author: ROWLEY, Judge:

text:
    495 A.2d 938
    Al’Grie JOHNSON, Appellant v. TRAVELERS INSURANCE COMPANY. Carol KISS, Appellant v. The TRAVELERS INSURANCE COMPANY. Gwendolyn Lola PAULHILL, Appellant, v. PENNSYLVANIA ASSIGNED CLAIMS PLAN and Travelers Insurance Company. Kenneth ANDRE, Appellant, v. ESIS, INC. Martin J. ADDARAIO, Appellant, v. The TRAVELERS INSURANCE COMPANY, as Designee of Pennsylvania Assigned Claims Plan. Clarence JOHNSON, Appellant, v. The TRAVELERS INSURANCE COMPANY and Larry Samuel. Joan WAINWRIGHT, Appellant, v. The TRAVELERS INSURANCE COMPANY. Herbert PETTAWAY, Appellant, v. The TRAVELERS INSURANCE COMPANY. Perry STEWART and Daniel Watson, Appellants, v. The TRAVELERS INSURANCE COMPANY. Salvatore GUINTA, Appellant, v. INSURANCE COMPANY OF NORTH AMERICA and Esis, Inc. Julia CLARK, Appellant, v. The TRAVELERS INSURANCE COMPANY. Paul C.F. SPRINGER, Appellant, v. The TRAVELERS INSURANCE COMPANY, as Designee of the Pennsylvania Assigned Claims Plan. George BOBB, Appellant, v. TRAVELERS INSURANCE COMPANY and Pennsylvania Assigned Claims Plan. Michael T.A. LAWLOR, Appellant, v. The TRAVELERS INSURANCE COMPANY. Rosemary RUGGIERI, Appellant, v. PENNSYLVANIA ASSIGNED CLAIMS PLAN and Travelers Insurance Company.
    Superior Court of Pennsylvania.
    Argued and Submitted March 4, 1985.
    Filed June 7, 1985.
    Reargument Denied Aug. 5, 1985, in No. 566 (Lawlor).
    Petition for Allowance of Appeal Denied Oct. 31, 1985.

      Charles W. Craven, Philadelphia, for appellee at 566PHL84.
    George F. Schoener, Jr., Philadelphia, for appellant at 566PHL84.
    Joseph P. Grimes, Philadelphia, for appellant at 846PHL84.
    John J. Branigan, Philadelphia, for appellant at 3009PHL83.
    Michael C. Rainone, Philadelphia, for appellant at 3199PHL83.

      Neal Cohen, Philadelphia, for appellant at 3254PHL83. Susan B. Bolno, Philadelphia, for appellant at 3394PHL83.
    Arnold H. Winicov, Philadelphia, for appellants at 159 and 679PHL84.
    Michael S. Durst, Philadelphia, for appellant at 170PHL84.
    Brian D. Rosenthal, Philadelphia, for appellants at 284 and 283PHL84.
    Neil Hoffman, Philadelphia, for appellant at 424PHL84.
    Gary A. Devito, Philadelphia, for appellant at 509PHL84.
    Ronald A. Kovler, Philadelphia, for appellant at 571PHL84.
    Allen L. Feingold, Philadelphia, for appellant at 769PHL84.
    David M. McCormick, Philadelphia, for appellees.
    Before ROWLEY, WATKINS and GEISZ, JJ.

       Judge John A. Geisz, Senior Judge of the court of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   OPINION OF THE COURT

ROWLEY, Judge:

The issue presented in each of the fifteen above-captioned appeals is whether an uninsured owner-operator of a motor vehicle who sustains injuries in an accident with another allegedly negligent uninsured motorist may recover uninsured motorist benefits from an assigned claims plan insurer under the Pennsylvania No-Fault Motor Vehicle Insurance Act (No-Fault Act). 40 P.S. §§ 1009.101-1009.701. We have carefully reviewed the provisions and underlying purposes of the No-Fault and Uninsured Motorist Acts, recent decisions by our courts, and the arguments advanced by the parties to these appeals. We conclude that an owner of a motor vehicle who fails to obtain insurance in accordance with the No-Fault Act, and then sustains injuries while operating that vehicle on Pennsylvania’s highways, is not entitled to recover uninsured motorist benefits from an assigned claims plan insurer.

The following essential facts are common to the cases that have been consolidated for decision: 1) each appellant was the owner of a motor vehicle and had failed to provide insurance covering that motor vehicle as required by the No-Fault Act for its legal operation on the public highways of this Commonwealth, 40 P.S. § 1009.104(a); 2) each appellant operated his or her motor vehicle on the highways of this Commonwealth despite the fact that no security existed covering that vehicle as required by law; 3) while operating his or her motor vehicle, each appellant was involved in an accident with another motorist in which the appellant sustained injuries; 4) the other motorist involved in each accident was either uninsured or the motorist fled the scene immediately thereafter and was not identified.

Under these circumstances, the injuries sustained by the appellants were not covered by any applicable motor vehicle insurance policy providing for payment of basic loss benefits under the No-Fault Act. Thus, in each case, the appellant submitted a claim for basic loss and uninsured motorist benefits to the Pennsylvania Assigned Claims Plan pursuant to 40 P.S. § 1009.108 of the No-Fault Act. Under the Plan, each claim was assigned to a participating insurer and in many cases, the assigned insurer paid the applicable No-Fault basic loss benefits to the appellant. However, in each case, the appellant’s claim for uninsured motorist benefits was denied and the appellant then filed an action against the assigned insurer seeking recovery of uninsured motorist benefits.

In each case, the appellant asserted that he or she was not at fault for the accident and that the assigned insurer was required to pay uninsured motorist benefits on the basis of our Supreme Court’s decision in Tubner v. State Farm Mutual Automobile Insurance Company, 496 Pa. 215, 436 A.2d 621 (1981). Although the procedural posture varied, in each case, the trial court either: 1) sustained preliminary objections filed by the insurer and dismissed the appellant’s complaint seeking uninsured motorist benefits; or 2) granted a motion for summary judgment in favor of the insurer on the issue of uninsured motorist benefits. These appeals followed.

Appellants’ sole contention on appeal is that they are entitled to recover uninsured motorist benefits from the assigned claims plan insurer despite their status as uninsured owner-operators of motor vehicles at the time of the accidents which resulted in their injuries. We find that such a result is neither mandated by the express language of the No-Fault Act, nor was it intended by the legislature.

The avowed purpose of the legislature in enacting the No-Fault Act was twofold: to establish a “statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors of deceased victims” and to establish that system “at a reasonable cost to the purchaser of insurance”. 40 P.S. § 1009.102. Basic loss benefits compensate the victim for net loss sustained by him or her, exclusive of damage to property. In addition to providing for basic loss benefits in accordance with the No-Fault Act, every automobile policy issued in Pennsylvania must include uninsured motorist coverage pursuant to the provisions of the Uninsured Motorist Act, 40 P.S. § 2000, and Insurance Department Regulations, 31 Pa.Code § 66.1-104(a) Uninsured motorist benefits provide protection for insured persons who are injured by owners or operators of uninsured motor vehicles. 40 P.S. § 2000(a).

In situations where there is no insurance applicable to a motor vehicle accident, an accident victim may obtain basic loss benefits through the assigned claims plan, set forth in Section 108 of the No-Fault Act. 40 P.S. § 1009.108. Under the Plan, claims for No-Fault benefits are assigned to participating insurers and thereafter “[t]he assignee has rights and obligations as if he had issued a policy of basic loss insurance ...” 40 P.S. § 1009.108(b). The Plan does not expressly provide for recovery of uninsured motorist benefits. However, the right to recover such benefits under the Plan has been recognized under certain limited circumstances.

In Tubner v. State Farm Mutual Automobile Insurance Co., supra, a passenger in an uninsured automobile sustained fatal injuries in a motor vehicle accident. The victim did not own a motor vehicle and there was no other applicable insurance coverage. The designated insurer under the assigned claims plan paid basic loss benefits but refused payment of uninsured motorist benefits, and the decedent’s estate then brought suit against the assigned insurer to recover those benefits. The Supreme Court held that under these circumstances an accident victim who is a passenger in an uninsured automobile is entitled to recover uninsured motorist benefits from the assigned claims plan insurer. The Court stated:

Because assigned insurers are obligated precisely as if they had issued basic loss insurance policies, and because every policy of basic loss insurance issued in Pennsylvania must include uninsured motorist coverage, [31 Pa. Code § 66.1-104(2)] the right to uninsured motorist benefits under the assigned claims plan follows a fortiori from a straightforward reading of the statute and the regulation lawfully promulgated thereunder.
Any other interpretation of appellee’s statutory rights under the assigned claims plan would frustrate the Legislature’s intention, expressed in Section 102 of this remedial legislation, to provide maximum feasible restoration to all accident victims in a comprehensive, fair, and uniform manner. Adoption of State Farm’s view would have the discriminatory effect of affording recovery of general damages to all motor vehicle accident victims injured by uninsured motorists except those covered by the assigned claims plan, and thus would perpetuate many of the harsh results of the outdated fault system by denying general damages to innocent victims of irresponsible drivers. (Footnotes omitted.)

Id., 496 Pa. at 219-20, 486 A.2d at 623.

