testimony that the defendant refused to permit a search of her bedroom without a warrant. Applying case law which holds that invocation of a fifth amendment right to remain silent or to counsel cannot be used as incriminating evidence, a panel of this court eloquently stated the following:

In Commonwealth v. Haideman, 449 Pa. 367, 296 A.2d 765 (1972), our Supreme Court held that it was reversible error to admit evidence of an accused’s request for counsel and silence at arrest...

[Similarly], in Fowle v. United States, 410 F.2d 48 (9th Cir.1969), the Ninth Circuit Court of Appeals stated,

We simply cannot adopt an interpretation of the Fifth Amendment under which one exercising his right to remain silent upon and immediately after his arrest — a right which the Supreme Court has so earnestly sought to guarantee and preserve — is severely prejudiced by his recourse to that cherished right. It would be anomalous indeed if honorable law enforcement officers were required to elaborate upon the traditional fifth amendment warning and advise arrested persons, in effect: If you say anything it may be used against you. You have the constitutional right to remain silent, but if you exercise it, that fact may be used against you.

Although in the present case we are dealing with an assertion of a different constitutional right, the freedom from warrantless searches, we feel the same reasoning must apply to the assertion of that right.

As we read the various comments made by the courts regarding the assertion of one’s Fifth Amendment right, the overriding tone is that it is philosophically repugnant to the extension of constitutional rights that assertion of that right be somehow used against the individual asserting it. Although the cases have discussed the Fifth Amendment right we see no reason to treat one’s assertion of a Fourth Amendment right any differently. It would seem just as illogical to extend protections against unreasonable searches and seizures, including the obtaining of a warrant prior to implementing a search, and to also recognize an individual’s right to refuse a warrant-less search, yet allow testimony regarding such an assertion of that right at trial in a manner suggesting that it is indicative of one’s guilt.

Id., 401 Pa.Super. at 396-97, 585 A.2d at 518-19.

In the present case, the trial court refused to apply Welch, based on its position that appellant did not have the constitutional right to refuse to allow his car to be searched without a warrant. Even if we were to assume that appellant’s car could be searched without a warrant, the court’s refusal to apply Welch on that basis directly conflicts with the following language in that opinion:

The point of significance is that one should not be penalized for asserting a constitutional right. It is the assertion of a right that we must focus on. We believe that the assertion of a right cannot be used to infer the presence of a guilty conscience. Thus, the actual entitlement to the right could be thought of as irrelevant to the point we are discussing. We would think that the same reasoning would apply even if the individual asserting the right had a mistaken belief that they were protected by a constitutional provision or were extended a right or protection when, in fact, they were not. The integrity of a constitutional protection simply cannot be preserved if the invocation or assertion of the right can be used as evidence suggesting guilt.

Id., 401 Pa.Super. at 398, 585 A.2d at 520 (first emphasis in original, second emphasis added). Invocation of a constitutional right should not under any circumstances be used as evidence of guilt as it erases the very guarantees our constitution is designed to protect.

In accordance with the foregoing, the judgment of sentence is reversed and the case is remanded. Jurisdiction is relinquished.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    611 A.2d 1250
    John Giovanni BALSAMO, Appellant, v. Joseph F. MAZURKIEWICZ, Superintendent, State Correctional Institution at Rockview.
    Superior Court of Pennsylvania.
    Argued April 8, 1992.
    Filed June 30, 1992.

      Andrew Shubin, State College, for appellant.

      Before OLSZEWSKI, BECK and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the April 17, 1991 order denying appellant John Giovanni Balsamo’s petition for writ of habeas corpus. Appellant presents the following issues for our review:

1. Whether the Court’s dismissal of Mr. Balsamo’s Petition for a Writ of Habeas Corpus without a show cause hearing constitutes an abuse of discretion?
2. Whether the Court’s findings of fact with respect to the availability of counsel to Mr. Balsamo are supported by adequate evidence in the record?
3. Whether the Court’s legal conclusion that the provision of counsel by the State in certain instances obviates the need for legal assistance within the institution’s law library was in error?

Appellant’s Brief at 3. For the reasons that follow, we reverse and remand for an evidentiary hearing to determine whether appellant has adequate access to the courts either through counsel or through assistance with the use of the prison law library.

Appellant, an inmate incarcerated at State Correctional Institution at Rockview (SCIR), filed a petition for writ of habeas corpus on April 11,1991. The petition was prepared by Keystone Legal Services on behalf of appellant. Appellant’s petition was denied without hearing by order of the Court of Common Pleas of Centre County on April 17,1991. This timely appeal followed.

Appellant is of Italian descent and is currently serving eighteen (18) to forty (40) years in SCIR. Mr. Balsamo is unable to read or write in English. In his petition, appellant avers the following:

7. Petitioner is functionally illiterate in the English language and speaks only broken English. He is neither able to read nor write the English language at a level which would enable him to gain access to the courts at even the most minimally meaningful level.
10. Petitioner has no knowledge or training in the law.
11. Petitioner wishes to avail himself of meaningful access to the courts so he will be able, inter alia, to appeal his sentence and conviction, file and prosecute a writ of habeas corpus challenging the legality of his sentence, file a Post-conviction Relief Act petition, file a civil rights action challenging the conditions of his confinement, and to defend himself at prison misconduct hearings and appeals.
12. Petitioner cannot have meaningful access to the courts without having the assistance of counsel.
13. Petitioner does not have sufficient income to hire an attorney.
14. Respondent is charged by law with the responsibility of providing plaintiff with meaningful access to the courts.
15. Respondent has implemented a law library paging system at SCIR, which requires inmates to request specific books for their use from the library. Inmates are not allowed to browse through the various legal materials contained in the library.
16. Respondent has at all times pertinent to this action been capable of providing plaintiff with meaningful access to the courts.
17. Respondent has failed and refused to provide or make available to petitioner, person(s) trained in the law who can assist petitioner.
18. Respondent has established through, practice, procedure and regulation, a policy which specifically prohibits any library worker at SCIR, whether departmental staff or inmate staff, from assisting inmates, including petitioner, with any of their legal work while inmates are in the library and the library workers are on duty.
19. Respondent has established a policy, practice and procedure of specifically prohibiting any departmental staff or employee at SCIR from providing any help whatsoever to inmates including petitioner, with their legal work.
20. Respondent has established a policy which prohibits inmates from bartering for the services of a “jailhouse lawyer.”
21. Because of petitioner’s illiteracy, he is unable to use the law library in a meaningful way.
22. Because of respondent’s policies, there are no person^) trained in the law and available to assist inmates at SCIR.
23. Petitioner has no other adequate remedies available. Although the Department of Corrections has established a Consolidated Inmate Grievance Review System, DC-ADM 804, the regulation mandates that all appeals shall be in writing. Since petitioner is functionally illiterate, he does not have the ability to comply with the regulation. The regulation makes no provision for illiterate inmates.
24. Petitioner has orally requested legal assistance, speaking with both the school principal and his counsellor at institution. His requests for help have been denied.
25. In addition to the fact that plaintiff simply cannot comply with departmental regulations concerning written appeals, such an appeal would, in all probability, be futile, since petitioner is not complaining that institution personnel have violated the policy regarding the law library, but rather, is complaining that the policy itself is unconstitutional as it is applied to him.

