text:
    615 A.2d 367
    H. Alfred SOLOMON, Jr. v. Bernard E. GIBSON, Janet E. Gibson-Yoder, Stephen G. Gibson, Mary Catherine Valentour, Catherine Valentour, John E. Valentour and Sarah Valentour, Betty G. Norris and Scott A. Norris, III. Appeal of Henriette V. SOLOMON, Personal Representative of Estate of H. Alfred Solomon, Jr. and James G. Groninger, Administrator, D.B.N.C.T.A. of the Estate of Elizabeth R. Solomon.
    Superior Court of Pennsylvania.
    Argued Aug. 27, 1992.
    Filed Oct. 20, 1992.

      Scott S. Small, Pittsburgh, for appellants.
    Michael J. Seymour, Bethel Park, Lynn E. MacBeth, Pittsburgh, for Valentour, appellees.
    Frederick J. Francis, Pittsburgh, for appellee.
    Before MONTEMURO, KELLY and BROSKY, JJ.
   MONTEMURO, Judge:

This is an appeal from an order entered sustaining the demurrers of appellees’ and dismissing appellant’s complaint against appellees. On appeal, appellant raises the following issues:

(1) Whether the estates and trusts of which appellees are beneficiaries obtained money belonging to the estate for which appellant serves as executor without giving valuable consideration; and
(2) Whether the knowledge of the appellees’ agent or fiduciary should be imputed to the appellees?

For the reasons set forth below, we affirm.

Charles Thorp, III was the Co-Trustee of the Testamentary Trusts of Helen L. Gibson (Gibson Trusts A, B, and C), the Trustee of the Janet E. Gibson Trust, the Executor of the Estate of Elizabeth G. McCarnes, and the attorney of record for the Estates of Scott A. Norris, Jr. and Elizabeth R. Solomon. In his complaint, appellant avers that on or about December 21, 1988, Thorp withdrew $77,250 from Gibson Trust A and B and $37,000 from the Janet E. Gibson Trust. Appellant used and subsequently lost $110,000 of this money for his personal speculation in index options. The complaint also alleges that on November 5, 1987 and January 4, 1988, Thorp withdrew $20,000 and $36,000, respectively, from the Norris Estate. Appellant allegedly also used and subsequently lost this money for his personal speculation in index options. Finally, on May 12, 1988 and June 2, 1988, Thorp withdrew $210,000 and $64,000, respectively, from the McCarnes Estate. Again, appellant allegedly used and lost $250,000 of this money for the purchase of index options. Thorp’s speculation in these options with the misappropriated funds was for Thorp’s own personal benefit, and not for the estates from which the funds were taken. Appellees are beneficiaries of the various estate accounts described herein.

In order to cover up the fact that he lost the money belonging to the various estates described above, the complaint alleges that Thorp withdrew money from the Solomon estate and gave those sums to the various estates wherein appellees are beneficiaries. As a result, appellant brought an action for money had and received for these sums against the various appellees. Appellees filed preliminary objections in the nature of demurrers to appellant’s complaint. Following argument, the trial court sustained appellees’ demurrers. This appeal follows.

Our scope of review in an appeal from an order sustaining preliminary objections in the nature of a demurrer is plenary. Kyle v. McNamara & Criste, 506 Pa. 631, 487 A.2d 814 (1985). When reviewing such an order:

All material facts set forth in the Complaint as well as all inferences reasonably deducible therefrom are admitted as true for [the purpose of this review.] The question presented by the demurrer is whether on the facts averred the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.

Id., 506 Pa. at 634, 487 A.2d at 816 (citations omitted).

Keeping these guidelines in mind, we now must decide whether appellant’s complaint failed to state a claim upon which relief could be granted. A cause of action for money had and received entitles a party to relief where money is wrongfully diverted from its proper use and that money subsequently falls into the hands of a third person who has not given valuable consideration for it. Brubaker v. County of Berks, 381 Pa. 157, 112 A.2d 620 (1955). The cause of action fails, however, where the recipient of the money has given consideration in exchange for the funds and is unaware that the money was procured by fraudulent means. Id.

Under the Restatement of Restitution, the cause of action is defined as follows:

A person who, non-tortiously and without notice that another has the beneficial ownership of it, acquires property which it would not have been wrongful for him to acquire with notice of the facts and of which he is not a purchaser for value is, upon discovery of the facts, under a duty to account to the other for the direct product of the subject matter and the value of the use to him, if any, and in addition, to
a) return the subject matter in specie, if he has it;
b) pay its value to him, if he has non-tortiously consumed it in beneficial use;
c) pay its value or what he received therefor at his election, if he has disposed of it.

Restatement of Restitution § 123. See also Transamerica Insurance Company v. Long, 318 F.Supp. 156, 160 (W.D.Pa.1970) (holding that once stolen money has been negotiated, the victim-owner,, or one standing in his shoes, cannot recover a like amount from a third party recipient unless it can be proved that the recipient had prior knowledge that the money was stolen.)

In the instant case, the trial court found that when Thorp stole money from appellees’ estates, it created a debt to these estates. Thereafter, when Thorp transferred appellant’s money to appellees’ estates, he was satisfying a pre-existing debt to appellees. Thus, the trial court found that since appellees gave consideration, i.e. the satisfaction of a pre-existing debt, for the money, appellant could not maintain a cause of action against appellees, who were without notice of Thorp’s fraudulent activities. On appeal, appellant argues that the trial court erred in finding that appellees gave valuable consideration for the money that Thorp transferred to their estates because the transfer did not constitute the satisfaction of a pre-existing debt. We disagree.

Under the Restatement of Trusts Section 304:

If the trustee transfers trust property in consideration of the extinguishment in whole or in part of a pre-existing debt or other obligation, the transfer is for value if
a) the trust property transferred is a negotiable instrument or money.

Restatement of Trusts § 304(2). Likewise, in Pennsylvania, we have held that the cancellation of a valid pre-existing debt or other obligation constitutes value. See Brubaker v. County of Berks, supra, and Transamerica Insurance Company v. Long, supra. Appellant does not disagree with this proposition, but instead argues that the transfer of money from Thorp to appellees did not constitute the satisfaction of a preexisting debt because, at the time of the transfer, appellees were not even aware of the debt. Thus, according to appellant, the transfer cannot constitute the cancellation of a debt because no intentional, advertent, bargained for transaction giving rise to a debt has taken place. As stated above, however, to constitute value all that needs to be shown is that the transfer was done to satisfy a pre-existing debt or other obligation. As trustee to appellees’ various estates, Thorp had a legal duty to distribute the estates’ assets to the beneficiaries. When Thorp transferred the money to the estates and distributed the assets to the beneficiaries, he was satisfying his obligation to appellees. Having distributed the assets to the beneficiaries of the estates, Thorp satisfied his obligation to the estates, and thus value was given. Accordingly, appellees would be considered bona fide purchasers for value, and would be entitled to keep the misappropriated funds. See George v. Richards, 361 Pa. 278, 64 A.2d 811 (1949) (A transfer of trust property to a bona fide purchaser for value extinguishes the rights of beneficiaries in the property sold.) In fact, in the Restatement of Trusts, a situation very similar to the instant one is addressed in comment b of Section 279. Comment b provides:

Where beneficiary a bona fide purchaser. The creditor cannot recover payment of his claim from the beneficiary personally if, when he received a conveyance of the trust property, the beneficiary was in the situation of a bona fide purchaser. Thus, if the trustee misappropriates trust money and thereafter wrongfully takes the same amount of money belonging to a third person and deposits it in his account as trustee and subsequently pays it to the beneficiary, who receives it in satisfaction of his claim against the trustee without notice that the trustee had wrongfully obtained the money, the beneficiary is a bona fide purchaser of the money so paid and is under no liability to the third person.

Restatement of Trusts § 279, comment b (emphasis added). Thus the trial court did not err in concluding that appellees, as bona fide purchasers for value, were entitled to retain the misappropriated funds.

Appellant also argues that in order for satisfaction of a preexisting debt to constitute consideration, the debt must be advertent in nature. First we note, as stated above, that in the instant case Thorp, by distributing the funds to appellees, was actually satisfying his obligation as trustee to appellees. Thus the distribution constituted an “other obligation” as provided for in Restatement of Trusts § 304. This case, however, could also be decided on the basis that the distribution of the money to appellees constituted the cancellation of a pre-existing debt. Simply because appellees were not aware of the original theft of their money by Thorp does not mean that Thorp did not owe appellees a debt. In Brubaker, supra, our Supreme Court dealt with a very similar issue. In that case, the plaintiff gave two checks totaling $7,000.00 to Moyer for the purchase of certain real estate. Moyer, who was county treasurer of Berks County, did not use the checks for the purpose intended but rather deposited them in his account as county treasurer. When Moyer’s term ended, a settlement of his accounts as County treasurer showed them to be in balance. Moyer subsequently died without ever applying plaintiffs money to the real estate purchase. Plaintiff brought suit against Berks County seeking to recover the $7,000.00.