Appellants herein urge that they are entitled to payment of uninsured motorist benefits under the holding in Tubner because they are “innocent victims” who did not cause the accidents resulting in their injuries. Appellants assert that the No-Fault Act was intended to provide maximum feasible restoration to all accident victims, and neither the terms of the Act or the language in Tubner make a distinction between accident victims who have obtained insurance and those who have not. On the contrary, we find that affording uninsured motorist coverage to uninsured owner-operators of motor vehicles under the assigned claims plan would be in contravention of both the provisions of the No-Fault Act and the rationale underlying the decision in Tubner.

Section 104(a) of the No-Fault Act requires that every owner of a motor vehicle registered or operated in Pennsylvania must provide security covering that vehicle. 40 P.S. § 1009.104(a). Section 601 of the No-Fault Act provides:

Any owner of a passenger vehicle, for which the existence of security for basic loss benefits and tort liability insurance is a requirement for its legal operation upon the public highways of this State, under either section 104 or 110 of this act or sections 418, 419 or 420, act of April 29, 1959 (P.L. 58, No. 32), known as the Vehicle Code, who operates such motor vehicle or permits it to be operated upon a public highway in this State without having in full force and effect security complying with the terms of section 104 is guilty of a misdemeanor. And any other person who operates such a motor vehicle upon a public highway in this Commonwealth with the knowledge that the owner does not have such security in full force and effect is guilty of a misdemeanor. And each person convicted of a misdemeanor under the terms of this section may be fined not less than one hundred dollars ($100) or more than five hundred dollars ($500) or may be imprisoned for not more than six months or both. (Footnotes omitted.)

40 P.S. § 1009.601. Tubner involved a passenger in an uninsured motor vehicle who did not even own an automobile and, thus, was not required to obtain automobile insurance. The holding in Tubner is consistent with the legislature’s intent to provide maximum feasible restoration to all individuals injured on Pennsylvania’s highways through a comprehensive and fair system. 40 P.S. § 1009.108(b); Tubner v. State Farm Mutual Automobile Insurance Company, 496 Pa. at 218, 436 A.2d at 622. Refusing uninsured motorist coverage under the assigned claims plan to the victim in Tubner would penalize that person because he happened to have been injured by a financially irresponsible driver. Moreover, affording uninsured motorist coverage to an injured passenger who does not own an automobile is in accordance with the terms of the Uninsured Motorist Act, which was designed to give monetary protection to persons who, while lawfully traveling on Pennsylvania’s highways, suffer injuries through the negligent use of those highways by others. 40 P.S. § 2000; Boyle v. State Farm Mutual Automobile Insurance Company, 310 Pa. Super. 10, 456 A.2d 156 (1983).

These same considerations, however, do not support extending the Tubner decision to afford uninsured motorist protection under the assigned claims plan to appellants herein. Although appellants may not have been “at fault” in driving their vehicles or in causing the accidents which resulted in their injuries, in each case, the appellant was operating his or her vehicle in violation of the express provisions of the No-Fault Act. Unlike the decedent in Tubner, appellants are financially irresponsible drivers who seek to recover uninsured motorist benefits under the terms of a statute with which they carelessly failed to comply. Hence, the holding in Tubner does not control the outcome of the cases now before us. Moreover, our review of other provisions of the No-Fault Act demonstrates that the legislature intended to differentiate between the rights afforded to injured, uninsured owner-operators and the rights afforded to other accident victims.

Although the No-Fault Act partially abolished tort liability for injuries arising out of the maintenance or use of a motor vehicle up to a statutorily mandated threshold, 40 P.S. § 1009.301, the Act specifically provides that the owner of a motor vehicle involved in an accident shall remain liable if that vehicle was not properly insured. 40 P.S. § 1009.-301(a)(1). More importantly, Section 501 of the No-Fault Act provides:

The obligor obligated to pay basic loss benefits for accidental bodily injury to a person occupying a motor vehicle, the owner of which is uninsured pursuant to this act or to the spouse or relative resident in the household of the owner or registrant of such motor vehicle, shall be entitled to recover all the benefits paid and appropriate loss or adjustments costs incurred from the owner or registrant of such motor vehicle or from his estate. The failure of the person to make payment within thirty days shall be grounds for suspension or revocation of his motor vehicle registration and operator's license.

40 P.S. § 1009.501.

In Harleysville Mutual Insurance Company v. Schuck, 302 Pa.Super. 534, 449 A.2d 45 (1982), this Court held that an insurer who has paid basic loss benefits to an uninsured owner-occupant of a motor vehicle pursuant to the assigned claims plan may recover those payments in an action filed against the owner under Section 501. The Court observed that Section 501 clearly directs that an uninsured owner bears the ultimate risk of loss when an uninsured motorist claim is submitted under the assigned claims plan. The Court stated:

While such an interpretation of Section 501 may appear, at first blush, to take away benefits granted by another part of the Act, we are constrained to conclude that the only construction consistent with the intended purpose of the no-fault scheme is one which uniformly places the ultimate risk of loss upon the uninsured owner.
The effect of a contrary interpretation would be to permit the owner/operator of an uninsured motor vehicle to benefit permanently from a law whose requirements he or she deliberately chose to disobey.
* * # * sis #
It would be incongruous to allow an uninsured owner who also happens to be an occupant of his or her uninsured vehicle to receive permanently those benefits which insured owners attain by purchasing the insurance coverage mandated by the statute. Similarly, it is nonsensical to allow an uninsured owner/occupant to escape liability which has been unequivocally established for uninsured owners and to which he or she would be required to respond if the occupant were another person.

Id., 302 Pa.Superior Ct. at 538, 449 A.2d at 46-47.

Therefore, although an uninsured owner-operator would be entitled to recover basic loss benefits under the assigned claims plan, the ultimate risk of loss would remain with the uninsured owner. The rationale behind this rule is to provide prompt and comprehensive medical treatment in order to effectuate rehabilitation and a timely return to society as a productive member; only then would a determination of ultimate liability be made. Id., 302 Pa.Superior Ct. at 538-39, 449 A.2d at 47.

The language of Section 501, and the construction placed on that section by our court, support our conclusion that an owner of a motor vehicle bears the risk of loss which is normally covered by uninsured motorist protection when he chooses to drive that vehicle without bothering to obtain the necessary insurance. There is no rationale for requiring the assigned insurer to pay uninsured motorist benefits in the first instance under these circumstances. Unlike basic loss benefits, uninsured motorist benefits are not necessarily related to medical treatment and rehabilitation. Since passage of the No-Fault Act, uninsured motorist benefits are sought to compensate an accident victim for those damages suffered which are not covered by No-Fault benefits, for example, pain and suffering. See Tucci v. State Farm Insurance Company, 503 Pa. 447, 469 A.2d 1025 (1983); Brader v. Nationwide Mutual Insurance Company, 270 Pa.Super. 265, 411 A.2d 516 (1979). Uninsured motorist benefits were created to protect innocent insured victims from negligent motorists who drive their vehicles without obtaining insurance. Under Tubner that protection has been extended to innocent passengers and pedestrians who are injured in accidents with uninsured motorists through the assigned claims plan. We cannot perceive that in enacting the No-Fault Act the legislature intended to extend uninsured motorist protection to the very class of persons whose financially irresponsible conduct was the cause for creation of statutorily mandated uninsured motorist coverage.

Uninsured owner-operators of motor vehicles should not be guaranteed the same benefits afforded to motorists who obtain the mandated insurance coverage. If such protection is made available to uninsured owner-operators who do not pay premiums, insurers’ rising costs would necessitate increased insurance rates to the disadvantage of responsible drivers who purchase insurance policies. See Ostronic v. Insurance Company of North America, 314 Pa.Super. 146, 156, 460 A.2d 808, 813 (1983). Such a holding would discourage motor vehicle owners from insuring their vehicles and would run contrary to the legislature’s intent to create a uniform, fair and low cost system of insurance.

Appellants urge that they are entitled to such coverage because they were not negligent in the operation of their vehicles. Some appellants rely on language in Modesta v. South Eastern Pennsylvania Transportation Authority, 503 Pa. 437, 469 A.2d 1019 (1983), wherein our Supreme Court held that uninsured occupants of self-insured vehicles are entitled to receive uninsured motorist benefits. The relevant portion of the opinion reads as follows:

[Ujntil today there were two groups of individuals who received no uninsured motorist protection: uninsured motorists who caused accidents, and uninsured occupants of self-insured vehicles. It is reasonable to deny uninsured motorist coverage to the first group, since they have not only chosen not to comply with the mandatory insurance law, but have also caused the accidents which resulted in their injuries; ...

Id., 503 Pa. at 443, 469 A.2d at 1022-1023. Insofar as the quoted language implies that uninsured motorist protection is available to uninsured owner-operators of motor vehicles who do not cause the accidents resulting in their injuries, it is dicta, since that question was not before the court in Modesta. Moreover, we hold that a finding of fault on the part of an uninsured owner-operator is not a prerequisite to denying uninsured motorist benefits under the assigned claims plan. Appellants may not have caused the accidents resulting in their injuries, but that does not excuse the fact that they operated their vehicles on Pennsylvania’s highways with the knowledge that they had not obtained insurance. Under these circumstances, it is clear that appellants bore the risk that they might suffer injuries for which they had no insurance protection. Any other holding would place a burden on insurers that was not intended by the legislature and would allow appellants to profit despite their violation of the Legislative mandate.

