text:
    542 A.2d 123
    PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, Appellant, v. NICHOLSON CONSTRUCTION COMPANY, a Corporation.
    Superior Court of Pennsylvania.
    Submitted Oct. 16, 1987.
    Filed April 25, 1988.
    Reargument Denied June 8, 1988.

      Jack L. Cherkin, Pittsburgh, for appellant.
    Ingrid S.M. Lundberg, Pittsburgh, for appellee.
    Before BROSKY, DEL SOLE and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from an order granting a motion for summary judgment in favor of defendant-appellee and against plaintiff-appellant. Appellant contends that the lower court erred in determining that its cause of action for contribution was barred by the applicable statute of limitations. We disagree and, accordingly, affirm the lower court’s order.

On February 5, 1985, appellant commenced this action against appellee seeking statutory contribution in the amount of $28,732.59 arising from an earlier lawsuit. Anthony Pietrzyk, appellee’s employee, was seriously injured in a work-related accident which occurred on November 11, 1971. Pietrzyk then filed a lawsuit against Phillips Construction Co., who was the subcontractor on the work site and insured by appellant. Phillips Construction Company joined appellee as an additional defendant in the action . Following a jury trial, appellant and appellee were found jointly and severally liable and Pietrzyk was awarded $125,-000. 00 in damages. On October 14, 1977, appellant paid $91,231.59 of the verdict, representing the difference between the verdict and the $33,768.41 worth of workmen’s compensation benefits already received by Pietrzyk. The docket reflected that the verdict was marked “satisfied and costs paid.”

There was no further action taken on this case until February 21, 1984, when Pietrzyk filed a petition to reinstate his rights pursuant to the Worker’s Compensation Act, 77 Pa.S.A. §§ 1-601. Appellee settled the claim and agreed to pay Pietrzyk 40% of his weekly benefits to be applied towards his pro rata share of counsel fees. Appellant then initiated this contribution action against appellee seeking to recover the undisposed 60% of Pietrzyk’s weekly compensation benefits, which amounts to $36.00 per week, until $28,731.59 is recovered or the compensation payments are terminated. Upon receiving cross-motions for summary judgment, the lower court granted appellee’s motion and concluded that appellant’s action for contribution was barred by the statute of limitations governing assumpsit actions. This appeal followed.

Appellant initially contends that the summary judgment was improper because its cause of action was not barred by the statute of limitations. Appellant alleges that appellee’s unauthorized suspension of compensation payments to Pietrzyk tolled the statute of limitations until 1984 when the compensation payments resumed. Appellant contends further that each weekly compensation payment constitutes an installment and with each installment a new and separate cause of action is created. Appellant reasons that because a new cause of action accrues with each compensation payment, a new limitation period attaches to each payment.

A motion for summary judgment is properly granted “in cases where the right is clear and free of doubt.” Consumer Party of Pennsylvania v. Commonwealth of Pennsylvania, 510 Pa. 158, 174-75, 507 A.2d 323, 331 (1986). Pennsylvania Rule of Civil Procedure 1035(b), allows for the grant of summary judgment only when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. As we stated in Morgan v. Johns-Manville Corp., 354 Pa. Superior Ct. 58, 61, 511 A.2d 184, 186 (1986):

When deciding whether to grant a motion for summary judgment, a court must draw all reasonable inferences in favor of the nonmoving party, Helinek v. Helinek, 337 Pa.Superior Ct. 497, 502, 487 A.2d 369, 372 (1985), and view all of the evidence in a light most favorable to the non-moving party, Rossi v. Pennsylvania State University, 340 Pa.Superior Ct. 39, 48, 489 A.2d 828, 833 (1985).

In Pennsylvania, it is well-established that an action for contribution is based on equitable principles and sounds in contract rather than tort law. See, e.g., Matter of Reading Co., 404 F.Supp. 1249, 1251 (E.D.Pa.1975). Under the Uniform Contribution Among Tortfeasors Act, 42 Pa.C. S.A. §§ 8321-27, Pennsylvania law provides for a right of contribution among joint tortfeasors if: (1) two or more persons are found jointly and severally liable in tort and (2) if one of the tortfeasors has paid more than his or her pro rata share of the common liability. Id. See also Mattia v. Sears Roebuck & Co., 366 Pa. Superior Ct. 504, 507, 531 A.2d 789, 791 (1987). A joint tortfeasor has the option of pursuing his or her right for contribution either by maintaining a separate and independent action or by having the plaintiffs judgment marked to the use of the party seeking contribution. Puller v. Puller, 380 Pa. 219, 220 n. 1, 110 A.2d 175, 176 n. 1 (1955) (designating plaintiffs judgment allows joint tortfeasor to recover, via subrogation, from other tortfeasors). A joint tortfeasor’s right to contribution is distinct from the original action. Hughes v. Pron, 286 Pa. Superior Ct. 419, 426, 429 A.2d 9, 12 (1983). Because of this distinction, the statute of limitations on a contribution action begins to run only when a judgment is entered in favor of the plaintiff in the original action. Id.; Goodrich-Amram 2d 2252(a):9.

The statute of limitations for a contribution action is statutorily governed by 42 Pa.C.S.A. § 5527, which provides that a six year period applies to all civil actions which are not subject to another limitation specified by statute. Because a contribution action is not specifically named within a particular limitations statute, the applicable statute of limitations is § 5527. See 42 Pa.C.S.A. § 5527. Accordingly, in an action for contribution, the applicable limitation period is six years commencing from the entry of judgment against the joint tortfeasors. Id.; see also Kim v. Michigan Ladder Co., 208 F.Supp. 298, 301-02 (W.D.Pa.1962); Hughes v. Pron, supra.

Here, appellant contends that the statute of limitations has not run on its contribution action because of the resurgence of the weekly compensation benefits. Appellant concedes that the applicable statute of limitations for the instant case is six years. Appellant’s Brief at 12. Appellant alleges, however, that the limitation period was tolled for seven years. The right of contribution is an exclusive matter between joint tortfeasors and is not effected by the inability of the original plaintiff to obtain relief from his or her employer under the Worker’s Compensation Act. Kim v. Michigan Ladder Co., supra. The receipt of compensation benefits by Pietrzyk does not toll the statute of limitations because Pietrzyk’s ability to collect does not effect the separate and independent cause of action that appellant has brought against appellee. Thus, appellant’s contribution action is distinct from Pietrzyk’s claims for benefits under the Worker’s Compensation Act. See Hughes v. Pron, supra. Accordingly, appellant’s claim that the payment of weekly compensation benefits gives rise to a series of new causes of action and periods of limitations is without merit. We, therefore, set aside any further consideration of the effect of the Worker’s Compensation Act upon appellant’s right to pursue an independent action for contribution.