In rendering its decision, the Supreme Court made no distinction between advertent and inadvertent debts. Rather the court intimated to the fact that the return of stolen money constituted the satisfaction of a valid pre-existing debt. In order to retain the money, however, the court stated that the third party had the burden of proving that value was given for the money. In that situation, it was held that:

The County failed to produce such proof, advancing only the supposition that Moyer might have owed the County $7000 before he deposited the checks and that, therefore, the County came into possession of the checks for value received. The County entertained also the supposition that Moyer might have extracted $7000 from the safe, leaving there in its place two checks. But the bridge of legal proof cannot be built on the phantom piers of supposition. There was no evidence of any kind to give form and substance to these suppositions.

Id. 381 Pa. at 160, 112 A.2d at 621-622.

Thus, only because Berks County could not prove that Moyer had actually embezzled or misappropriated County funds, the county could not keep the funds. In so holding, the Supreme Court recognized that the return of previously stolen funds would constitute the satisfaction of a pre-existing debt, regardless of whether the transaction was advertent or inadvertent in nature .

Appellant cites to several cases from other jurisdictions in support of his assertions. We find, however, that these cases are not controlling and, in any event, distinguishable. First of all, Atlantic Cotton Mills v. Indian Orchard Mills, 147 Mass. 268, 17 N.E. 496 (1888), can be distinguished for the very reason appellant cites to George G. Bogert, Trusts and Trustees, (Rev. Second Ed,1982). In that case when the thief wrongfully transferred the plaintiffs funds to the defendants, he was doing so only to cover up his prior misappropriation. The thief never intended, nor attempted, to transfer title, but rather only wanted to be able to show the existence of the funds in the books to prevent discovery of his prior misappropriations. Before the thief was able to return the funds, however, he committed suicide. Thus, like the situation described in Bogert, this was merely a fictitious transaction or a “fictitious cancellation” of a debt. Since title was never actually transferred nor intended to be transferred to the defendants, they were not purchasers for value and could not retain the misappropriated funds.

Unlike the situation in Atlantic Cotton Mills, supra, however, Thorp intended to and actually transferred title to the funds. He meant for appellees to have the money in satisfaction of his obligation to them, and thus transferred the funds to them completely. It was not a mere fictitious transaction, and thus is distinguishable from the cases cited by appellant;

Appellant also cites to the case of Newell v. Hadley, 206 Mass. 335, 92 N.E. 507 (1910) in support of his position. Again, however, we find the case to be of no assistance to appellant’s cause. In that case, as in the instant case, a trustee stole money from one trust to cover up a prior misappropriation in another trust. With the stolen money, the trustee directly paid some of the creditors of the trust for debts incurred by the trust. He also paid some of the money directly to the beneficiaries of the trust. The court held that the defendants had to return the amount of money that was paid to the creditors of the trust, but could retain the money paid directly to the beneficiaries. In making this determination, the court made a distinction between the actions of the trustee wherein he received the stolen money for the trust and then paid the creditors and wherein the innocent beneficiaries received the money for themselves. The court held that:

In this connection it should be pointed out that there were payments made out of this $11,000 to the beneficiaries of the defendant trust and to [the trustee’s] co-trustee. In receiving these payments the beneficiaries and the co-trustee did not act through [the trustee]. They acted for themselves. They are bona fide purchasers without notice of the money so paid to them, and the plaintiffs have no claim for the $612.45 so paid out.

206 Mass, at 348, 92 N.E. at 513. Thus, in this case, as in the above excerpt from the Newell case, since the money was paid directly to the beneficiaries, they were bona fide purchasers for value and are entitled to retain the money.

Appellant’s next argument is that the knowledge of appellee’s agent or fiduciary that the money was stolen should be imputed to the appellees. It is true that

a principal is liable to innocent third parties for the frauds, deceits, concealments, misrepresentations, torts, negligences and other malfeasances or misfeasances of his agent committed in the course of his employment, although the principal did not authorize, justify or participate in, or indeed know of, such misconduct, or even if he forbade the acts or disapproved of them.

Aiello v. Ed Saxe Real Estate, Inc., 508 Pa. 553, 559, 499 A.2d 282, 287 (1985). However, in a case such as this, where the

agent acts in his own interest which is antagonistic to that of his principal, or commits a fraud for his own benefit in a matter which is beyond the scope of his actual or apparent authority or employment, the principal who has received no benefit therefrom will not be liable for the agent’s tortious act.

Todd v. Skelly, 384 Pa. 423, 429, 120 A.2d 906, 909 (1956). Additionally, as the trial court pointed out, comment j and Illustration 13 to Section 282 of the Restatement of Agency are applicable in the instant case. This comment and Illustration provide:

(j) the Principal as a bona fide purchaser. If the principal obtains title to property because of the independent fraud of his agent, he may still be a bona fide purchaser if, without knowledge of the fraud, he pays value to the agent or to another. Thus, as stated in § 279, if he deals with the agent as an adverse party and receives as a purchaser or property which the agent had obtained by fraud, he may keep it. So, if an agent having embezzled from his principal has replaced the embezzled funds with others which he has stolen, the principal is protected if, with or without knowledge of the embezzlement, he settles accounts with the agent.
Illustration 13. A is the Treasurer of the town of P and also Treasurer of the T Corporation. He has abstracted from the town funds and, to prevent discovery, he steals money from T and puts it into the town’s treasury. A’s accounts with the town are approved by the proper authorities and his bond as town treasurer is cancelled. The town is not affected by A’s knowledge that the money in question was stolen from T.

Thus, since Thorp’s actions were outside of the scope of his duties and his interest was plainly independent of appellees’ interests, his actions will not be imputed to appellees.

Order affirmed.

      . We recognize that this rule extrapolated from Brubaker is only dicta. However, it is not this holding alone which guides the outcome of this case. Taken together with the other authorities cited herein, we find the dismissal is clearly supported by the law.


source: Caselaw Access Project

author: BROSKY, Judge.

license: Public Domain

text:
    615 A.2d 372
    KEMPER NATIONAL P & C COMPANIES and American Motorists Insurance Company as Subrogees of Rick Boyd and U.S. West Information Systems Inc., Appellants v. Kevin C. SMITH, D.C. and Kathy O. Smith, D.C. and the Ashton Village Chiropractic Health Center.
    Superior Court of Pennsylvania.
    Argued June 17, 1992.
    Filed Oct. 20, 1992.

      Leslie Martinelli-Cyr, Philadelphia, for appellants.
    Alan S. Gold, Jenkintown, for appellees.
    Before ROWLEY, President Judge, and HUDOCK and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from the order of the lower court which sustained appellees’ preliminary objections in the nature of a demurrer and dismissed appellants’ complaint.

Before proceeding to address the issues raised by appellant, it is necessary to recount the relevant facts of this case. Craig Garsed and Rick Boyd, both residents of Arizona, were involved in an automobile accident on October 30, 1986 near Phoenix, Arizona. At the time of the collision, Mr. Boyd was employed by U.S. West Information Systems, Inc. and was insured under policies provided by appellants, Kemper National P & C Companies and American Motorists Insurance. Mr. Garsed sustained neck and back pain as a result of the accident and was treated by an Arizona chiropractor, Dr. Jeffrey Lowy, for these injuries. Mr. Garsed planned a trip to Philadelphia, Pennsylvania in December, 1986 and apprised Dr. Lowy of this event. Dr. Lowy advised Mr. Garsed that he should seek chiropractic treatment if he experienced pain while on vacation. Mr. Garsed heeded this advice and sought treatment from appellees, Kevin Smith, D.C., Kathy Smith, D.C. and/or the Ashton Village Chiropractic Health Center in Philadelphia. After receiving chiropractic treatment from appellees, Mr. Garsed suffered a stroke that has left him permanently disabled.

Mr. Garsed instituted suit against Rick Boyd for all of his injuries, including those allegedly caused by appellees, in December, 1987. Appellants entered into a structured settlement agreement and release with Mr. and Mrs. Garsed in 1990. The agreement provides that the Garseds will receive an immediate payment of $345,000.00 and periodic payments until October 1, 2015. In exchange for these payments, the Garseds completely released Mr. Boyd and appellants from all past, present and future claims attributable to the accident. The agreement additionally provides that appellants reserved any rights of contribution and/or indemnity which they may have against appellees.