Accordingly, the Orders sustaining preliminary objections and dismissing appellants’ complaints are affirmed. The Judgments entered in favor of the insurers following the grant of motions for Summary Judgment are likewise affirmed.

      . The question presented is phrased as if every case involved an accident between two uninsured motorists. However, in at least four cases, (Appeal Numbers: 566 Philadelphia, 1984; 846 Philadelphia, 1984; 3254 Philadelphia, 1983; 3199 Philadelphia, 1983), the record reveals that appellants were involved in accidents with another allegedly negligent motorist who immediately fled the scene. Thus, although it is impossible to determine whether the other motorist was insured, the practical result is that no basic loss insurance applies to the injury resulting from the accident. In such a case, the question presented is the same, that is, whether the injured uninsured motorist is entitled to recover uninsured motorist benefits under the assigned claims plan.

      . In ten cases, appellant’s claim for basic loss benefits was paid by the assigned insurer (Appeal Numbers: 3009 Philadelphia, 1983; 2199 Philadelphia, 1983; 3254 Philadelphia, 1983; 3394 Philadelphia, 1983; 5401 Philadelphia, 1983; 170 Philadelphia, 1984; 283 Philadelphia, 1984; 284 Philadelphia, 1984; 509 Philadelphia, 1984; and 846 Philadelphia, 1984). In four other cases, it is unclear whether basic loss benefits were paid to appellants (Appeal Numbers: 159 Philadelphia, 1984; 571 Philadelphia, 1984; 679 Philadelphia, 1984; and 769 Philadelphia, 1984). In one case, appellant withdrew his claim for basic loss benefits (Appeal Number: 566 Philadelphia, 1984).

      . Although each case presents the same question, there are a number of procedural differences among them. Appellants at Appeal numbers 3394 Philadelphia, 1983 and 566 Philadelphia, 1984 initiated actions at the arbitration level which resulted in awards in their favor of $10,000 and $15,000, respectively, against the designated insurer. In both cases, the insurer appealed to the Court of Common Pleas. At the trial court level, appellants’ claims for uninsured motorist benefits were eventually dismissed.
      In the case at Appeal number 3009 Philadelphia, 1983, appellant also instituted suit against the other uninsured motorist involved in the accident which resulted in a judgment in favor of appellant in the amount of $17,000. That judgment remained unsatisfied at the time briefs were submitted to this Court.
      In the case at Appeal number 679 Philadelphia, 1984, appellant’s suit against the other uninsured motorist was still pending at the time that briefs were submitted to this Court.

      . In the cases at Appeal numbers 3254 Philadelphia, 1983, 3394 Philadelphia, 1983, 170 Philadelphia, 1984 and 283 Philadelphia, 1984, the assigned insurer-defendant counterclaimed against appellants for reimbursement of basic loss benefits already paid pursuant to 40 P.S. § 1009.501 of the No-Fault Act. In each of these cases, the trial court not only granted the insurer's motion for summary judgment on the issue of uninsured motorist benefits, but also entered judgment in favor of the insurer on the counterclaim. The only issue raised on appeal from these judgments, however, is whether appellants are entitled to uninsured motorist benefits.
      Similarly, in the cases at Appeal numbers 5401 Philadelphia, 1983, 509 Philadelphia, 1984, and 846 Philadelphia, 1984, the assigned insurer-defendant counterclaimed against appellants for reimbursement of basic loss benefits already tendered. However, the trial court’s orders in those cases resolved only the issue regarding appellants' entitlement to uninsured motorist benefits.

      . Section 103 of the No-Fault Act defines basic loss benefits as follows:
      ‘Basic loss benefits' means benefits provided in accordance with this act for the net loss sustained by a victim, subject to any applicable limitations, exclusions, deductibles, waiting periods, disqualifications, or other terms and conditions provided or authorized in accordance with this act. Basic loss benefits do not include benefits for damage to property. Nor do basic loss benefits include benefits for net loss sustained by an operator or passenger of a motorcycle.

        40 P.S. § 1009.103. Basic loss benefits include allowable expenses (as defined in Section 103), work loss, replacement services losses and survivors losses. 40 P.S. § 1009.202.

      . The Uninsured Motorist Act provides, in pertinent part:
      (a) No motor vehicle liability policy of insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State, unless coverage is provided therein or supplemental thereto in limits for bodily injury or death as are fixed from time to time by the General Assembly ... under provisions approved by the Insurance Commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom.
      40 P.S. § 2000(a).
      The No-Fault Act was enacted eleven years after passage of the Uninsured Motorist Act. There is no explicit reference to the Uninsured Motorist Act in the No-Fault Act. Nonetheless, both statutes deal with compensation for losses from injuries occurring in connection with motor vehicles and the obligation of motor vehicle owners to obtain insurance, as well as the obligations of motor vehicle insurers who issue policies in Pennsylvania. Thus, if possible, the two Acts are to be construed together. 1 Pa.Cons.Stat. § 1932. See Tucci v. State Farm Insurance Company, 503 Pa. 447, 469 A.2d 1025 (1983), for a discussion of the interrelationship between the two Acts.

      . The participating insurers in the Plan consist of all insurance companies who provide basic loss insurance in Pennsylvania. 40 P.S. § 1009.108(b).

      . In Hayes v. Erie Insurance Exchange, 261 Pa.Super. 171, 395 A.2d 1370 (1978), our court held that an uninsured owner of a motor vehicle who parked her vehicle and was struck while walking across an intersection was entitled to recover basic loss benefits from the insurer of the vehicle which struck her. See also, Singer v. Nationwide Insurance Company, 274 Pa.Super. 359, 418 A.2d 446 (1980) [uninsured owner of motor vehicle who was injured while a passenger in an insured automobile was entitled to recover basic loss benefits from the automobile’s insurer under 40 P.S. § 1009.204(a)(3) ]. Some of the appellants herein rely on Hayes and Singer to the effect that the failure to obtain No-Fault insurance coverage does not preclude the recovery of benefits under the No-Fault Act. These cases are easily distinguishable from the instant cases. Hayes and Singer involved situations where there was an insurance policy applicable to cover the losses sustained by the uninsured motorist. Claims were made under the policy for basic loss benefits rather than uninsured motorist benefits. Finally, plaintiffs in Hayes and Singer were not operating their vehicles at the time of the accidents that resulted in their injuries.

        . Nevertheless, in Ostronic v. Insurance Company of North America, 314 Pa.Super. 146, 460 A.2d 808 (1983), this Court held that the estate of an uninsured deceased owner-operator is not entitled to recover basic loss benefits from an assigned claims plan insurer. The Ostronic court held that the legislature did not intend that the assigned risk obligor would be required to pay benefits to the estate of an uninsured deceased owner-driver, which benefits would then be immediately recoverable by the obligor. The Court observed that the rationale for requiring payment of basic loss benefits to a living uninsured motorist, enunciated in Harleysville Mutual Insurance Company v. Schuck, supra, did not exist in a situation where the uninsured owner is deceased. The Court stated:
      It is evident that the Appellants urge a position which would enable the estates of irresponsible vehicle owners to profit through wrongdoing by the decedent. This result could never have been intended by our legislators in the passage of the No-fault Act.
      The situation of a deceased uninsured owner is obviously different from that of a living one with regard to the question of whether an initial payment of benefits should be made by the assigned risk insurer.
      ******
      In the situation of a deceased victim, the justification of speeding treatment and rehabilitation simply does not apply. We can perceive no other legislative intent in the Act to support a rule requiring payment to an uninsured deceased owner's estate in such a case, with undeserved enrichment for the estate and unrecoverable losses by the assigned risk insurer being the probable results in such circumstances. (Footnotes omitted.)

        Id., 314 Pa.Superior Ct. at 156-157, 460 A.2d at 813-814.


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    495 A.2d 946
    Victoria J. FERRARO and Anthony J. Ferraro, Her Father, Appellants, v. Surinder SINGH.
    Superior Court of Pennsylvania.
    Argued March 6, 1985.
    Filed July 5, 1985.

      Barbara J. Shah, Bethel Park, for appellants.
    Larry A. Housholder, Beaver Falls, for appellee.
    Before BROSKY, WIEAND and LEDERER, JJ.

       Honorable William J. Lederer, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   BROSKY, Judge:

It is said that “hell hath no fury like a woman scorned.” The appellant who was, figuratively, left standing at the altar, now wishes to recover for damages arising out of a broken promise to marry. While we are sympathetic with her plight, she is doomed to be disappointed in the law as well as in love. The harsh requirements of statutory law do not permit us to afford her any relief.

Appellant contends that the Heart Balm Act does not bar recovery of sums expended in reliance on a broken promise to marry; nor does it bar recovery for emotional distress. This appeal is from an order dismissing this civil case on preliminary objections. The first count sought reimbursement for expenditures made in anticipation of the wedding of the parties. The second count sought damages in tort for the intentional infliction of emotional distress. We hold that the trial court correctly decided the issue and, accordingly, affirm.