Petition for Writ of Habeas Corpus dated March 29, 1991.

The Judicial Code, 42 Pa.C.S.A. § 101 et seq., provides that “[a]ny judge of a court of record may issue the writ of habeas corpus to inquire into the cause of detention of any person or for any other lawful purpose.” Id. § 6502(a). The petition for habeas corpus must specifically aver facts which, if true, would entitle the relator to an award of a writ of habeas corpus and a hearing thereon. Com. ex rel. Alexander v. Banmiller, 184 Pa.Super. 554, 136 A.2d 489 (1957); Com. ex rel. Paylor v. Johnston, 180 Pa.Super. 228, 119 A.2d 562 (1956), cert. denied, 351 U.S. 969, 76 S.Ct. 1035, 100 L.Ed. 1488 (1956).

Moreover, it is a general rule that the petition may be denied summarily and without a hearing where it fails to allege facts making out a prima facie case for the issuance of the writ. Commonwealth ex rel. Whalen v. Banmiller, 193 Pa.Super. 554, 165 A.2d 421 (1960), cert. denied, 368 U.S. 882, 82 S.Ct. 133, 7 L.Ed.2d 82 (1961); Commonwealth ex rel Lockhart v. Myers, 193 Pa.Super. 531, 165 A.2d 400 (1960), cert. denied, 368 U.S. 860, 82 S.Ct. 102, 7 L.Ed.2d 57 (1961) . On appeal from the dismissal of a petition for habeas corpus without hearing, if the allegations of the petition are such that a hearing should have been held to allow the petitioner to support his allegations by evidence, the appellate court may remand the case for such a hearing. Commonwealth ex rel. West v. Myers, 423 Pa. 1, 222 A.2d 918 (1966); Commonwealth ex rel. Novak v. Banmiller, 399 Pa. 496, 161 A.2d 9 (1960).

We will address appellant’s first and second contentions together. Appellant argues that the trial court abused its discretion in dismissing his petition without first conducting a hearing. Applying the above law, we must first determine whether appellant’s petition established a prima facie case entitling him to relief. We find that it does.

We note that there is little case law on point in this jurisdiction. As a result, we must look to federal case law, noting that much of the federal cases pertaining to denial of access to courts have arisen under 42 U.S.C.A. § 1983.

In Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977), the United States Supreme Court held that “the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” The United States Constitution guarantees prisoners assistance in filing appeals, and this assistance may take the form of either an adequate law library or legal counsel. Peterkin v. Jeffes, 855 F.2d 1021, 1043 (3rd Cir.1988). Furthermore, correctional institutions are to provide prisoners with assistance in forming their pro se appeals. Morello v. James, 810 F.2d 344, 347 (2nd Cir.1987).

The trial court acknowledged that prisoners may not be denied access to the courts. The court nevertheless determined that although appellant was functionally illiterate in the English language, he had received sufficient legal assistance to satisfy the required access to the courts. In particular, the court stated that “[although John Balsamo was uneducated and illiterate in the English language, each step in his appeal process was completed by legal counsel provided by the state. The provided counsel helped the Petitioner file an appeal of writ of habeas corpus.” Opinion, July 12, 1991, at 3. Thus, the court concluded that the above assistance “obviates any need for legal guidance in the prison library.” Id. at 3-4. By so doing, the court determined that appellant had not established a prima facie case entitling him to a hearing. We find this determination to be erroneous.

First, as appellant argues in his second issue, the court’s assertion that appellant had access to an attorney is not supported by the record. The record before us consists solely of appellant’s petition for habeas corpus and the lower court’s opinion denying that petition. Appellant alleges in his petition that he does not have an attorney for the purposes of his direct appeal. Because there was no hearing, and thus no factual findings, we cannot ascertain whether counsel indeed has been appointed. The fact that Keystone Legal Services is representing appellant for the present proceedings is not dispositive of whether appellant was represented by counsel in his direct appeal. Moreover, based on the record before us, we are unable to even determine whether an appeal has been filed or is pending.

Second, assuming appellant does not have access to an attorney, his petition does make out a prima facie case for habeas corpus relief. As we noted above, the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law. Bounds, supra; Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971). However,

[c]ourts have consistently held that the mere provision of an adequate law library does not necessarily satisfy the constitutional obligation set forth in Bounds. An adequate law library, by itself, cannot provide meaningful access to the courts for those inmates unable to read and understand library materials____

United States ex rel. Para-Professional Law Clinic v. Kane, 656 F.Supp. 1099 (E.D.Pa.1987) (citations omitted), affd 835 F.2d 285 (3rd Cir.1987), cert. denied, 485 U.S. 993, 108 S.Ct. 1302, 99 L.Ed.2d 511 (1988).

“The central question in evaluating whether a law library adequately provides meaningful access to the courts is whether the facility will enable the prisoners to fairly present their complaints to a district court. It is not enough simply to say the books are there, when the plaintiffs contend that they do not have the assistance necessary to use the books properly.” Cruz v. Hauck, 627 F.2d 710, 720 (5th Cir.1980). The appellee bears the burden of proving that the prison law library, as presently operated, provides appellant meaningful access to the courts. See Cody v. Hillard, 599 F.Supp. 1025, 1060 (D.S.D.1984) (citing Ruiz v. Estelle, 679 F.2d 1115, 1154, n. 197; Storseth v. Spellman, 654 F.2d 1349, 1352 (9th Cir.1981)), cert. denied, 485 U.S. 906, 108 S.Ct. 1078, 99 L.Ed.2d 237 (1988).