We must next address whether the applicable statute of limitations has run on appellant’s contribution claim. It is first necessary to establish when appellant’s contribution claim arose. An adverse judgment was entered against appellant and appellee on September 15, 1977. Because the statute of limitations on a contribution action begins to run once judgment is entered against the joint tortfeasors, appellant’s right to sue for contribution began on September 15, 1977. See Hughes v. Pron, supra. An action for contribution has a six year statute of limitations. See 42 Pa.C.S.A. § 5527; Kim v. Michigan Ladder Co., supra. Thus, the statute of limitations on appellant’s claim had run as of September 15, 1983. Therefore, appellant’s action that commenced on February 5, 1985, was effectively barred by the six year limitation period. Accordingly, because no genuine issues of material fact remain to be decided and appellant’s action was clearly brought outside the applicable statute of limitations, we affirm the order of the lower court granting appellee’s motion for summary judgment.

Affirmed.

      . Prior to February 1, 1975, Pennsylvania law permitted a third party sued by an injured employee to join the employer as an additional defendant for purposes of establishing joint liability to obtain contribution or indemnity to the extent of the statutory employer’s compensation limits. See McDevitt v. Terminal Warehouse Co., 346 Pa. Superior Ct. 186, 188-89 n. 1, 499 A.2d 374, 375 n. 1 (1985); Bell v. Koppers Co., Inc., 481 Pa. 454, 457, 392 A.2d 1380, 1382-83 (1978). Thereafter, the Pennsylvania Legislature enacted an amendment to the Pennsylvania Worker’s Compensation Act, Section 303(b), Act of Dec. 5, 1974, P.L. 782, No. 263, § 6, which provides:
      In the event injury or death to an employe is caused by a third party, then such employe ... may bring their action at law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action.
      77 Pa.S.A. § 481(b). Accordingly, because in the instant case the employee’s injury occurred prior to the amendment's effective date and the suit was filed subsequent to the enactment of the amendment, appellee, the statutory employer, was not precluded from being joined as an additional defendant by virtue of the Act. See Bell v. Koppers, supra, 481 Pa. at 458-59, 392 A.2d at 1383. (enactment of 77 Pa.S.A. § 481 applies prospectively and does not bar the joinder of the employer where the accident occurred prior to February 5, 1975 and the suit was filed subsequent to that date).

      . Pennsylvania Worker’s Compensation Act, Act of June 2, 1915, P.L. 736 as amended.

      . We note that the case sub judice concerns an action in contribution which is completely separate from the original action. See Svetz v. Land Tool Company, 355 Pa. Superior Ct. 230, 513 A.2d 404 (1986) (in a contribution action, rights and obligations flow not from the tort but from the settlement or judgment itself).


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    542 A.2d 127
    Joseph ALBERICI and, Theresa Alberici, Appellants, v. Nino V. TINARI, Esquire and Timothy Gorbey, Esquire, Appellees.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1988.
    Filed May 6, 1988.

      Leonard Samer, Philadelphia, for appellants.
    Jeffrey B. Albert, Philadelphia, for Tinari, appellee.
    Gordon Gelfond, Philadelphia, for Gorbey, appellee.
    Before CAVANAUGH, ROWLEY and POPOVICH, JJ.
   CAVANAUGH, Judge:

The primary issue in this case is whether a civil malpractice action against attorneys is barred where the federal court, in which the underlying criminal case was tried, has previously determined that counsel was not ineffective. The court below granted summary judgment in favor of the defendants below, Nino V. Tinari, Esquire and Timothy Gorbey, Esquire, the appellees herein, and we affirm.

With respect to a motion for summary judgment, Pa.R. C.P. 1035(b) provides that such judgment may be entered if pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Helinek v. Helinek, 337 Pa.Super. 497, 487 A.2d 369 (1985); Loyal Christian Benefit Association v. Bender, 342 Pa.Super. 614, 493 A.2d 760 (1985). A summary judgment should only be entered in those cases which are clear and free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 456 A.2d 1009 (1983). The court must accept as true all well-pleaded facts in the non moving party’s pleadings, and give the non moving party the benefit of all reasonable inferences to be drawn therefrom. Spain v. Vicente, 315 Pa.Super. 135, 461 A.2d 833 (1983); Metal Bank of America v. Insurance Company of North America, 360 Pa.Super. 350, 520 A.2d 493 (1987). However, a prima facie showing by the parties seeking summary judgment, i.e., the production of enough evidence to demonstrate such parties entitlement to a judgment if the evidence were uncontroverted at trial, shifts the burden of producing evidence to the party opposing the motion. In such circumstances summary judgment should be granted to the moving party unless the opposing party offers competent evidence admissible at trial showing that there is a genuine issue of material fact. Community Medical Services, Inc. v. Local 2665, 292 Pa.Super. 238, 437 A.2d 23 (1981).

When we are called upon to review an order granting summary judgment, our function is to determine whether there exists a genuine issue of material fact. Bobb v. Kraybill, 354 Pa.Super. 361, 511 A.2d 1379 (1986). We agree with the court below that the record demonstrates that there is no genuine issue of material fact, and that appellees are entitled to summary judgment as a matter of law.

The criminal proceedings in the federal judicial system were extensive and complex and a recitation of what occurred there is necessary to an understanding of the case. The appellant, Joseph Alberici, was indicted in federal court in August, 1982, on six counts of mail fraud in connection with an alleged scheme to collect fire insurance proceeds as a result of an arson occurring on August 6, 1977. The arson centered around the Jerry Lewis Theater in Ashton, Pennsylvania which Alberici, by agreement of sale dated May 9, 1977, had agreed to purchase.

On November 16, 1982, prior to trial, a hearing was held before Federal District Court Judge Louis H. Poliak at which it was disclosed to Mr. Alberici that his trial counsel, Nino Tinari, Esquire, received a grant of immunity to testify as a witness before the Grand Jury in an unrelated criminal investigation. Alberici continued to have Mr. Tinari represent him in the criminal proceedings. Timothy Gorbey, Esq., entered his appearance as co-counsel for Mr. Alberici in November, 1982.