Appellant Victoria A. Ferraro and Surinder Singh, appel-lee, met through a dating service in March, 1982, and, after approximately six months, set a wedding date in October 1983. In her complaint, appellant averred that in reliance upon this agreement to marry each other, she paid non-refundable deposits for the wedding music, photographer, reception hall and a custom-made wedding dress. Subsequently, in December, 1982, appellee returned to his native country, India, for the alleged purpose of having an elaborate wedding suit made for himself. Appellant further stated that appellee concealed his whereabouts and intentions from her from December, 1982 through March, 1983; that, in fact, he did not communicate at all with her during that period; and that in March appellant was informed by an employee at appellee’s place of work that appellee had married another woman in India.

Appellant then brought this action against appellee for reimbursement of wedding-related expenditures and to recover damages for emotional distress suffered as a result of appellee’s conduct. To say that she was furious is putting it mildly — and rightfully so. Appellee filed preliminary objections in the nature of a demurrer. The trial court sustained those objections and dismissed both counts of appellant’s complaint.

Appellant’s main contention is that the Heart Balm Act does not bar recovery of sums expended in reliance on an unfulfilled promise to marry. The trial court held otherwise. In relevant part the Act provides: “All causes of action for breach of contract to marry are hereby abolished....” 48 P.S. § 171.

In clear and unambiguous language, the Act prohibits any cause of action arising out of the breach of the promise to marry another. Its simple mandate admits of no specious distinctions. Thus, it is not significant that damages are nominally sought for expenditures made in contemplation of the wedding ceremony and not for the breach of the marriage promise as such. The forsaken promise to marry caused the non-occurrence of the wedding celebration which occasioned the alleged damages. Regardless of how the damages are labelled, the gist of the cause of action is the breach of the contract to marry.

Appellant cites the Pennsylvania Supreme Court case of Pavlicic v. Vogtsberger, 390 Pa. 502, 136 A.2d 127 (1957), to support her position that the Act does not bar her action for expenditures made in anticipation of the wedding. The court in Pavlicic stated:

The abolition is confined to actions for breach of contract to marry, that is, the actual fracture of the wedding contract.
It thus follows that a breach of any contract which is not the actual contract for marriage itself, no matter how closely associated with the proposed marriage, is actionable.

Id., 390 Pa. at 511, 136 A.2d 131-2.

For two reasons, Pavlicic does not mandate appellant obtaining a reversal. First, appellant has not alleged that any contract other than the contract to marry was entered into by the parties. She does not, for example, allege that they had entered into a contract providing that appellee would assume responsibility for the purported expenditures — deposits for wedding expenses. In the absence of any such second contract, the damages can only arise from the breach of the promise to marry; and that cause of action is statutorily barred.

Second, while the above-quoted language is rather broad, it has been applied only to conditional gifts. See generally, In re Marriage of Heinzman, 40 Colo.App. 262, 579 P.2d 638 (1978), aff’d., 198 Colo. 36, 596 P.2d 61 (1979); 38 Am.Jur.2d, Gifts §§ 83-6; and 46 ALR3d Courtship Presents — Right to Recover § 7.

The conceptual basis of a cause of action based on the right to return of gifts made on the condition of subsequent marriage was explained in Ruehling v. Hornung, 98 Pa.Super. 535 (1930), subsequently endorsed in Stanger v. Epler, 382 Pa. 411, 115 A.2d 197 (1955). The law of conditional gifts creates a cause of action distinct from breach of promise to marry suits. Its recognition in the common law is based upon an implied condition theory. A gift given in contemplation of marriage, such as an engagement ring, was not final but conditioned upon the occurrence of the wedding. As such, it was subject to being returned to the donor upon the failure of the condition subsequent.

Appellant did not aver that the expenditures in question constituted gifts from appellant to appellee in contemplation of marriage which, because the implied condition was not met, are to be returned.

Since appellant did not plead the existence of a gift contract, or of any other contract independent of the contract to marry, her case does not come under the rule in Pavlicic and the unambiguously worded statute bars her cause of action.

Assuming, arguendo, that the plain phrasing of the Act did not bar recovery here, public policy considerations in interpreting the statute would also bar recovery. The Connecticut case of Piccininni v. Hajus, 180 Conn. 369, 429 A.2d 886 (1980), interpreting their Heart Balm Act, contains language which is pertinent here.

In our view, the Act was designed to do away with excessive claims for damages, claims coercive by their very nature and, all too frequently, fraudulent in character; the purpose was to prevent the recovery of damages based upon confused feelings, sentimental bruises, blighted affections, wounded pride, mental anguish and social humiliation; for impairment of health, for expenditures made in anticipation of the wedding, for the deprivation of other opportunities to marry and for the loss of the pecuniary and social advantages which the marriage offered.

Id. at 373, 429 A.2d at 888 (emphasis added).

Two of the three enumerated purposes of the Heart Balm Act would not appear to apply here: there is no reason to conclude that appellant was seeking excessive damages or that her claim was fraudulent. However, the third purpose, “to do away with claims ... coercive by their very nature” is directly applicable.

Justice Musmanno expounded on this in Pavlicic.
The legislation was made necessary because of the widespread abuse of the vehicle of a breach of promise suit to compel overly-apprehensive and naive defendants into making settlements in order to avoid the embarrassing and lurid notoriety which accompanied litigation of that character. The legislation was intended to ward off injustices and incongruities which often occurred when, by the mere filing of breach of promise suits innocent defendants became unregenerate scoundrels and tarnished plaintiffs became paragons of lofty sensibility and moral impeccability. It was not unusual in threatened breach of promise suits that the defendant preferred to buy his peace through a monetary settlement rather than be vindicated by a trial which might leave his good name in shreds.

Pavlicic, supra, 390 Pa. at 508-9, 136 A.2d at 130.

It may well be that since 1957, when Pavlicic was written, our sensibilities in this area have become more sophisticated and, consequently, the coercive potential has diminished. Nonetheless, this statutory purpose retains sufficient vitality for us to stop our interpretive search short of finding that the statute allows recovery of expenditures made in anticipation of the wedding. The plain meaning of the statute will be given effect.

Additionally, our research has not disclosed a single case in this country where damages of this type were awarded. Together with the wording of the statute and the policy considerations mentioned above, this leads to the firm conclusion that it would be misguided for us to break new ground and allow this claim.

Count two of appellant’s complaint seeks compensation for her emotional distress caused by appellee’s concealment of his whereabouts and intentions from appellant for a three-month period. As a result, appellant claims to have suffered from apprehension, anxiety and mental anguish; and as a consequence thereof became ill and was unable to properly perform her job.

She argues on appeal that her cause of action is based not on the breach of the promise to marry, but on his lack of communication with her.

Unfortunately, it is clear that her distress is so intertwined with the dissipation of her fiancee’s affections and the resulting dissolution of the marriage promise that this claim is also barred by the statute. Appellant cannot evade the force and effect of the statute by bringing an action in tort for emotional distress grounded in behavior resulting in the breach of the contract to marry. See A.B. v. C.D., 36 F.Supp. 85 (E.D.Pa.1940).

Appellee’s prevailing in this matter is by no means a reflection of our approbation of his conduct. However, the law does not provide a remedy for every wrong; some wrongs are simply not legally cognizable wrongs. The “arrows of outrageous fortune” sometimes come from Cupid’s bow, but the law does not provide a shield from them and their consequences.

Order affirmed.

      . "Heaven has no rage like love to hatred turned. Nor Hell a fury like a woman scorned.” William Congreve, "The Mourning Bride,” Act III, Sc. 8. No doubt, this characteristic is also shared by males, but, sad to state, not by the appellee in this case.

      . Act of June 22, 1935, P.L. 450, 48 P.S. § 171 et seq.

      . "Who wooed in haste and means to repent at leisure.” William Shakespeare, “The Taming of the Shrew.” Art. Ill, Sc. 2.

      . "We shall find no fiend in hell can match the fury of a disappointed woman.” Colley Cibbs, "Love’s Last Shift,” Act IV.

      . Connecticut’s Heart Balm Act is substantially the same as Pennsylvania’s.

      . Indeed, the only case which mentions this type of damages is Piccininni, supra, which in dicta, states that they are barred by the Act.

      . This is demonstrated by the absurd situation one would have to posit in order to have the emotional distress cause of action distinct from the breach of the contract to marry: after appellee’s absence he returns, they get married, and appellant then brings suit for emotional distress based on his earlier absence.


author: POPOVICH, Judge:

text:
    495 A.2d 950
    Mollie DASH & Harry Dash H/W, Appellants, v. WILAP CORPORATION and John Rightly.
    Superior Court of Pennsylvania.
    Argued March 25, 1985.
    Filed July 5, 1985.

      Gary Tilles, Philadelphia, for appellants.
    Leslie A. Miller, Philadelphia, for appellees.
    Before BECK, POPOVICH and TROMMER, JJ.

       Judge Evelyn M. Trommer, Senior Judge of the Court of Common Pleas of Philadelphia County, is sitting by designation.

   POPOVICH, Judge:

This is an appeal by the plaintiffs (Harry Dash and Mollie Dash, Husband/Wife) from the order of the Court of Common Pleas of Philadelphia County (per Judge DiBona) granting the defendant’s (Wilap Corp.’s) petition to discontinue its joinder of and cause of action against John Rightly, the additional defendant. We affirm and modify.