For example, in Cruz, supra, a case involving a challenge to a prison library, the court noted that all inmates of the jail had to have adequate access to the courts. Cruz, supra, 627 F.2d at 719. The plaintiffs argued that “even if the library were adequate, there are inmates who must still rely on the assistance of persons trained in the law for access to the courts because these inmates lack the educational and linguistic skills essential to using the library facilities.” Id. at 721. The court agreed, noting that “[library books, even if ‘adequate’ in number, cannot provide access to the courts for those persons who do not speak English or who are illiterate.” Id. Similarly, in United States ex rel. Para-Professional Law Clinic v. Kane, supra, the district court for the Eastern District of Pennsylvania, enjoined the closing of the prison legal clinic reasoning that otherwise functionally illiterate prisoners would be denied their fundamental right of access to the courts, in violation of 42 U.S.C.A. § 1983.

We do not comment on the likelihood of success of appellant’s petition, but merely state that he should be given an opportunity to present evidence in support of his allegations. On remand, the trial court is instructed to determine whether appellant had access to an attorney for the purposes of challenging his conviction and sentence in addition to any collateral challenges he seeks to raise. In addition, the court should inquire into appellant’s contention that he lacks the educational skills essential to adequately use the prison library facilities so as to preclude appellant’s access to the courts in the future.

In light of our resolution of appellant’s first two contentions, we do not reach the issue of whether counsel in certain circumstances obviates the need for legal assistance with the institution’s law library. However, we note that the provision of counsel by the State in certain matters does not address the potential of appéllant’s being barred from the courts in situations where counsel is not provided.

Accordingly, for the aforementioned reasons, we reverse and remand.

Reversed and remanded. Jurisdiction relinquished.

      . We note that the appellee, Joseph Mazurkiewicz, Superintendent of the State Correctional Institute at Rockview, appeared for oral arguments but did not file a brief in this matter.

        . A similar issue was raised in Commonwealth v. Smith, 336 Pa.Super. 636, 486 A.2d 445 (1984), in which the petitioner appealed the denial of his habeas corpus petition alleging lack of access to an accurate law library. However, his appeal was dismissed as moot because he was no longer in custody and the case did not fall within the category of exceptional cases capable of repetition yet evading judicial review.

      . In Cruz, the court reviewed the denial of class certification in an action brought under 42 U.S.C.A. § 1983.


author: MONTEMURO, Judge: WIEAND, Judge,

text:
    611 A.2d 1255
    Lillian P. GOLL, Administratrix of the Estate of Harriet H. Boyles, Deceased, Lilly A. Stancliff, Administratrix of the Estate of Eileen J. White, Deceased, Audrey Gardone, Administratrix of the Estate of Melinda L. Gardone, Deceased, and Holly A. Gardone, Deceased, Kathy S. Munro, Administratrix of the Estate of Randy A. White, Deceased and all Others Similarly Situated v. INSURANCE COMPANY OF NORTH AMERICA. Appeal of Kathy S. MUNRO, Administratrix of the Estate of Randy A. White, Deceased. Lillian P. GOLL, Administratrix of the Estate of Harriet H. Boyles, Deceased, Lilly A. Stancliff, Administratrix of the Estate of Eileen J. White, Deceased, Audrey Gardone, Administratrix of the Estate of Melinda L. Gardone, Deceased, and Holly A. Gardone, Deceased, Kathy S. Munro, Administratrix of the Estate of Randy A. White, Deceased and all Others Similarly Situated v. INSURANCE COMPANY OF NORTH AMERICA. Appeal of Lillian P. GOLL, Administratrix of the Estate of Harriet H. Boyles, Deceased. Lillian P. GOLL, Administratrix of the Estate of Harriet H. Boyles, Deceased, Lilly A. Stancliff, Administratrix of the Estate of Eileen J. White, Deceased, Audrey Gardone, Administratrix of the Estate of Melinda L. Gardone, Deceased, and Holly A. Gardone, Deceased, Kathy S. Munro, Administratrix of the Estate of Randy A. White, Deceased and All Others Similarly Situated v. INSURANCE COMPANY OF NORTH AMERICA. Appeal of Lilly A. STANCLIFF, Administratrix of the Estate of Eileen J. White, Deceased. Lillian P. GOLL, Administratrix of the Estate of Harriet H. Boyles, Deceased, Lilly A. Stancliff, Administratrix of the Estate of Eileen J. White, Deceased, Audrey Gardone, Administratrix of the Estate of Melinda L. Gardone, Deceased, and Holly A. Gardone, Deceased, Kathy S. Munro, Administratrix of the Estate of Randy A. White, Deceased and All Others Similarly Situated v. INSURANCE COMPANY OF NORTH AMERICA. Appeal of Rita GEIGER, Administratrix of the Estate of Jerome Geiger, Deceased. Lillian P. GOLL, Administratrix of the Estate of Harriet H. Boyles, Deceased, Lilly A. Stancliff, Administratrix of the Estate of Eileen J. White, Deceased, Audrey Gardone, Administratrix of the Estate of Melinda L. Gardone, Deceased, and Holly A. Gardone, Deceased, Kathy S. Munro, Administratrix of the Estate of Randy A. White, Deceased and all Others Similarly Situated v. INSURANCE COMPANY OF NORTH AMERICA. Appeal of Michael J. MARINO, Administrator of the Estate of Michael Marino, Deceased and Margaret Marino, Deceased. Lillian P. GOLL, Administratrix of the Estate of Harriet H. Boyles, Deceased, Lilly A. Stancliff, Administratrix of the Estate of Eileen J. White, Deceased, Audrey Gardone, Administratrix of the Estate of Melinda L. Gardone, Deceased, and Holly A. Gardone, Deceased, Kathy S. Munro, Administratrix of the Estate of Randy A. White, Deceased and all Others Similarly Situated v. INSURANCE COMPANY OF NORTH AMERICA. Appeal of Audrey GARDONE, Administratrix of the Estate of Melinda L. Gardone, Deceased. Lillian P. GOLL, Administratrix of the Estate of Harriet H. Boyles, Deceased, Lilly A. Stancliff, Administratrix of the Estate of Eileen J. White, Deceased, Audrey Gardone, Administratrix of the Estate of Melinda L. Gardone, Deceased, and Holly A. Gardone, Deceased, Kathy S. Munro, Administratrix of the Estate of Randy A. White, Deceased and all Others Similarly Situated v. INSURANCE COMPANY OF NORTH AMERICA. Appeal of Joanne WELLS, Administratrix of the Estate of Richard Wells, Deceased. Lillian P. GOLL, Administratrix of the Estate of Harriet H. Boyles, Deceased, Lilly A. Stancliff, Administratrix of the Estate of Eileen J. White, Deceased, Audrey Gardone, Administratrix of the Estate of Melinda L. Gardone, Deceased, and Holly A. Gardone, Deceased, Kathy S. Munro, Administratrix of the Estate of Randy A. White, Deceased and all Others Similarly Situated v. INSURANCE COMPANY OF NORTH AMERICA, Rita Geiger, Administratrix of the Estate of Jerome T. Geiger, Deceased, Intervenor. Lillian P. GOLL, Administratrix of the Estate of Harriet H. Boyles, Deceased, Lilly A. Stancliff, Administratrix of the Estate of Eileen J. White, Deceased, Audrey Gardone, Administratrix of the Estate of Melinda L. Gardone, Deceased, and Holly A. Gardone, Deceased, Kathy S. Munro, Administratrix of the Estate of Randy A. White, Deceased and all Others Similarly Situated v. INSURANCE COMPANY OF NORTH AMERICA, Michael J. Marino, Administrator of the Estate of Michael Marino and Margaret Marino, Deceased, Intervenor. Lillian P. GOLL, Administratrix of the Estate of Harriet H. Boyles, Deceased, Lilly A. Stancliff, Administratrix of the Estate of Eileen J. White, Deceased, Audrey Gardone, Administratrix of the Estate of Melinda L. Gardone, Deceased, and Holly A. Gardone, Deceased, Kathy S. Munro, Administratrix of the Estate of Randy A. White, Deceased and all Others Similarly Situated v. INSURANCE COMPANY OF NORTH AMERICA, Joanne F. Wells, Administratrix of the Estate of Richard S. Wells, Deceased, Intervenor.
    Superior Court of Pennsylvania.
    Argued Oct. 23, 1991.
    Filed June 30, 1992.
    Reargument Denied Sept. 11, 1992.