Trial was held in January, 1983 before Poliak, J. and a jury and the defendant was convicted of all six counts of the indictment. Shortly thereafter, Messrs. Tinari and Gorbey filed on his behalf timely motions for a new trial and judgment of acquittal under Rule 33 of the Federal Rules of Criminal Procedure. Motions were denied by the court in February, 1983. Thereafter, Mr. Alberici discharged Messrs. Tinari and Gorbey as his counsel and retained new counsel, Richard Sprague, Esq., who filed “Supplemental Motion for Judgment of Acquittal or, in the Alternative, for New Trial.” This motion raised the issue of ineffectiveness of counsel on three specific grounds: (1) failure to investigate properly; (2) failure to obtain the attendance of or to call certain witnesses at trial; and (3) failure to represent the defendant at trial in a competent fashion. On July 25, 1983 the District Court granted the motion for new trial on grounds separate from the issue of the ineffective assistance of counsel. Although the court referred to the issue, it specifically indicated that it was not determining the issue of ineffectiveness of counsel. As a result of the grant of the motion, Alberici’s convictions on all six counts of the indictment were vacated. Subsequently, however, the District Court reinstated the conviction with respect to Count 5 and he was sentenced to imprisonment for 20 months.

Mr. Alberici appealed to the United States Court of Appeals, Third Circuit, from the judgment of sentence. He was represented by new counsel, Jeffrey Miller, Esq., who replaced Richard Sprague, Esq. Mr. Alberici now claimed ineffective assistance of trial counsel as a result of (1) failure to request an accomplice instruction and (2) failure to investigate the defense that another individual had a motive to burn down the theater. The Court of Appeals affirmed the judgment of sentence and ruled that counsel was not ineffective. Mr. Alberici, who was still represented by Mr. Miller, filed a petition for a writ of certiorari with the Supreme Court of the United States alleging, inter alia, ineffective assistance of counsel. The petition was denied in December, 1984.

Soon thereafter, Mr. Alberici retained new counsel, Richard M. Meltzer, Esq., who filed a motion for new trial in January, 1985 which was denied in August, 1985. In February, 1986, Mr. Alberici, through counsel, filed a motion to vacate, set aside or correct sentence under 20 U.S.C. § 2555 alleging again ineffective assistance of counsel. The motion was denied by order of Poliak, J. on December 2, 1986, who stated in his slip opinion: “As described above, defendant set forth an ineffective assistance claim in his second motion for new trial. We conclude that this claim was fully adjudicated on the merits in that motion and on direct appeal ...”

Mr. Alberici filed an appeal from the order of December 2, 1986, which order was affirmed by the Court of Appeals in June, 1987. That court, speaking through Mansmann, J., held that the trial court did not abuse its discretion in denying Alberici’s motion for collateral relief under 28 U.S.C. § 2255 without holding an evidentiary hearing. The Court of Appeals held that after a hearing on the defendant’s second motion for a new trial, the District Court established that Alberici’s trial counsel was competent and effective and that determination was upheld on appeal by the Court of Appeals for the Third Circuit.

In his civil complaint, Alberici claimed that Tinari and Gorbey breached their duties to him as his attorneys in that they and each of them:

A. Failed to investigate, interview and arrange for their attendance at the trial of [various witnesses and potential suspects].
B. Failed to examine and make effective use of [various records and documents].
C. Failed to request that the Trial Judge give an accomplice charge, since the prosecution depended very heavily on the testimony of persons allegedly linked with plaintiff Alberici in the alleged arson which was the focus of the alleged mail fraud.
D. Failed to prepare adequately for meaningful cross examination and closing argument and for proper use of prior inconsistent statements to impeach and means to attack fabricated and highly prejudicial evidence, e.g. identity of escape car not owned by alleged arson accomplice at time of incident. (Paragraph 12 of the Complaint) The Second Count alleged in paragraph 18 that:
“As a result of the malpractice of each of the Defendants as aforesaid, Plaintiff, THERESA ALBERICI, has been and may continue to be deprived of the society, companionship and consortium of her husband, JOSEPH ALBERICI.”

The court below granted Tinari’s and Gorbey’s motions for summary judgment on the grounds that the federal adjudication of Mr. Alberici’s ineffective assistance claim barred a civil malpractice action. There are no appellate decisions in this Commonwealth which deal directly with the issue before us. However, Reiger v. Ambrose, 38 Pa.D. & C.3d 430 (Erie County, 1986) decided by the Court of Common Pleas of Erie County is most instructive. In that civil case, the plaintiff had been charged with violating federal gambling laws. After dismissing his counsel and proceeding pro se, he was found guilty. He filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255, as in the instant case, alleging ineffective assistance of counsel. A hearing was held in federal court and counsel was found to be effective. “Plaintiff, unsuccessful in his attempt to persuade the federal court of his trial counsel’s ineffectiveness, filed this civil action [in the Court of Common Pleas of Erie County] alleging negligence and breach of contract.” 38 Pa.D. & C.3d at 431. The court granted defendant’s motion for summary judgment on the basis of collateral estoppel and stated at 38 Pa.D. & C.3d 433:

Plaintiff, against whom the doctrine of collateral estoppel is asserted, was clearly a party in the prior criminal action. He certainly had a full and fair opportunity to litigate the issue of ineffectiveness of counsel in the prior proceeding ... Plaintiff was also represented by legal counsel. The issue of ineffectiveness of counsel was not only essential to, but was the heart of plaintiffs motion to vacate sentence in the federal court criminal proceeding.

In People ex rel. Snead v. Kirkland, 462 F.Supp. 914 (E.D.Pa.1978), the plaintiff, who was convicted in federal court, sought damages against his defense counsel based on ineffective representation. The District Court held that the action was barred by collateral estoppel as the issue of effectiveness of counsel was raised and decided adversely to the plaintiff in his motion to vacate, set aside or correct the sentence. The question of collateral estoppel as a defense was carefully analyzed in “Criminal Malpractice: Threshold Barriers to Recovery Against Negligent Criminal Counsel, ” Duke Law Journal, 1981 page 542. The article refers to criminal malpractice as legal malpractice in the course of representing a criminal defendant. In discussing collateral estoppel, the author states:

III. COLLATERAL ESTOPPEL
The doctrine of collateral estoppel is a potential defense to any legal malpractice action. One application of the doctrine, however, is unique to criminal malpractice suits. A client who has unsuccessfully raised the constitutional claim of ineffective assistance of counsel in the underlying criminal action is estopped from relitigating identical issues in a subsequent malpractice action against his defense attorney.
Applying this form of estoppel in a criminal malpractice action is justified only in certain circumstances. First, the issue barred from relitigation must be identical to an issue necessarily decided or actually adjudicated in the prior proceeding. Second, the party against whom the defense is asserted must have had a full and fair opportunity to litigate the issues in the prior proceeding. In the context of criminal malpractice actions the second requirement generally presents no problem. The client had his day in court when his claim of ineffective assistance of counsel was litigated in the underlying criminal action. The first requirement, however—that the issues be identical—is not so easily satisfied.
In some jurisdictions, however, courts apply different standards for judging the performance of counsel in malpractice actions than in ineffective assistance proceedings. The standard used in malpractice actions is relatively uniform: courts require attorneys to exercise that degree of skill and knowledge normally possessed by their colleagues. The standard used to determine whether a client has received constitutionally effective assistance of counsel, however, varies from jurisdiction to jurisdiction. The Supreme Court has held that the attorney’s advice must be “within the range of competence demanded of attorneys in criminal cases.” Most courts follow this standard, or the similar test of “reasonable competency.” If the court determining the assistance of counsel claim uses this standard, the malpractice standard may be sufficiently analogous to provide the requisite identity of issues. (Emphasis added.) Pages 551-553 Footnote 60 follows the last sentence above quoted and

states:

60. Some courts have forged standards for effective assistance of counsel that are virtually identical to legal malpractice standards. See, e.g., United States v. Hood, 593 F.2d 293, 297 (8th Cir.1979) (“In order to prevail on a claim of ineffective assistance of counsel, a defendant must show that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances.”); Moore v. United States, 432 F.2d 730, 736 (3d Cir.1970) (“[T]he standard of adequacy of legal services ... is the exercise of the customary skill and knowledge which normally prevails at the time and place.”) (Emphasis added.) Page 553

In order to establish ineffective assistance of counsel, a defendant must show that his attorney’s representation fell below an “objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674, (1984). The appellees met this standard of reasonableness in the eyes of the federal court.

The appellants alleged in their complaint that the appellees “in the aforesaid criminal proceedings, failed to use that degree of skill, care, knowledge and attention ordinarily possessed and exercised by practitioners of the legal profession under like circumstances ...” In other words, the complaint alleges failure to comply with the same standards as the federal court used in determining that counsel were not ineffective. See Moore v. United States, 432 F.2d 730 (3d Cir.1970).

The doctrine of collateral estoppel as applied in Pennsylvania requires that: (1) the issue decided in the prior litigation was identical with the one presented in the later action; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication and (4) the party against whom it was asserted had a full and fair opportunity to litigate the issue in question in a prior action. Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 464 A.2d 1313 (1983); Derry Township School District v. Day & Zimmerman, Inc., 345 Pa.Super. 487, 498 A.2d 928 (1985). The doctrine of collateral estoppel is a broader concept than res judicata and operates to prevent a question of law or issue of fact which has once been litigated and finally determined in a court of competent jurisdiction from being relitigated in a subsequent suit. Keystone Building Corporation v. Lincoln Savings and Loan Association, 468 Pa. 85, 360 A.2d 191 (1976), and Day v. Volkswagenwerk v. Aktiengesellschaft, supra.

The troublesome part in our application of the doctrine of collateral estoppel is whether the federal court finally adjudicated the same issues raised in the civil action commenced in the court below. We conclude that the issues were finally determined. The central theme in the various post-trial proceedings in the federal court was that trial counsel in the federal criminal trial were ineffective. In the motion for . reconsideration of the defendant’s motion for new trial, Mr. Sprague claimed ineffective assistance of counsel by virtue of failure to object to inadequacies of the court’s charge to the jury. This is covered in paragraph 12(C) of the complaint. Also, in his appeal to the United States Court of Appeals for the Third Circuit, the appellant alleged ineffectiveness in failing to request an accomplice instruction. Paragraphs 12(A) and 12(B) set forth a cause of action based on improper defense of the criminal charges. This claim of inadequate defense was set forth not only in the motion for reconsideration of the defendant’s motion for new trial, but also in his supplemental motion for acquittal. Subparagraph (D) also goes to improper defense and although it enunciates allegations that were not specifically raised in the proceedings in the federal court, they are only a facet of the broader concept of improper defense or ineffective assistance of counsel. There is nothing set forth in the civil complaint that was not ascertainable from the trial record in the District Court and available to the appellant and his subsequent counsel. The appellant has not claimed any malpractice on the part of subsequent counsel, and yet it would seem that if trial counsel were remiss, all aspects of their ineffectiveness would have been raised in the various proceedings in the federal court. Stated otherwise, Alberici’s claim of malpractice is against only his trial counsel. Since there is no assertion of malpractice against subsequent counsel, we can assume that they did not fail to raise all claims of trial counsel’s ineffectiveness that might have been raised. In any event, the appellant had the opportunity, which he properly exercised, of raising whatever issues of ineffective defense counsel within the federal judicial system that he desired. Merely casting the basic complaints in different form in the civil action does not constitute the raising of new issues so as to bar the doctrine of equitable estoppel.

The necessary elements to prove a cause of action based on legal malpractice are: (1) the employment of the attorney or other basis for a duty on the part of the attorney; (2) the failure of the attorney to exercise ordinary skill and knowledge; and (3) negligence by the attorney which was the proximate cause of damage to the plaintiff. Trice v. Mozenter, 356 Pa.Super. 510, 515 A.2d 10 (1986). See also Schenkel v. Monheit, 266 Pa.Super. 396, 405 A.2d 493 (1979); Ei Bon EE Baya Ghananee v. Black, 350 Pa.Super. 134, 504 A.2d 281 (1986). In the case before us, the appellant has unsuccessfully raised the question of ineffectiveness of counsel at three levels in the federal judicial system and it has been definitively determined that counsel was not ineffective. Accordingly, his conviction in the federal district court has been affirmed. The second element of the tri-partite test has not been met.