On May 7, 1982, the plaintiffs filed a praecipe with the prothonotary for the issuance of a summons in trespass against the defendant. Service by the sheriff was made on May 14, and was followed by the filing of a praecipe by the defendant for a rule to file a complaint upon the plaintiffs on June 17. Thereafter, on July 2, a 3-count complaint in trespass was filed in which the plaintiffs averred that the defendant owned ninety (90) acres of undeveloped land, a portion of which abutted the plaintiffs’ property and was not maintained for a period of at least four (4) years prior to May of 1980 “to the peril, danger, harm, disgust and annoyance of the plaintiffs in the habitation of their home.” In particular, the plaintiffs alleged that the “unkept” acreage resulted in the creation of an unreasonably dangerous condition (“nuisance”) utilized by criminals “for purposes of concealment, safe cover, refuge and as a haven in the commission of crimes against persons and properties in proximity to the ... Wilap Tract, one of which is the Dash property.” The plaintiffs went on to aver:

7. Directly as a result of the conditions heretofore described, on May 22, 1980, one John Rightly, wearing blue jeans, t-shirt and a stocking mask over his face, and illegally carrying a Browning 9 millimeter revolver was dropped off from an automobile near the Wilap Tract, entered and walked through the Wilap Tract under concealment, and undetected and reached the Dash property abutting same.
8. Thereupon, John Rightly forcibly entered the Dash residence wherein plaintiff, Mollie Dash, was home alone. When Mrs. Dash sought to flee the residence she was brutally attacked and beaten by John Rightly, who repeatedly struck Mrs. Dash with the aforementioned firearm on the head and upper body, inflicting severe and serious injuries.
9. After beating Mollie Dash, John Rightly seized valuable personal belongings of the plaintiffs and left their residence. John Rightly stealthy returned to his auto through the Wilap Tract which because of the conditions above described [, i.e., debris, high grass, unkept and untrimmed weeds and hedges, and other objectionable vegetation ... remain[ed] on the Wilap Tract, so as to] conceal[], hid[e] and protect[] the assailment [sic] as he made his get-away.

The remaining portions of the complaint recounted the injuries sustained, the cost incurred and the pain endured by the plaintiff Mollie Dash. Also, each plaintiff asked for monies attributable to compensatory ($20,000.00) and punitive ($500,000.00) damages, in addition to a claimed loss of personal property (in the amount of $32,000.00) by virtue of the theft by John Rightly.

On September 7, 1982, the defendant filed a complaint against John Rightly, who by that time had been incarcerated for the Dash burglary and assault. Defendant averred that the additional defendant was the sole cause of the injuries and damages claimed by the plaintiffs. Thus, it prayed that the court find the additional defendant solely liable or jointly and severally liable to the plaintiffs with the defendant, or liable over to the defendant by way of indemnification.

Also, on the date just stated, the defendant filed an answer denying all of the plaintiffs’ allegations, as well as new matter asserting the additional defendant’s sole liability to the plaintiffs and the barring or limiting effect of 42 Pa.C.S.A. § 7102 on the plaintiffs’ cause of action.

On September 15, 1982, the plaintiffs filed a reply to defendant’s new matter denying that John Rightly was the “sole cause” of the injuries and damages or that Mollie Dash contributed in any way to her injuries or damages.

On July 26, 1984, the defendant filed a petition to discontinue its complaint against the additional defendant John Rightly, and, also, have him dropped from the record as a defendant in the suit involving the Dashes and Wilap Corporation. It sought such relief on the basis that the plaintiffs never amended their complaint in trespass so as to name Rightly as a party to the litigation. Further, in its “Memorandum of Law in Support of Petition to Discontinue Action and Drop a Party”, the defendant argued that since the plaintiffs’ complaint alleged negligence on its part in the maintenance of its land, it did not see, regardless of what the outcome might be, how John Rightly was relevant to such a determination. Thus, it continued, only when John Rightly was removed would “the parties in interest [be] free to litigate the central issues of this case — whether Petitioner was negligent in maintaining its land, and whether this alleged negligence is in any way related to the injuries claimed by Plaintiffs.”

On August 12, 1984, the plaintiffs filed a reply admitting their inaction. However, they contended that there was no legal necessity for them to act since the defendant’s joinder action “created the legal situation the same as if Mr. Rightly had been sued initially.” Additionally, the plaintiffs contended that Rightly was a necessary party to the suit whose removal would permanently prejudice their case. Thus, they sought either the denial of the defendant’s petition, or, in the alternative, allowance on their part to join Rightly as a defendant nunc pro tunc.

Also, in a Memorandum of Law in support of their reply to the defendant’s petition, the plaintiffs conceded the joinder of Rightly as an additional defendant by the original defendant, but urged, in reliance upon Pa.R.Civ.P. 2255(b), that they had “the same rights they would have had if they had sued such additional defendant directly . . . .” Consequently, they claimed to be “the only party” who could discontinue the action as to the additional defendant.

Further, the plaintiffs considered Rightly to be a necessary party since, in a statement allegedly made to the District Attorney of Delaware County, he admitted that “he assaulted Mollie Dash and stated he used the wild conditions existing upon Petitioner’s tract of land as cover in order to gain access to the Dash property.” Therefore, the plaintiffs argued the incurrence of “extreme prejudice and inconvenience” if the defendant’s petition were granted. See Pa.R.Civ.P. 229(c). However, if such action were taken, the plaintiffs again asked for the opportunity to file a complaint joining Rightly as a defendant nunc pro tunc.

By order of court, the plaintiffs’ requested relief was denied. This appeal followed.

Before addressing the merits of the plaintiffs’ arguments, we need to assure ourselves, regardless of the parties’ acquiescence on the matter, that the order appealed is a final one. T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977); McGee v. Singley, 382 Pa. 18, 114 A.2d 141 (1955); Turner v. May Corp., 285 Pa.Super. 241, 427 A.2d 203 (1981).

In this jurisdiction, it is axiomatic that “ ‘ * * * an appeal will lie only from a definitive order, decree or judgment which finally determines the action. In order to constitute a final order, decree or judgment, the order must terminate the litigation between the parties to the suit by precluding a party from further action in that court.’ ” Peterson v. Philadelphia Suburban Transportation Co., 435 Pa. 232, 238, 255 A.2d 577, 581 (1969), quoting Middleberg v. Middleberg, 427 Pa. 114, 115, 233 A.2d 889, 890 (1967). Moreover, the dismissal of a complaint as to one defendant in a multi-defendant suit is a final appealable order. See United States National Bank in Johnstown v. Johnson, 506 Pa. 622, 629, 487 A.2d 809, 813 (1985). Similarly, an order is “final” if it stops a party from presenting the merits of his claim to the trial court. Marino Estate, 440 Pa. 492, 494, 269 A.2d 645, 646 (1970).

An examination of the facts reveals that although the plaintiffs are neither “out of court” nor are they es-topped from proffering their version of the personal injury suit as to Wilap Corporation, they are effectively prevented from determining their rights vis-a-vis the additional defendant. See Zakian v. Liljestrand, 438 Pa. 249, 264 A.2d 638 (1970); Rau v. Manko, 341 Pa. 17, 17 A.2d 422 (1941). Also, since scrutiny of the record evidences that, as to the plaintiffs, John Rightly can be characterized as a “party to the action” by reason of his joinder as an additional defendant by Wilap Corporation pursuant to Pa.R.Civ.P. 2252(a) & (b), see Pushnik v. Winky’s Drive-In Restaurants, Inc., 242 Pa.Super. 323, 336-337, 363 A.2d 1291, 1297-1298 (1976), the plaintiffs’ inability to have their rights determined in regard to Rightly in that litigation converts the order appealed into a final one. Our Supreme Court indicated as much in Brandywine Area Joint School Authority v. VanCor, Inc., 426 Pa. 448, 233 A.2d 240 (1967), wherein the original defendants appealed an order sustaining the preliminary objections of the additional defendants, and dismissing the additional defendant complaints against each of them.

On review, the Supreme Court in Brandywine treated the appealability of the order in the context of the plaintiffs rights in not having the appeal quashed. It did so in the following manner; to-wit:

We conclude that while an order overruling preliminary objections to an additional party’s complaint is interlocutory, an order granting such objections and dismissing the complaint is final and appealable. Although the plaintiff in the additional party’s complaint may have a further cause of action against the defendant in the additional party complaint subsequent to the resolution of the basic litigation, he is precluded in that basic litigation from determining his rights vis-a-vis the additional defendant in that litigation. We shall, therefore, deny the motion to quash.

426 Pa. at 450, 233 A.2d at 241-42. Thus, in accordance with the rationale of Brandywine, we find the order appeal-able. We may now proceed to determine the propriety of the lower court’s order granting the original defendant’s petition to discontinue its complaint against the additional defendant over the plaintiffs’ objection.

To start with, “[discontinuance of an action is always subject to the consent of the court, and it should not be permitted if prejudicial to the rights of others.” Bily v. Allegheny County Board of Property Assessment, 353 Pa. 49, 52, 44 A.2d 250, 252 (1945).