      Pamela G. Shuman, Harrisburg, for appellants (in Nos. 14, 15, 16, 17, 18, 19 and 20), and for intervenors (in Nos. 52, 53 and 54).
    Carl A. Solano, Philadelphia, for appellant (in Nos. 52, 53 and 54), and for appellee (in Nos. 14, 15, 16, 17, 18, 19 and 20).
    Before WIEAND, MONTEMURO and KELLY, JJ.
   MONTEMURO, Judge:

This consolidated appeal lies from an Order granting the motion for summary judgment of appellee, Insurance Company of North America (INA). Appellants, all representatives of the estates of individuals killed in motor vehicle accidents, brought this class action suit on behalf of themselves and others seeking to recover work loss benefits under the now repealed No-fault Motor Vehicle Insurance Act (No-fault Act), 40 P.S. §§ 1009.101-.701 (repealed 1984). The trial court found their action to be barred by the applicable statute of limitations and granted appellee’s motion for summary judgement.

On appeal, appellants advance several theories in support of their contention that the instant action is not time barred. These theories are as follows: (1) the limitation period was suspended by the pendency of an earlier class action suit; and, (2) the statute of limitations was tolled by appellee’s breach of its fiduciary duty to advise claimants of the scope of available benefits. Upon review of these issues, we vacate the trial court’s order in part, affirm in part, and remand for further action consistent with this opinion.

The standard to be applied in reviewing a grant of summary judgment has recently been reiterated by our supreme court in Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991). Specifically,

[sjummary judgment is properly granted where ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ Pa.R.C.P. 1035(b). An entry of summary judgment may be granted only in cases where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co., 522 Pa. 367, 369, 562 A.2d 279, 280 (1989). The moving party has the burden of proving the nonexistence of any genuine issue of material fact. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 202-204, 412 A.2d 466, 468-69 (1979). The record must be viewed in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Davis v. Pennzoil Co., 438 Pa. 194, 264 A.2d 597 (1970).

Id., 527 Pa. at 134-35, 589 A.2d 205, 206. Instantly, appellants argue that the grant of summary judgement is contrary to our supreme court’s decision in Dercoli v. Pennsylvania Nat’l. Mut. Ins. Co., 520 Pa. 471, 554 A.2d 906 (1989), and this court’s recent decision in Miller v. Keystone Ins. Co., 402 Pa.Super. 213, 586 A.2d 936 (1991), appeal granted, 528 Pa. 631, 598 A.2d 284 (1991).

Dercoli arose from an automobile accident where the husband/insured fell asleep at the wheel and crashed into a tractor-trailer. As a result of the accident, the husband perished and his wife suffered severe injuries. Mrs. Dercoli filed a claim with her husband’s insurers relying solely on the insurers’ agents to recover the benefits due to her under the policies. While receiving these benefits, our supreme court abolished the defense of interspousal immunity which had prevented Mrs. Dercoli from recovering for the personal injuries negligently inflicted by her husband. Some four years later, Mrs. Dercoli learned that this bar to recovery had been lifted and she brought suit against her husband’s insurers alleging that they had breached their duty of good faith and fair dealing by failing to advise her of this change in the law. Our supreme court agreed holding that when an insurer “undertakes to advise and counsel the insured in the insured’s claim for benefits, [the duty of the insurance company to deal with its insureds fairly and in good faith requires the insurer] to inform the insured of all benefits and coverage that may be available and of any potential adverse interest pertaining to the insurer’s liability under the applicable policy.” Dercoli, 520 Pa. at 478, 554 A.2d at 909.

In Miller, supra, which was handed down after the trial court had disposed of the instant case, the appellant brought suit to recover postmortem work loss benefits for the estate of her deceased son. The insurance company moved for summary judgement contending that the suit was barred by the limitations on actions set forth in the No-fault Act. The trial court agreed and granted the insurer’s motion.

On appeal, Mrs. Miller argued that the insurer had breached the duty of good faith and fair dealing enunciated in Dercoli, thereby tolling the statute of limitations. A panel of this court agreed finding that by breaching this duty, the insurer’s actions had tolled the limitations periods set forth in section 1009.106(c)(1) of the No-fault Act.

In reaching this decision, our court analyzed Dercoli and found that an insurer’s actions will toll the relevant statute of limitations when the following three factors coalesce: 1) the insurer assumes responsibility for processing its insureds’ claims; 2) the insurer knows that the insured is relying exclusively on its advice and counsel; and, 3) the insurer knows that its insured has a potential claim for additional benefits. Miller, 402 Pa.Super. at 223, 586 A.2d at 941. Each prong is a question of fact for resolution by the trier of fact. Id., 402 Pa.Superior Ct. at 224-26, 586 A.2d at 941-42.