We hold as a matter of law that appellant has failed to set forth a cause of action. Cases from other jurisdictions support our conclusion. In Johnson v. Raban, Missouri Court of Appeals, 702 S.W.2d 134 (Mo.App.1985), the court held that a dismissal with prejudice of a legal malpractice suit was proper where the court in a criminal trial determined that the plaintiffs lawyer was not ineffective. The court applied the doctrine of collateral estoppel or issue preclusion. In Vavolizza v. Krieger, 33 N.Y.2d 351, 352 N.Y.S.2d 919, 308 N.E.2d 439 (1974) the New York Court of Appeals held that the denial of a criminal defendant’s motion to vacate a guilty plea in a criminal action acted to collaterally estop a later civil action brought against the attorney for malpractice based on the attorney’s advice to plead guilty. In Garcia v. Ray, Civil Court of Appeals of Texas, 556 S.W.2d 870 (Tex.Civ.App.1977), summary judgment was entered in favor of an attorney who was sued for malpractice by his former client in a criminal case. The client had been found guilty and had appealed on the grounds of ineffective assistance of counsel. The appellate court in the criminal case had determined that counsel was not ineffective and it was held that this barred the assertion of such a claim in a civil action.

Where the issue of ineffectiveness of counsel has been fully explored in the criminal forum, and it has been determined that the counsel was not ineffective and the defendant’s conviction has been sustained, it would be totally unreasonable to allow the question of effectiveness of counsel to again be questioned in a civil trial. Such a procedure would require a complete review of the criminal proceedings to determine if counsel did or did not act in such a way that his conduct, or lack thereof, prejudiced the criminal defendant. That question, having already been determined in the underlying criminal proceeding, may not again be the subject of judicial inquiry in a civil proceeding.

The appellant also contends that the court below erred in granting summary judgment on the present state of the record. In Joseph Alberici’s answer to motion for summary judgment, he does not object to the entry of summary judgment because of the state of the record, including incomplete discovery. It is well settled that issues not raised in the hearing court are not properly preserved for appellate review and will not be considered. Kovach v. General Telephone Co. of Pennsylvania, 340 Pa.Super. 144, 489 A.2d 883 (1985); Cherry v. Willer, 317 Pa.Super. 58, 463 A.2d 1082 (1983); Durkin v. Equine Clinics, Inc., 313 Pa.Super. 75, 459 A.2d 417 (1983); O’Malley v. Peerless Petroleum, Inc., 283 Pa.Super. 272, 423 A.2d 1251 (1980); Pa.R.A.P. 302(a).

Judgment affirmed.

      . In February, 1983 Mr. Sprague also filed motions for reconsideration of defendant’s motion for new trial alleging ineffective assistance of trial counsel by virtue of counsel's failure to (1) investigate possible exculpatory testimony (2) object to inadequacies in the court’s jury charge and (3) prepare the defense adequately as evidence by cross examination and closing argument.

      . Pollak, J. further stated at pages 7 and 8:

        In the usual case, a section 2255 motion is the first opportunity the sentencing court has to consider claims of ineffective assistance of counsel or failure to disclose evidence. An ineffective assistance claim cannot be brought until a defendant has abandoned his trial counsel; both types of claims are likely to require post-trial investigation. But the case before us is unusual. Defendant in this case obtained new counsel and was granted what became a lengthy continuance in order to raise his ineffective assistance claim through post-trial motions and on direct review. Defendant then used the procedural device of a third motion for new trial under Rule 33 to raise claims of failure to disclose evidence, claims that, as this court pointed out in its August 9, 1985 ruling, might more appropriately have been brought in a section 2255 motion. Applying the standard articulated in Palumbo to the record created by these proceedings, we conclude that defendant is not free to relitigate his claim in the motion he has at last brought pursuant to section 2255.

      . The court noted in Reiger v. Ambrose, 38 Pa.D. & C.2d at 434:
      Both the state and federal legislatures have provided to persons convicted of crimes an opportunity to second guess their counsel (28 U.S.C. § 2255 et seq. and 42 Pa.C.S. § 9541 et seq.) However, the doctrine of estoppel denies them a third guess.

      . Collateral estoppel is also referred to as "issue preclusion”. Commonwealth v. Winter, 324 Pa.Super. 255, 256, 471 A.2d 826 (1984).

      . In this case we pointed out that a claim of ineffective assistance of counsel is tantamount to an allegation of incompetency. We held that the fact that a criminal defendant may have a remedy within the state criminal justice system under the Post Conviction Hearing Act does not preclude him from pursuing civil remedies based on the alleged negligent conduct of the attorney. This ruling does not affect the doctrine of collateral estoppel where the issue of ineffectiveness of counsel has been thoroughly considered and it has been definitively decided that counsel was not ineffective.

      . As Joseph Alberici has not set forth a cause of action, the Second Count pertaining to Theresa Alberici’s claim must also fail as it is a derivative action.

      . The court added at 702 S.W.2d 138: “Finally, public policy dictates that a person convicted of a crime who has failed in his attack upon his conviction both directly and collaterally should not be permitted to recover against his attorney in a civil malpractice action for damages allegedly arising out of the attorneys handling of his defense.”

      . The court stated at 556 S.W.2d 872:
      The standard of proof generally in a criminal case is usually different than in civil actions. However, on the other hand, how could you test the adequacy of counsel any better than by having the direct point determined by the highest court of our State in the related criminal case?


author: ROWLEY, Judge:

text:
    542 A.2d 133
    Cynthia GREGORY, Administratrix of the Estate of Charles Gregory, Deceased, and Cynthia Gregory, individually, on behalf of herself and all other persons similarly situated v. HARLEYSVILLE MUTUAL INSURANCE COMPANY. Appeal of Cynthia GREGORY, Administratrix of the Estate of Charles Gregory, Deceased, and Cynthia Gregory, individually, on behalf of herself and all other persons similarly situated, and Angino & Rovner, P.C.
    Superior Court of Pennsylvania.
    Argued Dec. 10, 1987.
    Filed May 18, 1988.

      Richard C. Angino, Harrisburg, for appellants.
    Before ROWLEY, McEWEN and POPOVICH, JJ.
   ROWLEY, Judge:

This appeal of Cynthia Gregory, as the administratrix of the estate of Charles Gregory and on behalf of herself and a class of persons similarly situated, and Angino & Rovner, P.C., counsel for the class of persons represented by Gregory (Appellants), is from the trial court’s order of May 20, 1987, denying the request of Angino & Rovner for reimbursement of expenses, other than taxable costs, incurred during their successful representation of the class in an action under the now-repealed Pennsylvania No-fault Motor Vehicle Insurance Act, 40 P.S. §§ 1009.101 et seq. The sole issue on appeal is whether Appellants are entitled to recover counsel’s out-of-pocket and paralegal expenses from the class members themselves. For the reasons set forth below, we hold that they are. We reverse, therefore, and remand for further proceedings.