Appellants instituted suit against appellees on July 1, 1991 pursuant to which they sought contribution and/or indemnity for that portion of the Garseds’ injuries which were allegedly caused by appellees. Appellees filed preliminary objections in the nature of a demurrer. In response to appellees’ objections, appellants expressly indicated that the contribution claims were withdrawn. See Brief of Appellants in Opposition to Preliminary Objections of Appellees, at 3. Appellees’ preliminary objections were sustained by the trial court which directed that the complaint be dismissed. This timely appeal followed.

Appellants present the following questions for review: (1) whether an insurer, who is a subrogee of the original tortfeasor and who settles with the injured plaintiff for all injuries arising out of an accident, is entitled to maintain an action for indemnification from a second or successive tortfeasor whose actions allegedly aggravated or caused additional harm to the injured plaintiff; and (2) whether appellees waived additional objections to the complaint which were raised in their reply brief but which were not set forth in the preliminary objections. For the reasons set forth below, we affirm the order of the lower court.

In reviewing the trial court’s grant of preliminary objections in the nature of a demurrer,

[ a]ll material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for [the purpose of this review.] The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.

Muhammad v. Strassburger, McKenna, Messer, Shilobod & Gutnick, 526 Pa. 541, 547, 587 A.2d 1346, 1349 (1991), cert. denied, — U.S. —, 112 S.Ct. 196, 116 L.Ed.2d 156 (1991) (citations omitted). Accord Vattimo v. Lower Bucks Hospital, Inc., 502 Pa. 241, 244, 465 A.2d 1231, 1232-1233 (1983).

Appellants contend that they are entitled to indemnification from appellees. We disagree. As explained by our Supreme Court:

‘There is ... a fundamental difference between indemnity and contribution. The right of indemnity rests upon a difference between the primary and secondary liability of two persons each of whom is made responsible by the law to an injured party. It is a right which enures to a person who, without active fault on his own part, has been compelled, by reason of some legal obligation, to pay damages occasioned by the initial negligence of another and for which he himself is only secondarily liable. The difference between primary and secondary liability is not based on a difference in degrees of negligence or on any doctrine of comparative negligence____ It depends on a difference in the character or kind of the wrongs which cause the injury and in the nature of the legal obligation owed by each of the wrongdoers to the injured person. Secondary liability exists, for example, where there is a relation of employer and employee, or principal and agent---- Without multiplying instances, ... the important point to be noted in all the cases is that secondary as distinguished from primary liability rests upon a fault that is imputed or constructive only, being based on some legal relation between the parties, or arising from some positive rule of common or statutory law or because of a failure to discover or correct a defect or remedy a dangerous condition caused by the act of the one primarily responsible____’ Thus, the rule is that where one’s active negligence has been established in a prior action, and the record of that litigation is introduced in the present action for indemnity, indemnity is not available if the claimant’s active fault has been established in the prior action.

Vattimo v. Lower Bucks Hospital, Inc., 502 Pa. at 250-251, 465 A.2d at 1236, quoting Builders Supply Co. v. McCabe, 366 Pa. 322, 325-328, 77 A.2d 368, 370, 371 (1951) (emphasis in original). Further:

Unlike comparative negligence and contribution, the common law right of indemnity is not a fault sharing mechanism between one who was predominantly responsible for an accident and one whose negligence was relatively minor. Rather, it is a fault shifting mechanism, operable only when a defendant who has been liable to a plaintiff solely by operation of law, seeks to recover his loss from a defendant who was actually responsible for the accident which occasioned the loss.

Walton v. Avco Corporation, 530 Pa. 568, 579, 610 A.2d 454, 460 (1992) (emphasis omitted), quoting Sirianni v. Nugent Brothers, Inc., 509 Pa. 564, 570-571, 506 A.2d 868, 871 (1986). We will evaluate appellants’ arguments and the decision of the lower court in accordance with the above principles.

Appellants initially argue that they have set forth a cause of action for indemnity against appellees because they were compelled, by operation of law, to pay for that portion of the Garseds’ injuries which were allegedly attributable to appellees. For support, appellants refer us to the rule set forth in the Restatement (Second) of Torts § 457 (1965) pursuant to which a negligent actor who is held liable for another’s bodily injury will also be deemed responsible for any additional bodily harm which results from the normal efforts of third parties to treat the other’s injury, regardless of whether the third parties’ acts are done in a proper or negligent manner. See Corbett v. Weisband, 380 Pa.Super. 292, 319, 551 A.2d 1059, 1072 (1988), allocatur denied, 524 Pa. 607, 569 A.2d 1367 (1989) and 524 Pa. 620, 571 A.2d 383 (1989); Embrey v. Borough of West Mifflin, 257 Pa.Super. 168, 175, 390 A.2d 765, 769 (1978); Lasprogata v. Qualls, 263 Pa.Super. 174, 180, 397 A.2d 803, 806 (1979) and the cases cited therein (which note that Pennsylvania has followed the Restatement rule). Appellants thus urge us to construe § 457 as a positive rule of law.

As applied in the context of an indemnity action, liability imposed pursuant to a positive rule of law suggests that a defendant is deemed responsible because of his or her relationship, not because of any actual negligence. For example, principals may be held liable for the acts of their agents, employers for the acts of their employees, suppliers for the acts of the manufacturers, municipalities for the acts of landowners in failing to keep their property safe, etc. See Builders’ Supply Co. v. McCabe, supra (citing examples). § 457 of the Restatement, however, does not impose liability merely because of the original tortfeasor’s status or relationship. Rather, the comments make clear that liability is imposed for any additional injuries caused by the medical providers because it is foreseeable that one who is injured by an original tortfeasor will seek treatment for those injuries. Simply stated, but for the negligent actions of the original tortfeasor, the plaintiff would not have been injured and would not have been treated by the physician. It is for this reason that liability for any additional harm is imposed under § 457 and not because of any positive rule of law. Thus, appellants’ liability for the Garseds’ injuries, if any, stemmed from their own negligent conduct and not from a positive rule of law.

More importantly, appellants have failed to state a cause of action for indemnity because they have not been compelled to pay any damages for which they are legally liable. It is well settled that voluntary payments in exchange for the compromise of a claim are not compulsory and do not entitle the paying party to a claim for subrogation or indemnity. Tugboat Indian Co. v. A/S Ivarans Rederi, 334 Pa. 15, 20, 5 A.2d 153, 155 (1939). To be entitled to indemnity where there has been a voluntary payment, the paying party must demonstrate that he or she was legally liable and could have been compelled to satisfy the claim. Id., 334 Pa. at 21, 5 A.2d at 156.

As applied here, the certified record reveals that appellants voluntarily settled with the Garseds. However, appellants have not admitted that they were legally liable for the injuries sustained by the Garseds. See Appellants’ Complaint, Exhibit B (Agreement of Settlement, Compromise and Release), at 2 (in which appellants and their insureds indicated that payment of the Garseds’ claim was not to be construed as an admission of liability and that a substantial portion, if not all, of the damages were attributable to appellees). Appellants’ complaint similarly contains no averments of liability. Under these circumstances, appellants have not stated a cause of action for indemnity because it does not appear from the pleadings and documents attached thereto they have been compelled to pay a claim for which they were legally liable. Tugboat Indian Co. v. A/S Ivarans Rederi, supra.

Even were we to assume that appellants are legally liable for the Garseds’ injuries, appellants would not be entitled to indemnification if the injuries were the result of appellants’ active or primary negligence. As indicated above, defendants who are actively negligent, as opposed to those whose negligence is imputed, are precluded from obtaining indemnity. Vattimo v. Lower Bucks Hospital, Inc. and Builders Supply Co. v. McCabe, supra. Appellants recognize this principle and attempt to avoid it by asserting that their negligent conduct was passive or secondary to that of appellees or imputed by operation of law. As discussed above, liability for the Garseds’ injuries is not imputed by operation of law, but is imposed as a direct and proximate result of the tortious acts committed by appellants’ insured. Thus, appellants would not be entitled to indemnification from appellees in the event that their insured’s active negligence caused the Garseds’ injuries.