The Miller court found that the first of these prongs, along with the duty of good faith and fair dealing, to be implicit in the provisions of the No-fault Act, an argument adopted by the appellants herein. As to the second requirement, the court in Miller found it critical that the claimant be without legal representation, as is true of all save one of the named appellants in the instant case. And finally, the third prong is satisfied when, during the pendency of a claim, the insurer either knows that its insured is entitled to additional benefits or is aware that its insured could be entitled to additional benefits. See also Arnold v. Logue, 405 Pa.Super. 422, 426-27, 592 A.2d 735, 736 (1991) (claim must be cognizable under the law at the time that it is made).

When the Dercoli/Miller three-prong test is applied to the facts of the instant case, the provisions of the No-fault Act impose a responsibility on INA to pay to its claimants all benefits they are entitled to receive under the act. Miller, 402 Pa.Super. at 224-25, 586 A.2d at 941-42. As to the second prong, the record shows that all appellants, except the Estate of Michael and Margaret Marino, were unrepresented by counsel when they made their claims for No-fault benefits. Accordingly, the second prong of the test is satisfied as to all appellants except the Marino Estate. Therefore, the only question remaining is when INA knew that appellants had a potential claim for work loss benefits.

Appellants argue that INA was aware of the potential for recovery of such benefits when our supreme court decided the companion cases of Allstate Ins. Co. v. Heffner and Pontius v. United States Fidelity and Guar. Co., 491 Pa. 447, 421 A.2d 629 (1980) and therefore was obligated to inform their claimants of the ongoing litigation concerning an estate’s right to recover postmortem work loss benefits. Appellee disagrees arguing that until this court resolved the issue of an estate’s entitlement to such benefits in Freeze v. Donegal Mut. Ins. Co., 301 Pa.Super. 344, 447 A.2d 999 (1982), aff'd, 504 Pa. 218, 470 A.2d 958 (1983), it did not have an obligation to inform its claimants that the possibility existed that they could become entitled to work loss benefits. Appellee’s argument cannot prevail in light of the Dercoli and Miller decisions.

In Dercoli, our supreme court stated that when an insurer assumes the responsibility of advising its insured in recovery of benefits, “the insurer has a duty to inform the insured of all benefits and coverage that may be available and of any adverse interest pertaining to the insurer’s liability under the applicable policy.” Id., 520 Pa. at 478, 554 A.2d at 909 (emphasis added). Thus, it is apparent that INA had a duty to inform its insureds not only of the benefits available to them, but also of any appellate litigation, that it was aware of, which could impose additional liability on INA.

Although appellee acknowledges the import of our decision in Miller, it nevertheless asserts that Miller is inapposite to the instant appeal because there the issue was whether an insurer’s breach of the duty owed to its insureds tolled the statute of limitations, whereas the issue here is whether breach of the same duty can toll a statute of repose. INA argues that a statute of repose cannot be tolled for any reason; thus, appellants’ claims have been lost forever.

Section 1009.106(c)(1) provides that:

[when] no-fault benefits have not been paid for loss arising otherwise than from death, an action therefor may be commenced not later than two years after the victim knows, or in the existence of reasonable diligence should have known, that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier. If no-fault benefits have been paid for loss arising otherwise than from death, an action for further benefits, other than survivor’s benefits, by either the same or another claimant; may be commenced not later than two years after the last payment of benefits.

This provision is both a statute of limitations and a statute of repose. A claimant is provided with a two year period to initiate an action which begins to run from the time that the claimant knew or should have known that a loss was incurred. This is a statute of limitations.

Section 1009.106(c)(1) then goes on to provide that in any event, an action must be instituted not later than four years after the accident. This portion is a statute of repose, Zubris v. Pa. Assigned Claims Plan, 321 Pa.Super. 83, 87, 467 A.2d 1139, 1141 (1983); Bond v. Gallen, 292 Pa.Super. 207, 215, 437 A.2d 7, 11 (1981), intended to extinguish an insurer’s liability to its insureds, see Catanzaro v. Wasco Products, Inc., 339 Pa.Super. 481, 489 A.2d 262 (1985) (statute of repose contained in 42 Pa.C.S.A. § 5536 abolishes any cause of action not brought within the mandated period); Fetterhoff v. Fetterhoff, 354 Pa.Super. 438, 512 A.2d 30 (1986), alloc. denied, 514 Pa. 624, 522 A.2d 50 (1987) (with a statute of repose, liability is extinguished upon passage of the statutory period). This “ ‘impose[s] on some plaintiffs the hardship of having a claim extinguished before it even exists----’” Luzadder v. Despatch Oven Co., 834 F.2d 355, 358 (3d Cir.1987), cert. denied, 485 U.S. 1035, 108 S.Ct. 1595, 99 L.Ed.2d 909 (1988) (quoting W. Keeton, Prosser and Keeton on Torts § 30, p. 168 (5th Edition 1984)).

The issue then becomes whether Pennsylvania law provides for the tolling of a statute of repose. Although our research of Pennsylvania law has failed to uncover a definitive answer to this question, we have found case law from other jurisdictions helpful in resolving this issue.

In Lasoya v. Sunay, 193 Ga.App. 814, 389 S.E.2d 339 (1989), the plaintiff brought a medical malpractice claim alleging that she had been rendered sterile because the defendant had negligently performed a biopsy on her left fallopian tube. The defendant moved for summary judgement contending that the plaintiff’s action was barred by the applicable statute of limitations. The motion was granted and the plaintiff took an appeal to the Georgia Court of Appeals.

On appeal, the plaintiff argued that although she had failed to file an action until six years after her surgery, her failure to bring suit was due to the defendant’s misrepresentation as to the cause of her sterility. Before addressing the merits of the plaintiff’s claim, the Georgia Court of Appeals noted that although the plaintiff’s action was preeluded by the five year statute of repose, a statute of repose does not relieve a defendant from liability when the defendant has concealed the injuries from the plaintiff. The Lasoya court then affirmed the grant of summary judgement finding that there was nothing in the record to indicate that the defendant had fraudulently misrepresented the cause of the plaintiffs sterility.