This action was begun when Cynthia Gregory filed a complaint in assumpsit as a class action on March 24, 1983, against Harleysville Mutual Insurance Company (hereinafter “Harleysville”). Ms. Gregory asserted that Harleysville engaged in the practice of denying maximum work loss benefits available to its insureds by setting off the maximum available survivor’s loss benefits against the work loss benefits. She sought to represent all of Harleysville’s insureds who had been denied maximum work loss and/or survivor’s loss benefits under this practice. Ms. Gregory was represented by the law firm of Litman, Litman, Harris, Brown & Watzman, P.C. On July 30, 1986, the trial court entered an order certifying the action as a class action, the proceedings having been stayed in the interim at the request of Harleysville to await the outcome of a similar class action lawsuit against Harleysville. During the stay, Appellants entered an appearance as co-counsel. The case went to trial on December 8, 1986. After a half day of testimony, the parties reached a settlement.

After failing to reach agreement with Harleysville concerning payment of attorney’s fees and expenses, Appellants petitioned the trial court to order Harleysville to pay all of the plaintiffs’ counsel fees and expenses or, alternatively, to order Harleysville to pay the majority of the fees and expenses and class members to pay a significantly smaller amount. On May 20, 1987, following hearings on the petition, the trial court ordered Harleysville to pay plaintiffs’ counsel fees. The court made the award of counsel fees pursuant to § 1009.107(3) of the No-fault Act, which provides for such an award where “the court determines that the obligor has denied the claim or any significant part thereof without reasonable foundation----” Harleysville was also directed to pay all taxable costs (i.e., docket costs). The request for reimbursement of expenses other than taxable costs was denied, however, with the trial court stating that “[w]e find no authority whatsoever ... which authorize^] as costs to a party the expenses for photocopies, telephone calls, express mail delivery, supplies, meals, or computer or paralegal charges herein sought by the plaintiff” (Trial Court Opinion at 54). Appellants repeated their request for reimbursement of out-of-pocket and/or paralegal expenses in a motion for reconsideration filed on June 2, 1987. The motion was denied the following day, and this timely appeal followed.

In this appeal Appellants assert that they are entitled to recover from the members of the class reimbursement for their out-of-pocket expenses and costs of paralegal time, the total of which is an amount approximately equal to three percent of the class members’ recoveries. These expenditures were incurred, they contend, in the process of investigating the claims of 152. potential class members and thoroughly documenting the claims of the 119 estates identified as being entitled to recover through the class action. They contend that the trial court confused “costs” with “expenses” and that recovery of the latter from the class members out of the settlement proceeds is not only not barred by the No-fault Act but is in fact allowed under the “common fund” doctrine and mandated by Disciplinary Rule 5-103(B). They do not challenge the trial court’s ruling that out-of-pocket and paralegal expenses cannot be recovered from Harleysville. Harleysville has declined to participate in the appeal. Furthermore, no brief in opposition to Appellants’ request has been filed by the class representative or any member thereof.

The trial court identified § 106(b)(1) of the No-Fault Act, 40 P.S. § 1009.106(b)(1), as the provision of the Act that provides for recovery of costs where, as in this case, the action has been settled by the parties. § 106(b)(1) provides in pertinent part that

a claim may be discharged by a settlement to the extent authorized by law and upon a finding, by a court of competent jurisdiction, that the settlement is in the best interest of the claimant and any beneficiaries of the settlement ... and upon payment by the restoration obligor [the insurer] of the costs of such proceeding including a reasonable attorney’s fee (based upon actual time expended) to the attorney selected by or appointed for the claimant. Such costs may not be charged to or deducted from the proceeds of the settlement ...

(emphasis added). The language of § 106(b)(1) leaves no doubt that the costs to be paid by the insurer, whatever they may be, are the same costs that “may not be charged to or deducted from the proceeds of the settlement____” Thus, if the expenses sought to be recovered by Appellants (overhead and paralegal expenses), are “costs,” within the meaning of § 106(b)(1), they may not be charged to the settlement proceeds. On the other hand, if Appellants’ expenses are not included within the term “such costs,” § 106(b)(1) does not prohibit their recovery from Appellants’ clients.

As noted by the trial court, the term “costs” is not explained in § 106(b)(1) itself or in the definitions section of the No-fault Act, 40 P.S. § 1009.103. Appellants cite no case, and our research has uncovered none, that specifies the nature of the costs referred to in § 106(b)(1). Therefore, in order to comply with the statutory direction to construe words and phrases according to their common and approved usage, 1 Pa.C.S.A. § 1903(a), we turn to the general case law governing the award of costs. The general rule in an action at law is that the costs inherent in a lawsuit are awarded to and should be recoverable by the prevailing party. Gold & Company, Inc. v. Northeast Theater Corporation, 281 Pa.Super. 69, 75, 421 A.2d 1151, 1154 (1980); De Fulvio v. Holst, 239 Pa.Super. 66, 69, 362 A.2d 1098, 1099 (1976). These recoverable costs are the costs of proceeding in court, not those of preparation, consultation, and fees generally. Gold v. Northeast Theater, supra; De Fulvio v. Holst, supra. Costs not incurred in the court action, including counsel fees, are recoverable only on the basis of statutory authority. De Fulvio v. Holst, 239 Pa.Super. at 69, 362 A.2d at 1099-1100. Only in the rarest of circumstances is the unsuccessful party made to bear all of the expenses incurred in the litigation. Feist v. Luzerne County Board of Assessment Appeals, 22 Pa.Cmwlth. 181, 194, 347 A.2d 772, 780 (1975), cert. denied, 429 U.S. 1097, 97 S.Ct. 1115, 51 L.Ed.2d 545 (1977).

Thus, case law indicates that the common and approved meaning of “costs” is “court costs” or “docket costs.” If recovery of other costs is to be awarded from the unsuccessful party, there must be statutory authority for doing so. We conclude that § 106(b)(1) does not provide such authority. The costs that may be recovered from the insurer under this provision are “the costs of such proceeding.” This choice of words implies that only the costs attendant upon the judicial proceeding itself may be recovered. In addition, the statute provides explicitly for one addition to the general rule of costs, an attorney’s fee, but for no others. We decline to read into § 106(b)(1) an additional expansion of the general rule. Accordingly, we hold that § 106(b)(1) does not provide for the recovery of out-of-pocket and paralegal expenses from the insurer, and therefore it does not bar recovery of those costs from the proceeds of the settlement.