Despite their tortuous attempts to twist the facts of this case to make it squarely conform to the classic or typical indemnity situation, it is clear that appellants are actually attempting to equitably distribute or apportion responsibility for the Garseds’ injuries between themselves and appellees. See Appellants’ Brief at 10 (where appellants claim that indemnity is a procedure to approximate an equitable division of responsibility between the negligent parties and that such division is sought here) and 12 (where appellants admit that they are attempting to shift to responsibility to appellees for the injuries they allegedly caused to the Garseds); Appellants’ Reply Brief at 3 (appellants indicate that they are only seeking to recover for those activities for which appellees were actively at fault). While appellants have not characterized it as such, appellants are essentially seeking to recover a form of contribution from a successive or independent tortfeasor. Recovery of this type has not been expressly adopted in Pennsylvania either by statute or decisional authority. See 42 Pa.C.S.A. § 8324(a) (providing for contribution only among joint tortfeasors) and Harka v. Nabati, 337 Pa.Super. 617, 623, 487 A.2d 432, 435 (1985) (providing that the right of contribution exists only between joint tortfeasors). However, several prior decisions of this court have permitted damages among successive or independent tortfeasors to be apportioned. See, e.g., Corbett v. Weisband, 380 Pa.Super. at 332-333, 551 A.2d at 1079; Lasprogata v. Qualls, 263 Pa.Super. at 179-180, 397 A.2d at 805-806; Embrey v. Borough of West Mifflin, 257 Pa.Super. at 185, 390 A.2d at 774. These cases do not support appellants’ position and are distinguishable.

Corbett involved a plaintiff who had a recurring knee injury. During the course of several years, the plaintiff was respectively treated by three different physicians. The last physician, Dr. Greene, eventually amputated the plaintiff’s leg due to her chronic knee problems. The plaintiff subsequently instituted separate actions against each physician. The actions against the first two physicians were later consolidated for trial. At trial, the plaintiff sought to recover from the second physician for all of the damages relating to the subsequent care given by the third physician, ie., the amputation of her leg. The trial court concluded, as a matter of law, that the second physicians were not liable for the injuries attributable to the third physician because the third physician’s negligent conduct constituted a superceding or intervening cause which relieved the second physicians of liability. The trial court further excluded all evidence pertaining to the damages resulting from the third physician’s treatment. On appeal, this court reversed each of the trial court’s rulings and concluded that the question of whether the third physician’s negligence was so highly extraordinary as to constitute a superceding or intervening cause was a question to be resolved by the jury. We further held that the trial court erred in excluding evidence of the damages attributable to the third physician’s treatment. Consequently, the plaintiff was awarded a new trial at which she could introduce evidence of all of her injuries and at which the second physicians would be permitted to introduce additional evidence suggesting that the damages could be apportioned.

In Lasprogata, the injured plaintiff settled with the original tortfeasor for only those injuries for which he was responsible. The plaintiff then sued the physician for the injuries which he allegedly caused. On appeal, we concluded that the physician was not entitled to contribution from the original wrongdoer because the injuries caused by each were separate and distinct, and hence could be apportioned. Because the plaintiff had settled with the original tortfeasor and had been compensated for only these injuries, he was entitled to maintain an action against the physician limited to those injuries allegedly due to the physician’s negligence.

Embrey presented a completely different situation in which the plaintiff brought separate actions against both the original tortfeasors and the medical providers. These actions were consolidated for trial and the jury was instructed to apportion the responsibility for the damages among those defendants found to be negligent. After trial, the medical providers settled with the plaintiff and sought contribution from the original tortfeasors. Contribution was denied. On appeal, this court approved of the trial court’s method of apportioning responsibility for the injuries among the defendants and affirmed the denial of contribution.

Unlike Embrey, this case does not involve a situation in which the plaintiffs sued both the original tortfeasor and the negligent physician in a single action. This case similarly does not involve a situation like that in Lasprogata in which the plaintiff settled and released the original wrongdoer and is now seeking recovery from the physician for those injuries solely attributable to the physician’s malpractice. Corbett is also distinguishable in that the question of contribution between prior and subsequent tortfeasors was never at issue; rather the only matter in dispute was the extent of the prior tortfeasor’s liability to the plaintiff. These decisions therefore do not provide any support or basis for the contribution theory suggested by appellants.

Appellants appear to recognize this fact and refer us to the decisions of other jurisdictions which have permitted an original tortfeasor to recover from a second independent tortfeasor pursuant to a theory of implied or equitable indemnity, subrogation or contribution. See, e.g., Herrero v. Atkinson, 227 Cal.App.2d 69, 38 Cal.Rptr. 490 (1964) (indemnity); Niles v. City of San Rafael, 42 Cal.App.3d 230, 116 Cal.Rptr. 733 (1974) (followed Herrero); R. & G. Orthopedic Appliances v. Curtin, 596 A.2d 530 (D.C.App.1991) (indemnity); Underwriters at Lloyds v. City of Lauderdale Lakes, 382 So.2d 702 (Fla.1980) (subrogation); Gertz v. Campbell, 55 Ill.2d 84, 302 N.E.2d 40 (1973) (indemnity); Hunt v. Ernzen, 252 N.W.2d 445 (Iowa 1977) (indemnity); Gulick v. Kentucky Fried Chicken Manufacturing Corp., 73 Mich.App. 746, 252 N.W.2d 540 (1977) (indemnity); New Milford Board of Education v. Juliano, 219 N.J.Super. 182, 530 A.2d 43 (1987) (indemnity); Musco v. Conte, 22 A.D.2d 121, 254 N.Y.S.2d 589 (1964) (indemnity); Travelers’ Indemnity Co. v. Trowbridge, 41 Ohio St.2d 11, 321 N.E.2d 787 (1975) (indemnity); Radford-Shelton & Associates Dental Laboratory, Inc. v. St. Francis Hospital, Inc., 569 P.2d 506 (Okla.Ct.App.1976) (contribution); Greene v. Waters, 260 Wis. 40, 49 N.W.2d 919 (1951) (subrogation). But see Transcon Lines v. Barnes, 17 Ariz.App. 428, 498 P.2d 502 (1972) and Wilson v. Krasnoff, 560 A.2d 335 (R.I.1989) (which have completely rejected the indemnity/subrogation theory and disallowed recovery on this basis).

We are not persuaded by the authorities in which a right to recovery pursuant to the doctrines of contribution, indemnity or subrogation has been recognized. Nearly all of these cases arose in states which, at the time the cases were decided, lacked statutes which provided for comparative negligence or contribution among tortfeasors. These decisions may thus be construed as an attempt by the courts to provide for the equitable apportionment of liability among multiple tortfeasors. With the exception of the District of Columbia, all of the jurisdictions previously permitting recovery on an indemnity or equivalent theory have enacted statutes or otherwise adopted comparative negligence principles which now provide for the apportionment of liability among all responsible defendants. See, e.g., Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 (1975) (adopting comparative negligence doctrine); Fla.Stat.Ann. § 768.31 (West 1975); Ill. Ann.Stat. ch. 70, para. 301-302 (Smith-Hurd 1979); Iowa Code Ann. § 668.3 (West 1984); Mich.Comp.Laws Ann. § 600.2925b (West 1974); N.J.StatAnn. 2A:15-5.2 (West 1973); N.Y.Civil Practice Law & Rules § 1401 (McKinney 1974) ; Ohio Rev.Code Ann. § 2307.33 (Anderson 1988); Okla. Stat.Ann. tit. 23, § 13 (West 1979); Wis.Stat.Ann. § 895.045 (West 1931). See also Ariz.Rev.Stat.Ann. § 12-2506 C (1988) (which provides for the apportionment of liability among all defendants, even those who are not parties).

Further, in the few cases which have arisen under these statutes, the courts have either disallowed recovery on the basis of indemnity or have held that the legislative enactments have abolished or superceded the previously recognized right to indemnity. See, e.g., Mayhew Steel Products, Inc. v. Hirschfelder, 150 Ill.App.3d 328, 103 Ill.Dec. 587, 501 N.E.2d 904 (1986), appeal denied, 114 Ill.2d 547, 108 Ill.Dec. 419, 508 N.E.2d 730 (1987) (concluding that the common law right to indemnity was superceded by statute and indemnity was not specifically authorized therein); American Trust & Savings v. U.S. Fidelity & Guaranty Co., 439 N.W.2d 188 (Iowa 1989) (holding that equitable indemnity has been replaced by enactment of Iowa’s comparative negligence act); Teepak, Inc. v. Learned, 237 Kan. 320, 699 P.2d 35 (1985) (characterizing claim for indemnity against negligent physician as one for contribution and “holding that original tortfeasor was not entitled to recover either indemnity or contribution under Kansas’ comparative negligence statute); Joiner v. Diamond M Drilling Co., 688 F.2d 256 (5th Cir.1982) (disallowing claim for indemnity, but permitting claim for contribution among successive or independent tortfeasors under Louisiana’s contribution statute which permits contribution among successive or independent tortfeasors); Gruett v. Total Petroleum, Inc., 182 Mich.App. 301, 451 N.W.2d 608 (1990), reversed on other grounds, 437 Mich. 876, 463 N.W.2d 711 (1990) (only recognizing a limited right to indemnity where a party is free from active fault and there is a special relationship or course of conduct between the indemnitor and indemnitee); Salonia v. Samsol Homes, Inc., 119 A.D.2d 394, 507 N.Y.S.2d 186 (1986) (amendments to New York’s comparative negligence contribution law overruled prior caselaw recognizing a claim for indemnity). But see American Motorcycle Association v. Superior Court, 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899 (1978) (adopting a comparative indemnity theory).