Accordingly, we need to decide whether the rights of the plaintiffs would be prejudiced if the trial court’s order were sustained.

The trial court’s order discontinuing the original defendant’s cause of action against the additional defendant Rightly was premised upon its belief that because joinder took place after the two-year statute of limitations had run, alleged injury was sustained in May of 1980 and joinder occurred in September of 1982, any claims of the plaintiffs against the additional defendant would be time-barred “even if a jury brought in a verdict finding joint liability.” We find this conclusion to be presumptive.

For example, in Sykes v. Southeastern Pennsylvania Transportation Authority, 225 Pa.Super. 69, 310 A.2d 277 (1973), a passenger sustained injuries while riding the defendant’s bus and commenced an action in assumpsit alleging that the incident was solely the result of a breach by the defendant of its express and implied warranty to transport the plaintiff safely and comfortably. The defendant filed preliminary objections claiming that the complaint did not state a cause of action and was a “spurious attempt” to avoid the two-year statute of limitations for wrongful personal injury which had already expired. The trial court sustained the objections and dismissed the plaintiff’s complaint with prejudice.

While on appeal, the plaintiff was unsuccessful in having the trial court reconsider its order or, in the alternative, to grant permission to file an amended complaint. However, the plaintiff included in the printed record to Superior Court a copy of her petition to amend. It contained a good cause of action in assumpsit for breach of a contract of a non-negligent carrier.

Albeit this Court affirmed that portion of the ruling sustaining the defendant’s demurrer, we spoke on the circumstances justifying our reversal of the trial court’s order dismissing with prejudice the plaintiff’s complaint so as to foreclose her from filing a proposed amendment. In doing so, we stated:

Apparently, the lower court put plaintiff[ ] out of court because it believed that any attempts to amend would be barred by the statute of limitations. That is probably correct so far as the proposed amended complaint produced at argument before us is concerned. Whether it be brought in assumpsit or trespass, a suit for breach of nonnegligent carriage is brought for injuries wrongfully done to the person and falls within the bar of the 2-year statute of limitations for personal injuries. Act of June 24, 1895, P.L. 236, § 2, 12 P.S. § 34.
However, the statute of limitations ... is a waivable defense. See Bellotti v. Spaeder, 433 Pa. 219, 249 A.2d 343 (1969); Smith v. Pennsylvania R.R., 304 Pa. 294, 156 A. 89 (1931). It is not a defense absolute which will be taken notice of by the court nor may it be raised by preliminary objection. Royal Oil & Gas Corp. v. Tunnelton Mining Co., 444 Pa. 105, 282 A.2d 384 (1971); Quaker City Chocolate & Confectionery Co. v. Delhi-Warnock Bldg. Ass ’n, 357 Pa. 307, 53 A.2d 597 (1947). It was thus improper for the court below to foreclose plaintiffs from making any attempts to amend at that stage of the proceedings.
Our action does not mean that the defendant may not raise the defense of the statute of limitations, but only that it must be raised in a proper pleading. As a general rule, a court will not permit an amendment introducing a new cause of action after the statute of limitations has run. Wilson v. Howard Johnson Restaurant, 421 Pa. 455, 219 A.2d 676 (1966). That rule is designed to protect a defendant from being deprived of his right to plead the statute of limitations. 22 P.L.E. Limitation of Actions § 108 (1959). Such would be the case where the original complaint was filed within the period allowed by the statute of limitations, but the amended complaint introduced a new cause of action after the statute of limitations had expired. If the amendment were allowed, the new cause of action introduced would be timely since the amended complaint relates back to the date the original complaint was filed. 3 Standard Pennsylvania Practice 681 (1952). In that situation it would be proper for the court to deny the amendment. Otherwise, the defendant would be prejudiced in not being able to plead the defense of the statute of limitations.
******
Thus, the defendant will be able to plead the defense of the statute of limitations, if it so desires, in the new matter of its answer to the amended complaint. Pa.R. C.P. No. 1030, 12 P.S. Appendix.

225 Pa.Super. at 72-74, 310 A.2d at 279-280 (Emphasis added) (Footnote omitted).

As in Sykes, we hold that the trial court here acted prematurely in ruling in advance of the action sought to be taken that the statute of limitations would preclude recovery even if an award in favor of the plaintiffs and against Rightly were entered after a trial. This comports with the position of the courts of this Commonwealth on the subject; viz.:

The statute of limitations does not divest the court of jurisdiction over either the cause of action or the parties, but is merely a procedural bar to recovery which may be waived by consent or conduct implying consent. Bellotti v. Spaeder, 433 Pa. 219, 249 A.2d 343 (1969).
Rule 1030 of the Pennsylvania Rules of Civil Procedure requires that the statute of limitations “shall” be pleaded as an affirmative defense under New Matter; otherwise, the defense is waived. Royal Oil & Gas Corporation v. Tunnelton Mining Company, 444 Pa. 105, 282 A.2d 384 (1971). It has long been our rule that unless the statute is pleaded as a defense, it is waived. Heath v. Page, 48 Pa. 130, 142 (1864).

Thompson v. Southeastern Pennsylvania Transportation Authority, 280 Pa.Super. 193, 199-200, 421 A.2d 471, 474 (1980).

Instantly, it is undisputed that Rightly has neither entered an appearance nor has he, as a result, raised any objections or defenses to his inclusion in the suit. Therefore, since Rightly has failed to act, it is not the responsibility of the trial court to act as his advocate and proffer a defense to the plaintiffs’ request to seek an amendment to their complaint. This, of necessity, dispenses with the need to review the “prejudice” aspect, if any, of the order granting the defendant’s petition to discontinue as to Rightly. In other words, the plaintiffs can achieve their objective of retaining Rightly in the lawsuit by amending their complaint. This is so because the effect of Rightly having been included in the litigation by the defendant pursuant to Pa.R.Civ.P. 2255 renders the course sought to be taken by the plaintiffs a proper one since "... the right party was in court as the result of service of process and it was merely his ... designation which was sought to be changed ....” Saracina v. Cotoia, 417 Pa. 80, 84, 208 A.2d 764, 766 (1965). This is in contrast to “[a]n amendment of the complaint, after the statute of limitations has run, to bring in a new and distinct party to the action [which] cannot be permitted.” Cianchetti v. Kaylen, 241 Pa.Super. 437, 441, 361 A.2d 842, 843 (1976) (Citations omitted) (Emphasis in original). Nor are we confronted with a' situation where a new cause of action, or a new subject-matter, or a fatal and material defect in the pleadings is sought to be corrected after the statute of limitations has become a bar. School District of Borough of Shenandoah et al. v. City of Philadelphia, 367 Pa. 180, 79 A.2d 433 (1951).

It is our conclusion that it would be consistent with the policy of this Court to grant leave to the plaintiffs to amend their complaint to reflect the proper parties to the suit and achieve the desirable effect of “disposing of litigation on the merits, if possible.” United National Insurance Co. v. M. London, Inc., 337 Pa.Super. 526, 547, 487 A.2d 385, 395 (1985).

Accordingly, the action sustaining the defendant’s petition to discontinue is affirmed, but the order dismissing the plaintiffs’ request to amend their complaint is reversed with directions that the plaintiffs be given a reasonable time within which to file their proposed amended complaint.

      . The Act of July 9, 1976, P.L. 586, No. 142, § 2, as amended, December 20, 1982, P.L. 1409, No. 326, art. II, § 201, eff. in 60 days; 42 Pa.C.S.A. § 5524(2) (Supp. 1984-85).

      . Parenthetically, we see that even if the discontinuance were not allowed, and, thus, Rightly remained as a party to the suit until trial, he would still not be denied the opportunity to raise the statute of limitations as a defense at that stage of the case. See Gagliardi v. Lynn, 446 Pa. 144, 285 A.2d 109 (1971); Cynthia H. v. Milton M., 328 Pa.Super. 332, 476 A.2d 1357 (1984). So, under either scenario Rightly could exercise his affirmative defense.

      . In response to the plaintiffs’ argument that under the Rules of Civil Procedure only they, as plaintiffs, are vested with the authority to seek a discontinuance as to a party-litigant, we observe that because the original defendant (joining party) and additional defendant Rightly (joined party) were to be considered as plaintiff and defendant, respectively, see Pa.R.Civ.P. 2255(a), the trial court acted properly under the imprimatur of Pa.R.Civ.P. 229 in acting upon Wilap Corporation’s motion to discontinue as to Rightly.


author: WATKINS, Judge:

text:
    495 A.2d 956
    COMMONWEALTH of Pennsylvania, Appellant, v. Allen HUTCHINSON.
    Superior Court of Pennsylvania.
    Argued March 20, 1985.
    Filed July 5, 1985.

      Maxine J. Stotland, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Jeffrey P. Shender, Philadelphia, for appellee.
    Before WIEAND, WATKINS and GEISZ, JJ.

       The Honorable John A. Geisz, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   WATKINS, Judge:

This is an appeal by the Commonwealth from the imposition of sentence by the Court of Common Pleas of Philadelphia County in which the Commonwealth complains that the court below abused its discretion in sentencing the defendant-appellant, Allen Hutchinson, to five (5) years probation.