Moreover, Disciplinary Rule 5-103(B) of the Code of Professional Responsibility, adopted February 27, 1974, as amended through April 26, 1984, imposes upon an attorney an obligation to recover the costs of litigation from his or her clients. Pursuant to DR 5-103(B), an attorney may advance or guarantee the expenses of litigation only if the client remains ultimately liable for those expenses. In the case before us, the lawsuit filed by Appellants’ client, Cynthia Gregory, has resulted in the creation of a settlement fund that will be shared by Gregory and 118 other members of the class. Under the “common fund” doctrine, where a plaintiff creates a fund from which one or more other parties benefit, those parties should contribute proportionally to the expense of creating the fund. Shearer v. Moore, 277 Pa.Super. 70, 78, 419 A.2d 665, 669 (1980) (citing Hempstead v. Meadville Theological School, 286 Pa. 493, 495-96, 134 A. 103, 103 (1926)). We conclude that the common fund doctrine should be applied in the case before us.

Appellants ask that we reverse the trial court and require the class members to pay, in amounts pro-rated to the recovery of each member, the sum that Appellants assert they have incurred in paralegal and out-of-pocket expenses. They contend that this sum “is clearly reasonable in light of the ... settlement reached ... on behalf of the class” (Brief for Appellants at 24). Whether this sum is in fact reasonable is a question to be answered by the factfinder, which this Court is not. Accordingly, we reverse paragraph 6 of the trial court’s May 20, 1987 order, which denies Appellants’ request for reimbursement of expenses other than taxable costs, and remand the case to the trial court with instructions to determine the total expenses reasonably incurred by Appellants. That amount shall be paid to Appellants by the class members, with the contribution of each member being proportional to his or her recovery.

Paragraph 6 of the trial court’s order is reversed and the case is remanded for proceedings consistent with this memorandum. Jurisdiction is relinquished.

      . Cases in equity are exceptions to the general rule that costs follow the judgment and to the statutory allowance of the award of collateral costs. De Fulvio v. Holst, 239 Pa.Super. at 69 n. 1, 362 A.2d at 1100 n. 1. In equity, the awarding of costs rests in the sound discretion of the trial court. Id.

      . The Code of Professional Responsibility has been superseded by the Rules of Professional Conduct, adopted by order of our Supreme Court dated October 16, 1987, and effective April 1, 1988. As the Rules of Professional Conduct were not in effect during the course of this litigation, we do not address them here.

      . In so holding, we express no opinion as to the reasonableness of the total sum sought by Appellants in this appeal.


author: OLSZEWSKI, Judge: MELINSON, Judge,

text:
    542 A.2d 137
    Irvin FORD and Sylvia Ford, Appellants, v. Marvin S. ISDANER, Ruth B. Isdaner, Beverly Altman, Herbert J. Sayare, William Levy, Elaine Levy, Morris Powers, Pearl Powers, Seymour Welliksen, Marion Welliksen, Harry G. Shaw, Mildred Shaw, Clara Berkowitz, Harry Blaufeld, Shirley Blaufeld, Louis Zatz, Sara Zatz, Ralph Barron, Ann Barron, Bernard Brenner, Edith Brenner, Shirley Berkovitz, Melvin Lieberman, Sandra Lieberman, Henry R. Ricci, Sr., Rita R. Ricci, George Schiller, Bernice Shiller, Florence Grossman, Milton Klein, Sandra Klein, Roberta Luber, Harold Stile, Vivian Stile, Norman Cohan, Gladys Cohan, Mike Wirth, Selma Wirth, Harold Blatstein, Joan Blatstein and Gabriel Berkovitz.
    Superior Court of Pennsylvania.
    Argued March 24, 1988.
    Filed May 26, 1988.

      Steven R. Sosnov, Norristown, for appellants.
    Joel W. Todd, Philadelphia, for Isdaner, Altman, Sayare, Powers, Barron, Brenner, Lieberman and Wirth, appellees.
    Warren E. Voter, Philadelphia, for Levy, Shaw, Berkowitz, Blaufeld, Zatz, Stile, Luber and Cohan, appellees.
    Christine M. Mooney, Philadelphia, for Blatstein, appellee.
    Before CAVANAUGH, OLSZEWSKI, and MELINSON, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order sustaining preliminary objections and dismissing an amended complaint with prejudice. Having reviewed the record, the arguments of counsel and the case law, we affirm the dismissal of the complaint as to all appellees.

On October 6, 1983, appellants, Irvin and Sylvia Ford, requested injunctive relief against the Valley Forge Towers Condominium Association. Appellants, who were owners of a unit in the complex, alleged that a nuisance was created by a dumpster located outside of the condominium building. The matter was settled, however, and an order to that effect was entered on July 16, 1985.

On November 22,1985, appellants filed suit against appellees—forty-one residents of the condominium building. The complaint contained two counts: intentional infliction of emotional distress and civil conspiracy. In response, appellees filed preliminary objections attacking the lack of specific averments in the complaint. Acting upon a stipulation of counsel, the lower court entered an order on November 26, 1986, granting appellants leave to file an amended complaint and requiring them to plead their allegations of fact with specificity.

Appellants filed an amended complaint on December 18, 1986, and a second amended complaint in January of 1987. The second amended complaint alleged that sometime after October 6, 1983, each of the appellees intentionally inflicted emotional distress on appellants by refusing to talk to them and by turning their backs on them. It was also alleged that two of the appellees spat in appellants’ direction on two separate occasions, that certain appellees refused to shake appellants’ hands at the funeral of a mutual friend, and that appellants received anonymous telephone calls during late hours. In regard to appellee Ruth B. Isdaner, appellants claimed that on November 16, 1983, the former “demanded to know what right plaintiffs had to sue her for $4,000 and stated that she and other people were going around to people in the condominium telling them not to speak to plaintiffs.” Second amended complaint at para. 71. Likewise, appellees Sandra Lieberman, Sandra Klein and Joan Blatstein allegedly told acquaintances that appellants were suing them and, as a result, they and others should not talk to appellants. It was averred that these acts were undertaken to pressure appellants into dropping their prior suit to abate the nuisance, to punish them for instituting the suit by inflicting emotional distress, and to deprive them of their rights under the law.

In support of the count for civil conspiracy, appellants alleged that “certain of the defendants circulated a petition amongst themselves requesting acquiescence in the scheme of inflicting emotional distree [sic] on plaintiffs, and communicated the scheme and/or the fact of the petition to all the other defendants.” Id. at para. 47. Appellants also alleged that appellees made anonymous telephone calls during the night.