Because many of the authorities relied upon by appellants have been affected by the enactment of subsequent statutes, we question the continuing precedential value of these decisions. Moreover, the rights of contribution and apportionment of liability among multiple defendants is a matter which is governed exclusively by statute in Pennsylvania. While some states have attempted to ameliorate the precise problem at issue here by limiting a defendant’s liability for those injuries caused solely by his or her own negligence or by permitting the apportionment of liability among all tortfeasors, even those who have not been made parties, Pennsylvania’s statute does not so provide. Rather, Pennsylvania only authorizes contribution among joint tortfeasors. Although Pennsylvania’s version of the Uniform Contribution Among Tortfeasors Act preserves a common law right of indemnity, see 42 Pa.C.S.A. § 8323, the facts of this case do not fall within the classic indemnity relationship which has previously been recognized by our Supreme Court. Because the common law regarding contribution has been replaced by statutory authority which does not recognize a right of contribution among successive or independent tortfeasors, this court is not at liberty to endow appellants with such a right in contravention of that which has been granted by the legislature. To do so would undoubtedly disrupt the legislative scheme. If a new theory of recovery is to be recognized in Pennsylvania, it should come from either our Supreme Court or the legislature.

In view of our disposition of appellants’ first issue, we need not address appellants’ remaining claim relating to the waiver of additional objections by appellees. In any event, it does not appear that the trial court relied upon or even considered appellees’ reply memorandum as it was not received by the court until after its order granting the demurrer had been entered. Appellees also have not attempted to rely upon these additional grounds in their appellate brief. Under these circumstances, the question of whether appellees have waived their additional objections is irrelevant.

Ás a final point, we are compelled to comment upon the arguments raised by the parties relating to the lower court’s opinion in which it concluded that the order granting the preliminary objections should be reversed. In support of its decision, the trial court appeared to indicate that the provisions of the settlement agreement could only be given effect by permitting appellants to maintain their action for indemnification. Trial Court Opinion, filed 1/2/92, at 3. Appellees present a complicated argument in response to the trial court’s reasoning. According to appellees, the trial court erred because the settlement agreement expressly provides that it is to be construed in accordance with Arizona law. As indicated above, Arizona law did not permit an original tortfeasor to recover indemnity from a physician who aggravated or caused additional injury to the plaintiff. See Transcon Lines v. Barnes, supra. Because Arizona law did not recognize the cause of action preserved by appellants in their settlement agreement, appellees believe that appellants could not have reserved a cause of action which they did not possess. Therefore, refusal to permit appellants to proceed on their indemnification claim in Pennsylvania cannot be construed as a failure to give effect to the provisions of the settlement agreement. In response to appellees’ argument, appellants simply contend that this claim has been waived. See Pa. R.A.P., Rule 302(a), 42 Pa.C.S.A. (providing that issues not raised in the lower court are waived and cannot be raised for the first time on appeal).

Contrary to appellants’ suggestion, appellees argument cannot be considered waived. The trial court sustained their objections and did not draft an opinion explaining its rationale in support of reversal until after an appeal had been filed. Because the ruling was initially favorable to appellees, they would have had no reason to file either a timely motion for reconsideration or an independent appeal. Thus, there was no stage of the lower court proceedings at which appellees could have challenged the trial court’s rationale. For this reason, we find that strict compliance with the prohibition relating to matters raised for the first time on appeal is inappropriate under these particular circumstances. See Cagnoli v. Bonnell, 531 Pa. 199, -, 611 A.2d 1194, 1195-96 (1992) (excusing an appellant’s failure to raise an issue prior to filing her motion for reconsideration in the trial court where appellant’s counsel did not have an opportunity to research and prepare cogent arguments in response to motions which were presented on the morning of trial). See also Pa.R.A.P., Rule 105(a), 42 Pa.C.S.A. (providing that the appellate procedural rules shall be liberally construed to secure the just, speedy and inexpensive determination of every matter to which they are applicable and that the rules, under certain circumstances may be disregarded in the interests of justice or for other good cause).

Although appellees’ have not waived their claim, we nevertheless find their reasoning to be partially in error. The settlement agreement does not provide that Arizona law is to govern any subsequent actions for contribution or indemnity which appellants may have had against appellees. Instead, the settlement agreement merely provides that its terms are to be construed in accordance with Arizona law. To the extent that this provision does purport to dictate the law to be applied in any subsequent action for contribution or indemnity, we note that appellees were not parties to the settlement agreement and the choice of law provision could not be enforced against them. Thus, the question of whether appellants could maintain an action in Pennsylvania for indemnification is not dependent upon any interpretation of Arizona law or the settlement agreement; rather, appellants’ right to recover contribution or indemnity must be evaluated in accordance with Pennsylvania law.

Despite appellees’ erroneous suggestion that appellants’ claim must be evaluated in accordance with Arizona law, we agree with appellees that the trial court’s reasoning was inaccurate. As explained above, the trial court appeared to conclude that it had a duty to give full effect to the provisions of the settlement agreement and that this mandate could not be fulfilled unless appellants were permitted to maintain an action for indemnification. See Trial Court Opinion, supra.

Contrary to the trial court’s conclusion, dismissal of appellants’ indemnification action for failure to state a claim upon which relief could be granted is not to be equated with a refusal to give full effect to the terms of the settlement agreement. Appellants’ ability to recover contribution and/or indemnity is completely independent of and unrelated to the enforcement of the settlement agreement. In this case, appellants’ voluntarily settled with the Garseds, and in doing so, appeared to operate under the mistaken belief that they would be successful in recovering a portion of the settlement from appellees. Appellants’ mistaken assumptions regarding their ability to maintain a cause of action for contribution and/or indemnity, do not negate or otherwise affect the terms of the settlement agreement or appellants’ responsibilities thereunder.

More importantly, appellants could only have reserved whatever claims for contribution and/or indemnity which may have existed in the jurisdiction in which such actions ultimately would be commenced against appellees. In this case, we have determined that Pennsylvania law does not permit appellants to recover indemnification from appellees. Appellants’ attempt to reserve a right to indemnification in the settlement agreement does not change this result. As observed by our Supreme Court, “claiming to reserve a right will not operate to create [that] right.” Walton v. Avco, 530 Pa. at 582, 610 A.2d at 461. We therefore reject the trial court’s suggestion that the settlement agreement would be rendered meaningless if appellants’ were precluded from maintaining an indemnity action against appellees.

Order affirmed.

      . This agreement was executed in Arizona and provides that it is to be construed in accordance with Arizona law. This provision is not binding on appellees, who were not parties to the agreement, and Arizona law has no application to these proceedings.

      . However, the agreement does not expressly state that the Garseds’ released appellees or that appellees' liability was extinguished.

      . The trial court granted appellees’ preliminary objections and dismissed the complaint. Upon further reflection, however, the trial court concluded that it erred and has drafted an opinion explaining why its prior decision should be reversed.

      . Because the acts of appellants and appellees are severable as to time and because each allegedly breached a different duty of care owed to Mr. Garsed, appellants and appellees are not joint tortfeasors. See, e.g., Harka v. Nabati, 337 Pa.Super. 617, 622-623, 487 A.2d 432, 435 (1985); Voyles v. Corwin, 295 Pa.Super. 126, 130-131, 441 A.2d 381, 382 (1982); Lasprogata v. Qualls, 263 Pa.Super. 174, 179, 397 A.2d 803, 805 (1979) (all of which hold that an original wrongdoer and a physician who aggravates the existing injury or causes new injury are not joint tortfeasors).

      . In Lasprogata v. Qualls, this court suggested that an original wrongdoer may have the right of indemnity against the treating physician if the original tortfeasor is held liable for damages resulting from both his negligence and that of the physician. Id., 263 Pa.Super. at 178 n. 2, 397 A.2d at 805 n. 2. This statement is dicta and was completely unnecessary and irrelevant to the disposition of the issues before the court. In any event, the statement is erroneous as it conflicts with both prior and subsequent Supreme Court precedent which definitively indicates that an actively negligent tortfeasor is not entitled to indemnity. See Vattimo v. Lower Bucks Hospital, Inc. and Builders Supply Co. v. McCabe, supra.