A different result was reached by the Ohio Supreme Court in Shover v. Cordis Corp., 61 Ohio St.3d 213, 574 N.E.2d 457 (1991), reh’g denied, 62 Ohio St.3d 1410, 577 N.E.2d 362 (1991). Shover involved a case where an individual died a year after receiving a pacemaker manufactured by the defendant. Four years later, the decedent’s son read a newspaper article concerning a recall of pacemakers manufactured by the defendant and the defendant’s plea of guilty to charges that it had concealed defects in its pacemakers. Suspecting there was a connection between his mother’s death and the defective pacemakers, the plaintiff retained counsel and brought suit against the Cordis Corporation.

Cordis moved to dismiss the claim asserting that the plaintiff’s wrongful death claim was barred by the two year statute of limitations. The trial court agreed and the action was dismissed. The plaintiff appealed the dismissal arguing that fraud will toll the applicable statute of limitations. The Ohio Supreme Court disagreed holding that the legislature intended for wrongful death actions to be brought within two years of death regardless of when the cause of death was discovered. Therefore, the limitations period could not be tolled because of the defendant’s fraud. However, the Shover court did note that although the plaintiff’s wrongful death claim was time barred, he could bring an action for common law fraud because the limítations period for this cause of action does not begin to run until discovery of the fraud.

Although we find the Shover decision to be sound, we decline to adopt its reasoning. We do not believe that an insurer should be able to avoid its obligation to its insureds by resorting to fraudulent conduct. Accordingly, we hold that an insurers breach of its duty of good faith and fair dealing will toll the limitations periods set out at section 1009.106(c) of the No-fault Act. Therefore, we vacate that portion of the trial court’s opinion which grants summary judgement against appellants Goll, Stancliff, Gar-done, Munro, Geiger, and Wells. Now, the only question that remains is whether there is an alternate theory which will toll the limitations period applicable to the claim of the Marino Estate.

Appellants argue that the filing of Cunningham, a class action suit seeking postmortem work loss benefits brought by the parents of a woman killed in an automobile accident, served to toll the statute of limitations as to themselves. However, the timeliness of Cunningham itself depended upon a prior case, Nye v. Erie Ins. Exch., 504 Pa. 3, 470 A.2d 98 (1983). The appellants contend that the statute of limitations has been tolled as to them under the normal rule that “upon the filing of a class action, the statute of limitations is normally tolled for all putative members in the class.” Cunningham, 515 Pa. at 489, 530 A.2d at 408. However, in Nye no representative of the class with standing to sue had been found, and the case was dismissed. The Cunninghams therefore had no valid pending action upon which to base the tolling of the statute; the tolling effect was negated, and the Cunninghams’ action was itself time barred. The trial court herein found that because the Cunninghams’ suit was out of time, their case offered no relief from the effects of the statute herein.

Appellants argue that because the facts of Cunningham are very narrow, it fails to provide support for the position taken by the trial court. They contend that “the Supreme court held in Cunningham that the only circumstance under which a class action lawsuit does not toll the statute of limitations from the time of its filing is where the representative lacks standing to sue and where such lack is clear in the pleadings.” (Appellant’s Brief at 49). The corollary to this theorem is that since the Cunninghams themselves did not lack standing, their case, regardless of outcome, tolled the statute as to appellants. We do not agree.

A class action is defined as “any action brought by or against parties as representatives of a class until the court by order refuses to certify it as such or revokes a prior certification under these rules.” Pa.R.C.P. 1701(a). As the explanatory comment points out, this definition is important in determining whether the commencement of a class action tolls the statute of limitations as to putative members of the class. This definition carries into effect the decision of the United States Supreme Court in American Pipe and Const. Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), reh’g denied, 415 U.S. 952, 94 S.Ct. 1477, 39 L.Ed.2d 568 (1974), which held that commencement of a class action suspends the applicable statute of limitations during the interim period beginning at the commencement of the action and ending upon a court’s refusal to certify the class.

It is important to note that in American Pipe, the Supreme Court held that “the filing of a timely class action complaint commences that action for all members of the class as subsequently defined.” Id. at 550, 94 S.Ct. at 764 (emphasis added). It is therefore apparent that the filing of an untimely class action does not commence the action for the yet to be identified members of the class. Accordingly, we affirm the decision of the trial court which held that the filing of an untimely complaint does not suspend the statute of limitations for the unidentified class members. Thus, the claim of the Marino Estate is time barred under section 1009.106(c)(1) of the No-fault Act.

In summary, the grant of summary judgement is vacated as to appellants Goll, Stancliff, Gardone, Munro, Geiger, and Wells. The order is affirmed as to appellant Marino. Case remanded for action consistent with this decision. Jurisdiction relinquished.

WIEAND, J., files a concurring and dissenting opinion.

WIEAND, Judge,

concurring and dissenting.

I respectfully dissent from the majority’s decision to reverse in part the summary judgments entered by the trial court. All claims made in the instant action were barred by the applicable statute of limitations. Therefore, I would affirm in toto the well reasoned decision of the trial court to enter summary judgment in favor of the defendant insurer. The statute of limitations is not tolled merely because one who makes a claim against an insurance company is unrepresented by counsel.

The majority has correctly recited the standard to be applied by an appellate court when reviewing the grant of summary judgment by a trial court. In determining whether the trial court erred in granting a motion for summary judgment, a reviewing court must determine whether the “pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law." Pa.R.C.P. 1035(b) (emphasis added). See: Thompson v. Nason Hospital, 527 Pa. 330, 333, 591 A.2d 703, 704 (1991); Marks v. Tasman, 527 Pa. 132, 134, 589 A.2d 205, 206 (1991); Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 174-175, 507 A.2d 323, 331 (1986); Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140-141, 476 A.2d 928, 930-931 (1984); Rybas v. Wapner, 311 Pa.Super. 50, 54, 457 A.2d 108, 109 (1983). The granting of a summary judgment, therefore, is reviewable for error of law.

Unfortunately, several Superior Court decisions have used language suggesting that a trial court’s grant of a motion for summary judgment will not be reversed in the absence of an abuse of discretion. This implies that the granting of a motion for summary judgment, is discretionary with the trial court. This is simply wrong. Whether to grant a motion for summary judgment is, purely and simply, an issue of law and reviewable as such.

The trial court in the instant case did not commit an error of law when it entered summary judgment in favor of INA, and because there was no error of law, I would affirm that decision. There was no error because, as a matter of law, all actions for work loss benefits were barred by the statute of limitations. See: Cunningham v. Insurance Company of North America, 515 Pa. 486, 530 A.2d 407 (1987); Gabovitz v. State Automobile Insurance Association, 362 Pa.Super. 17, 523 A.2d 403 (1987).