The facts of this case are very important: On January 6, 1984, the defendant was tried without a jury before the Honorable Michael E. Wallace. The evidence disclosed that three-year-old Alana Jackmon and her older brother, six-year-old T.H. Stiles, were visiting their grandmother, Dolores Edwards, during the weekend of November 11, 1982. Shortly after they arrived, Mrs. Edwards’ nephew, William Jones, whom the children called Uncle Bully, took the children to his house to celebrate his son’s birthday.

On the second night of their stay, Uncle Bully was working, Alana and T.H. were sleeping in the rear bedroom. T.H. saw the defendant, who was a boarder at William Jones’ home, take his sister into the front bedroom. T.H. heard his sister’s screams and saw her lying on the bed face down with the defendant lying above her. T.H. saw the defendant put his penis in his sister’s “butt”. T.H. called to him to get off his sister. He then ran down to the kitchen for a kitchen knife and returned to the bedroom and threatened the defendant with the knife. The defendant then released Alana.

When the grandmother returned, she saw the defendant in the house and T.H. immediately told her what had happened. She immediately took Alana to Children’s Hospital. The children at this time were three and six years of age, not ages four and seven as referred to by the court below.

At the sentencing proceeding, the Assistant District Attorney advised the court that the pre-sentence report contained a victim’s statement by Alana’s family indicating that she had been seriously traumatized by the sexual assault.

Under 42 Pa.C.S.A. § 9721(b), the sentencing court must consider the sentencing guidelines and, if the court deviates from the guidelines, must provide a contemporaneous statement of reasons for the deviation. The Commonwealth may appeal, 42 Pa.C.S.A. § 9781(b), and the appellate court may vacate and remand for re-sentencing where, as here, “the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable”. 42 Pa.C.S.A. § 9781(c)(3)

The Legislature, in establishing the Pennsylvania Commission on Sentencing and empowering it to promulgate sentencing guidelines, represents the culmination of efforts in the Legislature to reform existing laws which, until this enactment, had permitted wide disparity in the sentencing of defendants charged with the same crime. The primary purpose of the legislation was explained in “Fact Sheet” of the Legislature as follows:

The purpose of Senate Bill 195 is to make criminal sentences more rational and consistant and correspond with the seriousness of the crime ...
Guidelines will make sentences more determinate — and they will reflect what the sentencing commission and the General Assembly believes is the appropriate sentence in most cases.

The guidelines channel sentencing discretion and focus appellate review which is available to both parties, on the reasonableness of deviations from the presumptively appropriate range of sentences. In sum, only in exceptional cases and for sufficient reasons may a court deviate from the guidelines

Viewed against this background, it is clear that Judge Wallace’s sentence, imposing a probationary term which was not even contemplated by the commission for the offense of involuntary deviate sexual intercourse, must be vacated and remanded for resentencing.

The crime involved here on a three-year-old child was a brutal sexual assault which included oral and anal sex which could only result in continuing trauma to this three-year-old girl. It was a horrible crime interrupted by her courageous six-year-old brother who threatened the defendant with a knife and so saved his sister from further abuse.

The defendant had no prior criminal record so the “prior record score” was zero. 204 Pa.Code § 303.7. The “offense gravity score” for involuntary deviate sexual intercourse is nine (9) while the court below mistakenly figured the “offense gravity score” to be five (5).

Pursuant to the guidelines, the mitigated minimum sentence range is, therefore, twenty-seven to thirty-six (27 to 36) months incarceration, the aggravated minimum range is sixty to seventy-five (60 to 75) months incarceration. 204 Pa.Code § 303.9(b).

The court’s basis for the probationary sentence for this horrendous crime falls short of the requirements of the guidelines. The court below ignored the requirement of the section which mandates:

In every case where the court imposes a sentence outside the sentencing guidelines adopted by the Pennsylvania Commission on Sentencing pursuant to Section 2154 ... the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines. Failure to comply shall be grounds for vacating the sentence and resentencing the defendant.

42 Pa.C.S.A. § 9721(b).

Even assuming, however, that the court meant to rely on defendant’s (1) psychological problems, (2) lack of prior criminal history and (3) a psychologist’s suggestion that the defendant was apparently not dangerous, should seek employment, and would present no reporting problems if placed on probation, these do not constitute adequate reasons for deviating from the guidelines under the circumstances of this case and, most certainly, the sentence depreciates the seriousness of the offense.

Even the mitigated “guidelines” suggest that more than at least two (2) months imprisonment is appropriate for defendant’s crimes. It follows that even if the court used the defendant’s lack of a record to deviate from the guidelines, it was an unjustifiable deviation.

We find, therefore, that the court’s failure to follow the sentencing guidelines constitutes an abuse of discretion.

Judgment of sentence is vacated and the appeal remanded for resentencing considering the guidelines. Jurisdiction relinquished.

WIEAND, J., concurs in the result.


author: HOFFMAN, Judge:

text:
    495 A.2d 959
    John CAPUTO, Jr., Individually and as Administrator of the Estate of Shelly Lynn Caputo, Deceased, Appellant, v. ALLSTATE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Oct. 11, 1984.
    Filed July 5, 1985.

      Michael Luber, Philadelphia, for appellant.
    David H. McCartney, Philadelphia, for appellee.
    Before ROWLEY, McEWEN and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the July 7, 1983 order denying appellant’s petition to set aside, vacate or modify an arbitration award and confirming the arbitration award.

The legal issue in this case is whether a Pennsylvania resident injured in a motor vehicle accident in Pennsylvania as a result of negligence of another Pennsylvania resident who has no liability insurance can stack the uninsured motorist benefits of an insurance policy which insures the vehicle in which the injured party is an occupant where that insurance policy is issued on vehicles owned by an individual who is at all times a resident of New Jersey.

(Majority Opinion of Arbitration Panel at 4). It is undisputed that Pennsylvania law would allow such stacking whereas New Jersey law would enforce a policy provision precluding stacking. For the reasons stated herein, we affirm.

The facts may be briefly summarized: On June 9, 1981, appellant, John Caputo, Jr., while operating a vehicle in which his wife was a passenger, became involved in a motor vehicle accident in Chester County, Pennsylvania, with an uninsured vehicle owned and operated by a negligent Pennsylvania resident. Appellant and his wife are also Pennsylvania residents. Appellant was injured and his wife killed. Appellant’s vehicle was owned by appellant’s father, a New Jersey resident, and insured by appellee Allstate Insurance Company under a policy issued to appellant’s father in New Jersey. This policy also covered three other motor vehicles owned by appellant’s father. Appellant had sole use of the vehicle in question, which had been given to him by his father, although legal title or ownership was never transferred to him. On April 18, 1983, an arbitration panel, in a 2-1 decision, entered an award in appellant’s favor in the amount of $15,000 in uninsured motorist benefits. The dissenting arbitrator would have given appellant $60,000, based on stacking the uninsured motorist coverages on the four vehicles owned by appellant’s father and insured by appellee. On May 18, appellant filed a petition to set aside, vacate or modify the arbitration award. On July 7, the lower court denied the petition and confirmed the arbitration award, thereby prompting this appeal.

We must initially determine whether the common law arbitration award entered below is reviewable.

Arbitration is “designed to provide an expeditious and inexpensive method of resolving disputes with the further winning attribute of helping to ease congested court calendars____” Allstate Insurance Co. v. Fioravanti, 451 Pa. 108, 116, 299 A.2d 585, 589 (1973). Consequently, judicial review of an arbitration award is severely circumscribed. It must be so; otherwise, “ ‘arbitration proceedings, instead of being a quick and easy mode of obtaining justice, would be merely an unnecessary step in the course of litigation, causing delay and expense, but settling nothing finally.’ ” Allstate Insurance Co. v. Fioravanti, supra, 451 Pa. at 114 n. 4, 299 A.2d at 589 n. 4 quoting Westinghouse Air Brake Co. Appeal, 166 Pa.Super. 91, 97, 70 A.2d 681, 684 (1950). See also: Bole v. Nationwide Insurance Co., 238 Pa.Super. 138, 141, 352 A.2d 472, 473-474 (1975), vacated on other grounds, 475 Pa. 187, 379 A.2d 1346 (1977).
“The decision of the arbitrator in a common-law arbitration is binding and cannot be attacked unless it can be shown by clear, precise and indubitable evidence that a party was denied a hearing, or that there was fraud, misconduct, corruption or other irregularity which caused the rendition of an unjust, inequitable or unconscionable award.” Smith v. Employer’s Liability Assurance Corp., Ltd., 217 Pa.Super. 31, 33-34, 268 A.2d 200, 201 (1970) (collecting cases). See also: Nationwide Mutual Insurance Co. v. Barbera, 443 Pa. 93, 95, 277 A.2d 821, 823 (1971); Friedman v. Friedman, 277 Pa.Super. 428, 431, 419 A.2d 1221, 1223 (1980); Reinhart v. State Automobile Insurance Co., 242 Pa.Super. 18, 23, 363 A.2d 1138, 1140 (1976); Owens v. Concord Mutual Insurance Co., 210 Pa.Super. 235, 239, 232 A.2d 14, 16 (1967). The arbitrators are the final judges of both law and fact, their award not being subject to reversal for a mistake of either. Runewicz v. Keystone Insurance Co., 476 Pa. 456, 461, 383 A.2d 189, 191-192 (1978); Allstate Insurance Co. v. Fioravanti, supra, 451 Pa. at 114, 299 A.2d at 588; Harwitz v. Selas Corp. of America, 406 Pa. 539, 542, 178 A.2d 617, 619 (1962); Mellon v. Travelers Insurance Co., 267 Pa.Super. 191, 195, 406 A.2d 759, 761 (1979).