      . We note that virtually identical issues were raised by the physicians in Harka v. Nabati and Voyles v. Corwin. Thus, these decisions are similarly distinguishable from this case.

      . The principles enunciated in Embrey have, in effect, been incorporated into Pennsylvania’s Comparative Negligence Statute, codified at 42 Pa.C.S.A. § 7102(b), which provides for the apportionment of liability among each of the defendants against whom a plaintiff has recovered.

      . Although the California court indicated in Herrero and Niles that the original tortfeasors were entitled to indemnity from the medical providers, it appears that the court actually allowed equitable apportionment of the injuries between the original and subsequent wrongdoers since both had been sued by the injured plaintiffs. See Herrero v. Atkinson, 227 Cal.App.2d at 75, 38 Cal.Rptr. at 493-494; Niles v. City of San Rafael, 42 Cal.App.3d at 240, 116 Cal.Rptr. at 738. To this extent, the reasoning in Herrero and Niles is more closely analogous to the apportionment recognized in Embrey and the Restatement (Second) of Torts § 434 (1965).

      . Wilson is unique in that Rhode Island does not adhere to the rule set forth in § 457 of the Restatement (Second) of Torts, discussed ante, at 375. Wilson, 560 A.2d at 340. Rhode Island considers subsequent medical malpractice to be an independent intervening cause. Id. Thus, an initial tortfeasor is not liable for additional harm caused by subsequent medical malpractice but is only held responsible for the injury caused by his or her own negligence.

      . The District of Columbia has not enacted any provisions relating to comparative negligence or contribution among tortfeasors. Thus, common law principles continue to be applied therein. It is also noted that several of the jurisdictions either adopted comparative negligence or enacted their respective statutes before the decisions permitting equitable indemnity or subrogation were issued. Decisions arising in these jurisdictions primarily cited to existing authority without discussion or consideration of the impact that subsequently enacted comparative negligence statutes had thereon. Other cases, however, merely adopted a new theory without reference or discussion of their own comparative negligence statutes or cases. In the absence of such analysis, we do not find these authorities to be persuasive.

      . Appellees appeared to raise additional grounds in support of their preliminary objections in the nature of a demurrer in a reply memorandum of law which they filed in response to appellants’ memorandum in support of their opposition to appellees’ objections.

      . The Reply Memorandum contains a handwritten notation which appears as follows: “Moot when rec’d (9/30) Order entered on 9/25”. The notation is followed by the initials "AWS”, the initials of the trial judge who ruled upon the objections.


author: JOHNSON, Judge: FORD ELLIOTT, Judge,

text:
    615 A.2d 382
    Theresa McCASKILL and Theresa McCaskill, Administratrix of the Estate of Baby Boy McCaskill, Deceased and Theresa McCaskill & Charles R. Rone, Jr., in Their Own Right as Parents and Natural Guardians of Baby Boy McCaskill, Deceased, Appellants, v. PHILADELPHIA HOUSING AUTHORITY, Pennsylvania Municipal Corporation and City of Philadelphia and Philadelphia Electric Company, a Pennsylvania Corporation and Philadelphia Facilities Management Corporation, a Pennsylvania Corp. d/b/a Philadelphia Gas Works and Philadelphia Gas Works, a Business Entity.
    Superior Court of Pennsylvania.
    Submitted June 25, 1992.
    Filed Oct. 21, 1992.

      Alan I. Lourie, Asst. Public Defender, Philadelphia, for appellants.
    Susan L. Claypoole, Medford, New Jersey, for appellees.
    Before JOHNSON, FORD ELLIOTT and HOFFMAN, JJ.
   JOHNSON, Judge:

Theresa McCaskill appeals the grant of preliminary objections in the nature of a demurrer in favor of the Philadelphia Housing Authority (PHA). We affirm.

McCaskill asserts two issues for our review: (1) whether a wrongful death and survival action can be maintained on behalf of a fetus which spontaneously aborted at seventeen weeks of gestational age and (2) whether an action for loss of consortium can be maintained by McCaskill, as a parent, for the loss of the fetus. We hold that no cause of action exists under the law of this Commonwealth which permits recovery under the Wrongful Death and Survival Acts for the loss of a non-viable fetus, nor do we recognize an action in loss of consortium for the parents of a non-viable fetus.

McCaskill was a resident of an apartment leased by the PHA to her sister Crystal McCaskill located at 2610 North 11th Street, Philadelphia. On May 14, 1989, a portion of that apartment building collapsed, which McCaskill alleges caused her to suffer severe and permanent injuries and, further, caused her to suffer the spontaneous abortion of a fetus of seventeen weeks gestation.

McCaskill filed a Complaint on June 17,1991, against PHA, the City of Philadelphia, The Philadelphia Electric Company, and Philadelphia Gas Works seeking to recover on four counts. In Count I, McCaskill maintained that she suffered personal injuries, and property damage. In Count II, McCaskill alleged the wrongful death of her unborn child pursuant to 42 Pa.C.S. § 8301. In Count III, McCaskill asserted a survival action under 42 Pa.C.S. § 8302. Count IV alleged a claim for loss of consortium of the unborn child. PHA filed preliminary objections to McCaskiirs complaint. Thereafter, McCaskill filed an Amended Complaint to which PHA renewed its preliminary objections. On October 9, 1991, the trial court sustained PHA’s preliminary objections and dismissed Counts II, III, and IV of McCaskiirs amended complaint, including all claims for loss of consortium. McCaskill filed a petition for reconsideration pertaining to the claims alleged against PHA, which the trial court denied. McCaskill now appeals the October 9, 1991 order of the trial court.

Our standard of review when addressing the propriety of the grant of a preliminary objection in the nature of a demurrer is well-established. A preliminary objection in the nature of a demurrer admits every well-pleaded fact in the complaint and all inferences reasonably deducible therefrom. Composition Roofers Local 30/30B v. Katz, 398 Pa.Super. 564, 581 A.2d 607 (1990). It tests the legal sufficiency of the complaint as failing to set forth a cause of action upon which relief can be granted under any theory of law. Sutton v. Miller, 405 Pa.Super. 213, 592 A.2d 83 (1991). A preliminary objection in the nature of a demurrer may only be sustained where the complaint is clearly insufficient to establish the pleader’s right to relief. McGregor v. Mediq, Inc., 395 Pa.Super. 221, 576 A.2d 1123 (1990).

It is in light of this standard that we will address the claims put forth by McCaskill. First, McCaskill alleges that the law of this Commonwealth recognizes a valid cause of action for a non-viable fetus under the Wrongful Death and Survival Acts, 42 Pa.C.S. § 8301 and § 8302. We disagree.

McCaskill relies on Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085 (1985), as controlling on this issue. This reliance is misplaced. In Amadio, our supreme court held that survival and wrongful death actions may be pursued by the estates of stillborn infants for fatal injuries received while viable children en ventre sa mere. Id., 509 Pa. at 203, 501 A.2d at 1086-1087. There, the court recognized a cause of action by the parents of a stillborn full-term infant. Id. As the fetus in that case had been viable, the issue of whether a cause of action may be sustained on behalf of a non-viable fetus was not before the court in Amadio.

This issue has, however, been addressed by this Court. In Hudak v. Georgy, 390 Pa.Super. 14, 567 A.2d 1095 (1989), appeal granted, 525 Pa. 600, 575 A.2d 566 (1990), we held that the Wrongful Death and Survival Acts did not create a cause of action for non-viable fetuses. There, the appellants attempted to bring a wrongful death and survival action on behalf of non-viable triplet sixteen week fetuses which died shortly after their premature birth. We found that in the absence of clearly expressed legislative or supreme court authority, we could not accord non-viable fetuses the same rights, under the Wrongful Death and Survival Acts, as children who had attained viability. Id.

In Coveleski v. Bubnis, 391 Pa.Super. 409, 571 A.2d 433 (1990), appeal granted, 525 Pa. 656, 582 A.2d 323 (1990), we were faced with a proposed wrongful death and survival action on behalf of a fetus of eight weeks gestational age. In that case, we aligned our holding with Hudak and the majority of jurisdictions and limited wrongful death and survival actions on behalf of the unborn only to those brought on behalf of viable fetuses. Id. 391 Pa.Super. at 414, 571 A.2d at 435. There, we stated that before viability any determination of damages for death of a fetus would be entirely speculative. Id.