In Cunningham, the Supreme Court held that the statute of limitations had not been tolled by a prior class action which had been palpably non-justiciable because the class representative plaintiff lacked standing to maintain the action. In dismissing the action, the Court said:

Id., 515 Pa. at 491, 530 A.2d at 409.

In this case, appellants argue that the statute of limitations was tolled as to them by the prior action brought against Insurance Company of North America (INA) in Cunningham v. Insurance Company of North America, supra. However, the Cunningham action was non-justiciable because it was untimely and, therefore, barred by the statute of limitations. As such, it was not effective to toll the statute of limitations. Appellants’ argument, as the Supreme Court observed in Cunningham v. Insurance Company of North America, supra, 515 Pa. at 494, 530 A.2d at 411, “rests upon the faulty premise that the legislature, in enacting statutes of limitations, intended merely to assure that defendants would be given notice, within a given time frame, that there are individuals who might, if they were aware of their rights and desirous of pursuing them, bring actions against such defendants____ As stated in Crown, Cork & Seal Co., 462 U.S. [345], 352, 103 S.Ct. [2392], 2397, 76 L.Ed.2d [628], 635 [1983], ‘[limitations periods are intended to put defendants on notice of adverse claims and to prevent plaintiffs from sleeping on their rights____’” (emphasis in original).

I cannot help but observe, as did the Supreme Court in Cunningham, that counsel for the appellants in this case is the same counsel who filed the class actions in Nye and in Cunningham. In the Nye complaint,

there appears an admission that counsel’s purpose in bringing suit against thirty-one insurance companies even though he represented an insured of only one of them was that he sought to toll the statute of limitations for all carriers, inasmuch as counsel believed that many potential plaintiffs would not otherwise act upon their rights. We regard such an action as a clear abuse of the goals of class action procedures. The procedures do not exist to sanction what would be regarded by many as a course of officious intermeddling on the part of counsel, who, motivated by concern for plaintiffs who would not otherwise file suits, has embarked on a course of initiating litigation on behalf of those who have slept on their rights. Indeed, this case presents a most compelling example of tactics employed to subvert the legislative intent embodied in the statute of limitations, and the rules governing tolling will not be extended to give effect to such tactics.

Cunningham v. Insurance Company of North America, supra, 515 Pa. at 493-494, 530 A.2d at 410. The same reasoning is applicable to the instant attempt to use the untimely Cunningham action as a tolling device. I am satisfied, therefore, that the statute of limitations was not tolled by the untimely class action instituted by Cunningham.

I am also satisfied that the statute of limitations was not tolled by INA’s failure to advise its insureds before the Supreme Court decision in Allstate Insurance Co. v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980) and/or the Superior Court decision in Freeze v. Donegal Mutual Insurance Co., 301 Pa.Super. 344, 447 A.2d 999 (1982), aff'd, 504 Pa. 218, 470 A.2d 958 (1983), that they might have claims for work loss benefits. Indeed, that was precisely the holding of the Superior Court in Gabovitz v. State Automobile Insurance Association, supra. There, the same counsel who represents the present appellants argued that the defendant-insurer was estopped to assert the defense of the statute of limitations because it had failed to alert its insureds that they might have a claim for work loss benefits. The Superior Court rejected this argument, saying:

“ ‘[I]n the absence of expressly proved fraud, there can be no estoppel based on the acts or conduct of the party sought to be estopped, where they are as consistent with, honest purpose and with absence of negligence as with their opposites.’ ” In re Tallarico’s Estate, 425 Pa. 280, 288, 228 A.2d 736, 741 (1967), quoting Northwestern National Bank v. Commonwealth, 345 Pa. 192, 196, 27 A.2d 20, 23 (1942). Thus, “[a] mutual mistake as to the law, knowledge of which is equally available to both parties, cannot raise an estoppel.” Ham v. Gouge, 214 Pa.Super. 423, 426, 257 A.2d 650, 652 (1969). Similarly, an estoppel cannot be created by representations or opinions concerning matters of law. See: 31 C.J.S. Estoppel § 79.
[T]he record is clear that the delay by Gabovitz in filing her claim for work loss benefits was attributable not to any action or inaction on the part of [the insurer], but rather to her own mistaken judgment that such benefits simply were not available under the No-fault Act. As we have already suggested, Gabovitz’s misconception regarding her right to recover is not a ground upon which an estoppel will lie. As a matter of law, therefore, State Auto is not estopped from asserting the defense of the statute of limitations.

Id., 362 Pa.Superior Ct. at 23-25, 523 A.2d at 406-407.

Gabovitz has not been overruled by the Supreme Court in Dercoli v. Pennsylvania National Mutual Ins. Co., 520 Pa. 471, 554 A.2d 906 (1989) or by the Superior Court in Miller v. Keystone Insurance Co., 402 Pa.Super. 213, 586 A.2d 936 (1991), alloc. granted, 528 Pa. 631, 598 A.2d 284 (1991).

In Dercoli, the Supreme Court expressly decided the following issue: “[W]hether the duty of fair dealing and good faith requires an automobile insurer to properly advise its insured of the insured’s entitlement to present a claim or claims under the applicable policy where the insurer advises its insured that legal representation is unnecessary and induces the insured to rely upon the insurer to pay appropriate benefits?” Id., 520 Pa. at 473, 554 A.2d at 907 (emphasis added). The trial court had sustained the defendant-insurer’s demurrer to the plaintiff’s complaint and had dismissed the plaintiff’s suit against the insurers. Therefore, the Court accepted as true all material facts and reasonable inferences alleged in the complaint. These included the following:

17. At all times herein material, Plaintiff was not represented by legal Counsel, and Defendants’ Agents represented to and assured Plaintiff that her claim would be processed without the need for Plaintiff to be independently represented.
18. Plaintiff reasonably relied entirely upon the advice of Defendants’ agents as to the nature and extent of benefits which were due to her under said insurance contracts. Further, Defendant’s agents were fully cognizant of Plaintiffs said reasonable reliance and lack of independent representation, (emphasis added).

Instead of adequately informing the plaintiff regarding the benefits due under her automobile insurance policy, the insurers in Dercoli had withheld recent changes in the law regarding interspousal immunity which would have enabled the plaintiff to increase her recovery from the insurers. Under these circumstances, where the insurers’ agents “voluntarily undertook to provide assistance and advice to [the plaintiff] and in the process advised her against retaining independent legal counsel,” the Supreme Court held the insurers had breached their duty of good faith and fair dealing to the plaintiff-insured. Id., 520 Pa. at 477, 554 A.2d at 909.