Cargill v. Northwestern National Insurance Co. of Milwaukee, Wisconsin, 316 Pa.Superior Ct. 139, 142-143, 462 A.2d 833, 834-35 (1983). See also 42 Pa.C.S.A. § 7341. However, “courts might appropriately take jurisdiction of an appeal from an arbitration award based upon a provision of an insurance policy which was challenged as contrary to constitutional, legislative or administrative mandate or against public policy or unconscionable.” Gallagher v. Educator & Executive Insurers, Inc., 252 Pa.Superior Ct. 414, 418, 381 A.2d 986, 988 (1977) (en banc), citing United Services Automobile Association Appeal, 227 Pa.Superior Ct. 508, 323 A.2d 737 (1974). Accord, Adelman v. State Farm Mutual Automobile Insurance Co., 255 Pa.Superior Ct. 116, 120 n. 2, 386 A.2d 535, 537 n. 2 (1978). Here, appellant alleges that the arbitration award violates the public policy of this Commonwealth which favors compensation of victims of uninsured motorists. Thus, we find the arbitration award reviewable.

With regard to the issue on appeal, we recognize that Pennsylvania policy favors stacking of coverages; however, we do not believe that it is such a strong policy as to overwhelm the contacts which New Jersey has with the insurance policy in question. Under the “flexible conflicts methodology” approach to insurance contract cases which was set forth by our Supreme Court in Griffith v. United Airlines, Inc., 416 Pa. 1, 203 A.2d 796 (1964), the court must apply the law of the state having the most significant contacts or relationships with the particular issue. In Re Estate of Agostini, 311 Pa.Superior Ct. 233, 252, 457 A.2d 861, 871 (1983).

When doing this, it must be remembered that a mere counting of contacts is not what is involved. The weight of a particular state’s contacts must be measured on a qualitative rather than quantitative scale____ When applied to the case at bar, this means we must determine which state — Pennsylvania or Florida [here, New Jersey] —has demonstrated, by reason of its policies and their connection and relevance to the matter in dispute, a priority of interest in the application of its rule of law.

Id. In Nationwide Mutual Insurance Co. v. Walter, 290 Pa.Superior Ct. 129, 434 A.2d 164 (1981), this Court applied this interests analysis in a declaratory judgment action to determine the coverage of an automobile liability insurance policy. The policy had been issued in New Jersey to a New Jersey resident, but the accident occurred in Pennsylvania and the occupants of the car at the time of the accident were Pennsylvania residents. The insured had delivered the car to an automobile dealer in Pennsylvania so that the latter could sell the car for him. The accident occurred while the dealer and a prospective buyer were out on a demonstration ride. In holding that New Jersey law governed to invalidate a provision excluding garagemen from coverage, we reasoned:

In this contract case, the state having the most vital contacts with the policy of insurance involved was New Jersey. The policy was issued in New Jersey by the appellant [insurance company] in June, 1972, to Mr. Walter [car owner], a resident of New Jersey. It was issued for the twofold purpose of giving insurance protection to Mr. Walter and others as set forth in the policy, ánd to comply with the requirements set forth in the New Jersey Motor Vehicle Security Eesponsibility Statute, supra. No matter where Mr. Fetter [dealer] drove his car or gave consent to others to operate his vehicle, he had the right to expect that his policy conformed to New Jersey law and that the laws of New Jersey would apply in interpreting the policy. Pennsylvania had no contact with the transaction involving the insurance policy. It was by mere happenstance that the automobile was involved in an accident while located in Pennsylvania.

290 Pa.Superior Ct. at 137, 434 A.2d at 168. In Walter, this Court rejected the insurance company’s argument that Pennsylvania had the most significant contacts because the car was located in Pennsylvania when the accident occurred, the accident occurred in Pennsylvania, and both car occupants at the time of the accident were Pennsylvania residents. We stated: “Appellant overlooks the fact that these points of contact with Pennsylvania pertained to the alleged tort involved. We are concerned with the contract of insurance and as to the insurance policy New Jersey had the most significant contacts.” 290 Pa.Superior Ct. at 138, 434 A.2d at 168.

Similarly, in the instant case, we look to the contacts which each state had with the transaction involving the insurance policy in question. The policy was issued in New Jersey to a New Jersey resident, and New Jersey law permitted insurance companies to issue a policy precluding stacking of uninsured motorist coverages. The insured vehicle, although initially in New Jersey, is now located in Pennsylvania. Pennsylvania had no contacts with the transaction involving the insurance policy. Given these circumstances, we believe that New Jersey had the most significant contacts with the insurance policy which was issued in that state to comply with its laws. Therefore, we must agree with the arbitration panel’s decision that there can be no stacking of uninsured motorist coverages.

Appellant argues, however, that Pennsylvania law should govern pursuant to § 110(c)(1) of the Pennsylvania No-Fault Motor Vehicle Insurance Act (No-Fault Act), which reads:

The basic loss benefits available to any victim or to any survivor of a deceased victim shall be determined pursuant to the provisions of the state no-fault plan for motor vehicle insurance in effect in the state of domicile of the victim on the date when the motor vehicle accident resulting in injury occurs.

40 P.S. § 1009.110(c)(1). He distinguishes Walter on the ground that the accident in that case occurred prior to the passage of the No-Fault Act and therefore that § 110(c) was inapplicable. We reject appellant’s argument. The conflicts of law approach followed by this Court in Walter is still the law in this Commonwealth. Moreover, Walter was cited with approval in a 1983 case. See In Re Estate of Agostini, supra 311 Pa.Super at 251, 457 A.2d at 870. We also note that § 110(c) is apparently aimed at protecting the rights of Pennsylvania nonresidents to recover basic loss benefits and to sue in tort. See Toter v. Knight, 278 Pa.Superior Ct. 547, 553, 420 A.2d 676, 679 (1980) (“section 110(c)(1) expresses two general rules governing the rights of a non-resident to recover basic loss benefits when the non-resident is injured in a motor vehicle accident in this State”); DuBose v. McCoy, 277 Pa.Superior Ct. 149, 151, 419 A.2d 705, 706 (1980) (interpretative regulations promulgated by the Pennsylvania Insurance Department on § 110(c) of the No-Fault Act provide that if a nonresident is involved in an accident in the Commonwealth, he will receive the benefits as provided under his state of domicile’s no-fault plan). Therefore, in the absence of a clear legislative pronouncement that the question of stacking uninsured motorist coverages shall always be determined under the law of the state of the victim’s domicile, we will continue to follow the choice-of-law principles established at common law in this Commonwealth. See In Re Estate of Agostini, supra; Nationwide Mutual Insurance Co. v. Walter, supra.

Accordingly, we find that the lower court properly confirmed the arbitration award.

Affirmed.

      . The order is appealable under 42 Pa.C.S.A. §§ 7320(a)(3) and 7342(a).

        . The Pennsylvania Uninsured Motorist Act is codified at 40 P.S. § 2000(a).
      The purpose of the uninsured motorist law is to provide protection to innocent victims of irresponsible drivers. The amount of the coverage to be afforded by the uninsured motorist feature of the policy is set by the statute, but nowhere, explicitly or implicitly, does the act place a limit on the total amount a victim may recover if he suffers a loss resulting from the negligence of an uninsured motorist.

        Estate of Rosato v. Harleysville Mutual Insurance Co., 328 Pa.Superior Ct. 278, 282, 476 A.2d 1328, 1330 (1984), quoting Harleysville Mutual Casualty Co. v. Blumling, 429 Pa. 389, 395, 241 A.2d 112, 115 (1968). “The Uninsured Motorist Act allegedly ensures that innocent victims recover the damages they would have received had the uninsured tortfeasor maintained liability insurance.” 328 Pa.Superior Ct. at 283, 476 A.2d at 1331.

      . We note that Walter is factually distinguishable from the instant case. There, the insured vehicle was temporarily in Pennsylvania while the dealer attempted to sell it on behalf of the owner. Here, the vehicle had been given to appellant, a Pennsylvania resident, and therefore it was not “mere happenstance” that the vehicle was involved in an accident while located in Pennsylvania. However, despite these factual differences, we are bound by the Walter Court’s application of the Griffith approach in focusing on each state’s contacts with the insurance policy, rather than with the alleged tort.

      . Although we recognize that federal law apparently takes a contrary position to the one taken by this Court in Walter, see Travelers Ins. Co. v. Davis, 490 F.2d 536 (3d Cir.1974); Parker v. State Farm Ins. Co., 543 F.Supp 806 (E.D.Pa.1982), we must follow Pennsylvania precedent.

      . Although this Court in Toter indicated that a significant or even “critical” contact in no-fault cases may be a party’s domicile, that statement was premised on the assumption that the accident victim was the person who took out the insurance policy and paid the premiums. 278 Pa.Superior Ct. at 554-55, 420 A.2d at 680-81.