In the present case, the fetus was in the seventeenth week of gestation at the time that the events in question occurred. While McCaskill, in her amended complaint, alleged that the fetus was “viable or possibly viable,” the trial court found McCaskill’s allegations of viability to be unsupportable. Viability is that stage of prenatal development at which the fetus would be capable of independent existence if removed from its mother’s womb. Coveleski, 391 Pa.Super. at 413, 571 A.2d at 435. The United States Supreme Court recently held that viability now occurs at 23 or 24 weeks of gestation. Planned Parenthood v. Casey, 505 U.S. -, -, 112 S.Ct 2791, 2810-11, 120 L.Ed.2d 674 (1992). See also Webster v. Reproductive Health Services, 492 U.S. 490, 515, 109 S.Ct. 3040, 3055, 106 L.Ed.2d 410, 434 (1989). The legal conclusion that viability occurs at 23-24 weeks is well supported in the medical literature. See e.g. Hack, M., and Fanaroff, A., Outcomes of Extremely Low Birth Weight Infants, 321 New Eng.J.Med. 1642 (1989); Gerdes, et al., Improved Survival and Short-term Outcome of Inborn “Micropremies”, 25 Clinical Pediatrics 391, 393 (1986); Pleasure, et al, What is the Lower Limit for Viability ? 138 Am.J.Dis.Child. 783 (1984).

McCaskill, on appeal, rather than continuing to assert that the fetus was viable, contends that “the life of each human being begins at conception” and urges this court to adopt the holding of the Supreme Court of Rhode Island in Presley v. Newport Hospital, 117 R.I. 177, 365 A.2d 748 (1976). See Brief for Appellant at 10-11. The state of Rhode Island distinguished itself, in Presley, as the only state in the Union to recognize a cause of action in wrongful death for fetuses at any stage of gestational development. Id. We decline to accept McCaskilTs invitation to disregard the precedential authority of this jurisdiction. Therefore, we hold that the trial court properly found that the fetus in question was not viable and that no cause of action may be maintained in wrongful death and survival on behalf of a non-viable fetus.

We now turn to the second issue presented in this appeal: whether parents of a fetus can maintain a cause of action for the loss of consortium of their potential child. While McCaskill recognizes that claims for the loss of filial consortium have never been recognized in this jurisdiction, she urges this Court to abandon the established common-law and grant her recovery on this claim. We decline to do so.

In Quinn v. City of Pittsburgh, 243 Pa. 521, 90 A. 353 (1914), our supreme court stated that claims for loss of consortium are limited to spouses and do not extend to the loss of a child’s consortium. This rule has remained undisturbed as the law of this jurisdiction. See e.g. Schroeder v. Ear, Nose and Throat Assoc., 383 Pa.Super. 440, 557 A.2d 21 (1989), appeal denied, 523 Pa. 650, 567 A.2d 653 (1989); Brower by Brower v. City of Philadelphia, 124 Pa.Cmwlth. 586, 557 A.2d 48 (1989), appeal denied, 525 Pa. 604, 575 A.2d 569 (1990).

In Schroeder, the appellants were the parents of a fetus which was aborted during the course of medical treatment for the mother. There, holding that the appellants had put forth no cause of action we stated:

We conclude that because there is no constitutional mandate compelling us to recognize a cause of action for loss of filial consortium, because there is presently no legal basis for allowing the cause of action, because there is no general or growing consensus that such a cause of action should be established, and because to allow such a cause of action is a policy determination which can most thoroughly and representatively be considered by the legislature, we do not recognize a parent’s cause of action for loss of a child’s consortium due to tortious interference of a third party.

Id., 124 Pa.Cmwlth. at 444-445, 557 A.2d at 23, paraphrasing Steiner by Steiner v. Bell Telephone Co., 358 Pa.Super. 505, 522, 517 A.2d 1348, 1357 (1986), aff'd, 518 Pa. 57, 540 A.2d 266 (1988).

As an intermediate appellate court, we will not recognize this cause of action where there is clear and binding precedent to the contrary. Quinn, supra. We, therefore, hold that the trial court properly sustained the preliminary objections by the Philadelphia Housing Authority, and dismissed McCaskill’s claim for the loss of filial consortium.

Accordingly, for the foregoing reasons, we affirm the order of the trial court.

Order Affirmed.

FORD ELLIOTT, J., files a dissenting statement.

FORD ELLIOTT, Judge,

dissenting:

I respectfully dissent to the majority’s decision in two respects. Initially, I believe under the authority of 42 Pa. C.S.A. § 762 and 42 Pa.C.S. § 8541-8564, jurisdiction over this appeal more properly rests in Commonwealth Court. In Battle v. Philadelphia Housing Authority, 406 Pa.Super. 578, 594 A.2d 769 (1991), this court determined that the PHA was in fact a local agency covered by the provisions of the Political Subdivision Tort Claims Act. This court has previously determined that Commonwealth Court is vested with exclusive jurisdiction over an appeal involving parties under the Act. In Brady v. West Manchester Township Sewer Authority, 338 Pa.Super. 144, 487 A.2d 894 (1985), transferred to 97 Pa.Cmwlth. 31, 508 A.2d 1287 (1986), allocatur denied, 514 Pa. 649, 524 A.2d 495 (1987), we stated at footnote 1:

Subsection 762(a)(7) of the Judicial Code was amended on December 20, 1982 pursuant to P.L. 1409, No. 326, art. II, § 201, effective in 60 days. The prior language of subsection 762(a)(7) is as follows:
§ 762. Appeals from court of common pleas
(a) General rule. Except as provided in subsection (b), the Commonwealth Court shall have exclusive jurisdiction of appeal from final orders of the courts of common pleas in the following cases:
(7) Immunity waiver matters. Matters in which immunity has been waived pursuant to Subchapter C of Chapter 85 (relating to actions against local parties).
A reading of the above cited prior language of subsection 762(a)(7) reveals that it was much narrower than the present language. Under the prior language the local agency immunity under the Political Subdivision Tort Claims Act, 42 Pa.C.S. 8541, et seq., would have to be waived before the appellate jurisdiction of the Commonwealth [C]ourt would be invoked. However, under the present language all that is necessary is that a local agency be sued in tort which then invokes Commonwealth Court’s appellate jurisdiction since the case will be governed by the provisions of the Tort Claims Act. Thus, the Commonwealth Court’s appellate jurisdiction in tort actions in which at least one party is a local agency is now exclusive.

Although I recognize that from time to time in cases of concurrent appellate jurisdiction various panels of this court have not transferred such appeals sua sponte citing either the failure of a party to raise the issue, Wilson v. School District of Philadelphia, 410 Pa.Super. 416, 600 A.2d 210 (1991), and Flaxman v. Burnett, 393 Pa.Super. 520, 574 A.2d 1061 (1990), or the interests of judicial economy, Brady, supra, I cannot agree that such policies serve the best interests of the parties or the ends of justice. I believe that in cases where the general assembly has reserved specifically exclusive jurisdiction over a class of appeals to the Commonwealth Court, such transfers should not be discretionary and this court should defer to this legislative determination.

I dissent to the majority’s resolution of this case on the merits as well. Although in doing so I recognize that the precedent cited by the majority in the Hudak, supra, and Coveleski, supra, decisions quite rightly support the result reached. For my part, I concur in the views expressed by my colleague Judge Olszewski in his Dissenting Opinion in Coveleski. Upon a thorough reading of Amadio, supra, I cannot find that the supreme court established viability as the point in time when a cause of action may arise for the death of a fetus. I believe Judge Olszewski’s interpretation of the holding in Amadio more correctly reflects what was intended by the supreme court.


author: DEL SOLE, Judge:

text:
    615 A.2d 386
    COMMONWEALTH of Pennsylvania v. Roy DEER, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 17, 1992.
    Filed Oct. 21, 1992.

      William C. Kaczynski, Pittsburgh, for appellant.
    Kevin F. McCarthy, Asst. Dist. Atty., Pittsburgh, for Com.
    Before WIEAND, DEL SOLE and HESTER, JJ.
   DEL SOLE, Judge:

Appellant was convicted in a non-jury proceeding of one count of theft of services in violation of 18 Pa.C.S.A. § 3926. The charge was based upon the Commonwealth’s allegation that Appellant unlawfully obtained natural gas from the Equitable Gas Company at his place of business by means of an illegal tap. Following the imposition of sentence which ordered Appellant to serve a period of probation for three years and directed that he pay court costs and restitution in the amount of $11,000, he filed this appeal.

The challenges made on appeal are to the sufficiency of the evidence offered in support of Appellant’s conviction, and to the evidence elicited in support of the court’s conclusion regarding the amount of gas diverted to the premises. Appellant also claims that the statutory presumption found in 18 Pa.C.S.A. 3926(d)(1) should be declared unconstitutional.