The lead opinion in Dercoli was authored by Justice Larsen, with only one other Justice joining. The narrow scope of the Court’s holding was demonstrated by a concurring opinion, written by Justice Papadakos and joined by Justice McDermott, which observed that the “insurers [had] breached a voluntarily assumed fiduciary duty to provide [plaintiff] with all available benefits, ...,” and further, that “in this case, the insurers themselves voluntarily [had] transformed themselves into legal advisors to the [plaintiff].” Id., 520 Pa. at 481-482, 554 A.2d at 911. Under these circumstances, a majority of the Court refused to apply the bar of the statute of limitations. Chief Justice Nix and Justices Flaherty and Zappala dissented.

Miller v. Keystone Insurance Co., supra, was an unwarranted extension of Dercoli. It held that where an insured was unrepresented by counsel a duty to advise the insured of his or her rights under a policy of automobile insurance was imposed upon the insurer “implicitly” by the terms of the No-fault Motor Vehicle Insurance Act. This statute, the Court observed, “encouraged claimants to place their trust in their insurance companies to see to it ... that they would receive all to which they were entitled under the Act.” Id., 402 Pa.Superior Ct. at 224-225, 586 A.2d at 942. In effect, the Miller court sought to extend the Dercoli holding to all persons who have a claim against an insurance company while they are unrepresented by counsel. To hold that the statute of limitations was not applicable to such claimants, however, ignored the purposes of the statute of limitations to bar actions by claimants who have slept on their rights.

A careful review of Dercoli reveals that a majority of the Supreme Court did not simply rely on the fact that the plaintiff therein had been unrepresented by counsel. Rather, it was the voluntary acts of the agents of the insurers which made the crucial difference to the authors of the lead and concurring opinions in Dercoli. Neither Dercoli nor any appellate decision prior to Miller has held that a Pennsylvania insurer owes a duty to provide its insured with legal advice regarding whether or when to sue the insurer. Indeed, such a notion is contrary to the recent decision in Kilmore v. Erie Insurance Co., 407 Pa.Super. 245, 595 A.2d 623 (1991), where Judge Tamilia, writing for the majority, appropriately observed:

Assuming, arguendo, the nature of an insurance contract presumes the insurer assumes the responsibility for processing its insured’s claim, we find no evidence the remaining Dercoli factors were established. [Plaintiffs] have not asserted that they, as the insureds, were acting in reliance upon the insurers’ advice and counsel. In fact, it appears advice and counsel from the respective insurers was neither sought nor offered, and in the absence of the former action we find no requirement of the latter.

Id., 407 Pa.Superior Ct. at 251-252, 595 A.2d at 626.

The plaintiffs in the instant case have not alleged that INA voluntarily offered to process their respective claims without the need for independent representation. Although plaintiffs argue, in conclusory fashion, that they reasonably relied on INA for their benefits, there is no evidence that INA induced or encouraged such reliance or, indeed, that INA had any knowledge that the insureds were relying on their insurer for advice. Absent proof that the insurer deliberately induced its insured to forego legal representation and rely upon it for advice or, at least, that the insurer was aware that its insured was relying on its advice and counsel, I am unable to join the majority’s ruling that the insurer breached its duty of good faith and fair dealing by failing to pay work loss benefits for which no claim had been made. When the statute of limitations expired, the instant claims for work loss benefits were barred. Here, as in Gabovitz, it “is clear that the delay [by plaintiffs] in filing [their] claim[s] for work loss benefits was attributable not to any action or inaction on the part of the [insurer] but, rather, to [the] mistaken judgment that such benefits simply were not available under the No-fault Act.” Gabovitz v. State Auto Insurance Association, supra, 362 Pa.Superior Ct. at 25, 523 A.2d at 407. For this reason, I would affirm the judgments entered by the trial court on all claims.

      . The decedents were either insureds of INA or had their claims assigned to INA pursuant to the No-fault Act assigned claims plan, 40 P.S. § 1009.108.

      . The record shows that the class has yet to be certified.

      . Cunningham v. Insurance Co. of N. Am., 515 Pa. 486, 530 A.2d 407 (1987) , cert. denied, 484 U.S. 1008, 108 S.Ct. 704, 98 L.Ed.2d 655 (1988).

      . INA has filed a cross appeal wherein it contends that if the trial court permitted intervenors, Wells, Marino and Geiger, to assert claims as survivors of the deceased insureds, the trial court has committed reversible error. Our review of the record indicates that the trial court granted the petitions to intervene filed by these individuals in their capacity as administrator/trix of the insureds’ estates. Therefore, the respective estates are party to this action, not the individual survivors of the deceased. Accordingly, INA’s cross appeal does not present an issue for our review. See supra note 3.

      . Hack v. Hack, 495 Pa. 300, 433 A.2d 859 (1981).

      . The trial court herein distinguished Dercoli by finding no suggestion that INA had assumed any such duty of counselling. (T.C.O. at 10).

      . In Miller, we found that an internal memorandum written by an employee of the insurer was at least some evidence that the insurer was aware that the law governing recovery of work loss benefits was changing.

      . We are of the opinion that the requirement that "an action for additional benefits be commenced not later than two years after the last payment of benefits," as written, is also a statute of repose. 40 P.S. § 1009.106(c)(1).

      . The statute of limitations relevant to the Lasoya claim permits a medical malpractice action to be filed within two years of the resulting death or injury; however, in no event, may an action for medical malpractice be brought more that five years after the date on which the negligent or wrongful act occurred. Ga.Code Ann. § 9-3-71.

      . Ohio Rev.Code Ann. § 2125.02(D). Section 2125.02(D) provides that an action for wrongful death shall be commenced within two years after the decedent’s death. Although the court refers to this section as a statute of limitations, it is actually a statute of repose because a defendant’s liability ends upon passage of the two year period.

      . Appellee argues that it owes a lesser duty to a claimant under the assigned claims plan, 40 P.S. § 1009.108, as opposed to the duty owed to one of its insureds. We fail to find any merit to this argument. Accordingly, we find that the duty of good faith and fair dealing applies equally to all claimants under the No-fault Act.

      . Thirty-one defendant insurance companies were involved in Nye, of which one was INA, the defendant in Cunningham. However, the plaintiff in Nye was insured only by Erie.

      . This action was Nye v. Erie Insurance Exchange, 504 Pa. 3, 470 A.2d 98 (1983).

      . The Miller court attempted to distinguish the Gabovitz decision, although it is questionable whether there is any real difference.