We begin by addressing the constitutional claim made by Appellant. The statutory inference in question provides:

(d) Inference from using nonmetered utility service.— Any person having possession of or access to the location of a public utility meter or service measuring device which has been avoided or tampered with so as to inhibit or prevent the accurate measurement of utility service and who enjoys the use of or receives the benefit from the public utility service intended to be metered or measured by the public utility meter or measuring device so avoided or tampered with may be reasonably inferred to have acted to avoid or tamper with the public utility meter or measuring device with the intent to obtain the public utility service without making full compensation therefor.

18 Pa.C.S.A. 3926(d).

Appellants seeks a declaration that this statute is unconstitutional because, he contends, it allows a trial court to substitute proof of his guilt with a presumption. In support of his claim Appellant cites to a Court of Common Pleas decision from Centre County, Commonwealth v. Larocca, 25 Pa.D. & C.3d 620 (1981). Therein the defendant was charged with improperly obtaining electrical service by tampering with an electrical meter which serviced an apartment in State College rented by the defendant and three other persons. On two occasions a meter reader found the electric meter turned upside down, causing it to run backward reducing the recorded usage of electrical service. Because the defendant was the listed subscriber for the electrical service, the Commonwealth sought to rely on the statutory inference to establish the defendant’s guilt of theft of services. The court refused to allow the inference to apply to the defendant based upon his status as a subscriber. The court stated “we feel that the statutory inference ignores the quasi-contractual duty of the ‘roommates’ to defendant, and the reality that they too benefit from the inaccurate measurement of the utility usage.” Id. at 624. Because the court found that the statute did not recognize that others who benefitted from the service may be responsible for the theft, it ruled that the statutory inference is “irrational” and “arbitrary.” Id.

Unlike the court in Larocca we conclude that the statute does recognize that more that one person may be the beneficiary of service. The statute simply allows an inference where such a beneficiary has access to a meter which was tampered with to prevent accurate measurement. The fact that others may also benefit will allow this inference to apply equally to them. It remains, however, the Commonwealth’s responsibility after application of the inference to establish beyond a reasonable doubt that the defendant committed the theft. See Commonwealth v. Gallagher, 400 Pa.Super. 71, 582 A.2d 1349 (1990) (where the defendant only lived at a residence where utility service was tampered with intermittently and up to ten others lived there during the relevant time, there was insufficient evidence to sustain a conviction of theft of services.) The absence of proof may render a conviction unconstitutional, but the inference itself, sanctioned by statute, is not.

An inference has been defined as “no more than a logical tool enabling the trier of fact to proceed from one fact to another.” Commonwealth v. Wojdak, 502 Pa. 359, 466 A.2d 991 (1983) citing Commonwealth v. Shaffer, 447 Pa. 91, 105, 288 A.2d 727, 735 (1972) cert. denied, 409 U.S. 867, 93 S.Ct. 164, 34 L.Ed.2d 116 (1972). Where the inferred fact is “more likely than not to flow from the proved fact on which it is made to depend” the evidentiary inference will pass constitutional scrutiny. Id. We find that the inference challenged in the present case is able to meet the “more likely than not” standard. Where an individual has access to or possession of a measuring device, and the device has been shown to have been tampered with so as to inhibit or prevent the accurate measurement of utility service, and where this same individual enjoys the use or receives the benefit of the utility service which has been interrupted, then it is “more likely than not” that this individual tampered with the measuring device with the intent of obtaining service without making full compensation for it.

In cases where the sole evidence of guilt or an element of the offense is inferential, “then the inferred fact must follow beyond a reasonable doubt from the proved facts.” Commonwealth v. Jones, 242 Pa.Super. 471, 364 A.2d 368, 372 (1976). In other cases, the inference is but one piece of circumstantial evidence designed to prove guilt. “The focus of our inquiry then becomes, as always, whether the totality of the evidence, together with all reasonable inferences, is sufficient in law to prove the defendant’s guilt beyond a reasonable doubt.” Id. With respect to the inference to be drawn from the possession of recently stolen goods it has been stated:

“[N]one of [the cases] holds that it is unconstitutional to infer from possession of stolen goods that the possessor knew they were stolen. Rather, ... a conviction either based upon that inference alone, or reached without due regard to evidence of surrounding circumstances, cannot stand, because it is based on less than proof beyond a reasonable doubt. Such a conviction must be reversed, because proof beyond a reasonable doubt is a requirement of due process. Thus, the inference that the possessor of recently stolen goods knew they were stolen is not an ‘unconstitutional’ inference ...; rather it is an inference that, if misused, will in certain cases lead to an unconstitutional result.”

Id., quoting Commonwealth v. Simmons, 233 Pa.Super. 547, 556-557, 336 A.2d 624, 629 (1975).

With this background we turn to an examination of the evidénce offered in this case and view it in a light most favorable to the Commonwealth. The property in question was owned by an individual who resides in Florida. It was leased to a Susan McLean who in turn in the early 1980’s leased the property exclusively to Appellant, who under the terms of the lease was responsible for all utility payments associated with the building. Electrical service for the subject premises was initiated in May of 1982 in the name of Roy Deer, Inc. and remained in service until October 1989. A Duquesne Light employee testified that very little electricity was used at the subject premises from the turnon date until October of 1984. From that time until 1987 electricity usage increased substantially and peaked seasonally, which was consistent with the use of a furnace or seasonal heating equipment. Despite the evidence of electrical use consistent with the heating of a building, an Equitable Gas employee testified that in 1983 gas service to the property was terminated. The meter was turned off, taken out and a plug was put in the pipe. There was testimony that the defendant used the building for storage during the years of 1982 through 1987. In 1985 the building was used for the detailing of automobiles and later for a towing business, which was subsequently transferred to an adjacent building. The names of these businesses associated with the subject property were Roy Deer’s Auto Body and Roy Deer, Inc.

Beginning on November 19, 1987 Equitable Gas began a surveillance of the building and on three separate occasions gas vapors emanating from a flue were observed. After acquiring Mrs. Deer’s authorization for an inspection on December 3, 1987, employees of Equitable Gas discovered on the premises two large overhead gas furnaces, one which was in operation at the time. The thermostat was set at 90 degrees, but the actual temperature inside was approximately 72 degrees. No meter was discovered but the inspection disclosed an unauthorized connection into a main gas line directly in front of the building. The connection was approximately 25 feet in length and it was necessary to use a backhoe to excavate it approximately 3 feet below ground surface. A separate gas line had also been installed inside the premises to carry the gas to the furnace, which line was visible to those having access to the inside of the building. Also found installed inside the building was an unvented regulator. Testimony indicated that regulators are usually installed outside of a building for safety reasons.

With respect to this evidence the trial court noted that it is true that no witness saw appellant tamper with the bypass. However in view of the fact that he was in exclusive control of the premises, operated a business there, negotiated the terms of the lease, expanded his operations to an adjacent property and was present at the premises regularly, the court determined that this evidence and the statutory inference supported Appellant’s conviction. We agree with the trial court’s assessment that the facts offered by the Commonwealth prove Appellant engaged in an elaborate scheme to procure natural gas illegally. In reviewing the sufficiency of the evidence the standard test is “equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt.” Commonwealth v. Gallagher, 400 Pa.Super. 71, 74, 582 A.2d 1349, 1350 (1990), citing Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988). We find that sufficient evidence existed in this case.

We also conclude that the trial court had ample evidence on which to base its finding that approximately $11,000 worth of gas was diverted throughout the relevant years. In addition to the testimony regarding increased electrical usage during winter months consistent with the use of a blower on a gas furnace, the Commonwealth offered expert testimony from a development engineer employed by Equitable gas. He stated that his calculations of usage took into consideration a number of factors including the size of the building, type of construction, amount of insulation, number of windows, number of doors, average winter temperatures and the size of the furnace found working on the premises during the inspection. His calculations were also premised upon an estimate of heating the building at 70 degrees, which he considered a typical office temperature. Utilizing the estimate volume of gas consumed throughout the relevant period and the price of gas, the witness calculated the monetary value of such usage.

The trial court as factfinder was responsible for evaluating the credibility of the Commonwealth’s witnesses. Commonwealth v. Curry, 318 Pa.Super. 490, 465 A.2d 660, 662 (1983). In accepting their testimony the court was presented with ample proof on which to base a conclusion as to the value of the diverted utility service. Finding no abuse of discretion or error of law, we affirm Appellant’s convictions and Judgment of Sentence. .

Judgment of Sentence affirmed.