As a result of appellees’ acts, appellants claimed to have suffered emotional distress which, in turn, resulted in numerous conditions including: hypertension, anxiety, hernia, pulmonary interstitial fibrosis, anemia, tremor, fatigue and shortness of breath, duodenal ulcer and mental depression. Appellants allegedly incurred expenses in treating the various conditions and, accordingly, sought both compensatory and punitive damages in excess of $20,000 from each defendant.

In response to the second amended complaint, appellees again filed preliminary objections claiming the allegations in the complaint were still vague. By order dated September 14, 1987, the preliminary objections were sustained. This timely appeal followed.

In this appeal, appellants claim that the complaint contained sufficient allegations to state causes of action in tort for intentional infliction of emotional distress and civil conspiracy and, consequently, that the lower court erred in dismissing the complaint.

In sustaining the preliminary objections, the Honorable Samuel S. Salus eloquently supported his decision in a well-reasoned opinion. Although we are in complete agreement with the lower court that the complaint failed to set forth causes of action in tort, we find it necessary to make additional comments and to clarify several legal points.

Shortly before the decision of the lower court was rendered, our Supreme Court had occasion to examine the tort of intentional infliction of emotional distress. In Kazatsky v. King David Memorial Park, Inc., 515 Pa. 183, 527 A.2d 988 (1987), the Supreme Court stated that, contrary to the decisions of this Court, the intentional tort as defined in the Restatement (Second) of Torts § 46 had never been adopted in Pennsylvania. Expressing concern that the subjective nature of the tort would render it unwieldy, the Supreme Court requires objective, competent medical proof of emotional distress “if Section 46 of the restatement is to be accepted in this Commonwealth.” Id., 515 Pa. at 197, 527 A.2d at 995.

Kazatsky makes clear that the tort of intentional infliction of emotional distress is not recognized in Pennsylvania. For this reason the complaint in the instant case fails to state a cause of action. See Daughen v. Fox, 372 Pa.Super. 405, 411-412, 539 A.2d 858, 861 (1988) (Cavanaugh, J.) (in light of Kazatsky, the Superior Court is reluctant to accept Section 46 of the restatement).

Further, we are not inclined to embrace Section 46 of the restatement under the circumstances of the instant case. As the Supreme Court in Kazatsky instructed, Section 46 of the restatement would not be adopted where the plaintiff had failed to establish a right of recovery under the terms of that provision. Kazatsky, 515 Pa. at 185, 527 A.2d at 989. Having carefully examined the complaint in the instant case, we likewise conclude that no such cause of action is established here. The averments in appellant’s second amended complaint, if proven, simply fail to satisfy the standard identified in Kazatsky which requires allegations of an emotional injury due to a tortfeasor’s “outrageous” conduct. Simply stated, neither the degree of “outrageousness” in the defendants’ conduct nor the nature and extent of the emotional injuries alleged justifies a finding of liability and an award of damages in the instant case. See Daughen, supra, 372 Pa.Super. at 417, 539 A.2d at 864 (no cause of action stated under Section 46 where it was alleged the defendant operated on a family pet based upon another animal’s X-ray and then failed to provide the pet with proper medical treatment); Buczek v. First National Bank of Mifflintown, 366 Pa.Super. 551, 531 A.2d 1122 (1987) (affirming the dismissal of a cause of action for intentional infliction of emotional distress where the requisite “outrageous” conduct was not alleged). In the absence of sufficient allegations for which the law permits recovery, the count in the complaint for intentional infliction of emotional distress was properly dismissed.

We also affirm the dismissal of the count for civil conspiracy. “Absent a civil cause of action for a particular act, there can be no cause of action for civil conspiracy to commit that act.” Pelagatti v. Cohen, 370 Pa.Super. 422, 432, 536 A.2d 1337, 1342 (1987).

Order affirmed.

MELINSON, J., filed a concurring statement.

MELINSON, Judge,

concurring:

I disagree with the majority’s interpretation of Kazatsky v. King David Memorial Park, Inc., 515 Pa. 183, 527 A.2d 988 (1987). The majority states that Kazatsky “makes clear that the tort of intentional infliction of emotional distress is not recognized in Pennsylvania.” In Kazatsky, the Supreme Court of this Commonwealth held that a plaintiff must present competent medical evidence of intentional infliction of emotional distress. See Houston v. Texaco, Inc., 371 Pa.Super. 399, 538 A.2d 502 (1988).

This disagreement regarding Kazatsky notwithstanding, appellants have failed to allege, in their second amended complaint, competent medical evidence of emotional distress. Consequently, they have not made out a cause of action for the intentional infliction of emotional distress.

For the above-mentioned reasons, I respectfully concur in the result reached by this court.

      . Appellants sold their unit in the building in June of 1986.

      . The complaint is 45 pages in length and contains 202 paragraphs.


author: DEL SOLE, Judge:

text:
    542 A.2d 140
    George F. SMITHBOWER, Administrator of the Estate of Timothy W. Smithbower, Deceased, on Behalf of the Next of Kin of Timothy W. Smithbower, Deceased and George F. Smithbower, Administrator of the Estate of Timothy W. Smithbower, Deceased, on Behalf of the Estate of Timothy W. Smithbower, Deceased and Cathy S. Smithbower, Administratrix of the Estate of George A. Smithbower, Deceased, on Behalf of the Next of Kin of George A. Smithbower, Deceased, and Cathy S. Smithbower Administratrix of the Estate of George A. Smithbower, Deceased, on Behalf of the Next of Kin of George A. Smithbower, Deceased and Catherine F. Boland, Administratrix of the Estate of Gregory J. Boland, Deceased, on Behalf of the Next of Kin of Gregory J. Boland, Deceased, and Catherine F. Boland, Administratrix of the Estate of Gregory J. Boland, Deceased, on Behalf of the Estate of Gregory J. Boland, Deceased, Appellants, v. SOUTHWEST CENTRAL RURAL ELECTRIC COOPERATIVE, INC., Pennsylvania Electric Company, a Corporation and Cresson Feed Mill, Inc., t/d/b/a Hines Equipment, a Corporation, Appellees, v. NEW IDEA FARM EQUIPMENT, A DIVISION OF AVCO CORPORATION, Appellee, v. SPEED KING MANUFACTURING COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 24, 1988.
    Filed May 25, 1988.

      Raymond J. Zadzilko, Edensburg, for appellants.
    Louis C. Long, Pittsburgh, for Pennsylvania Elec. Co., appellee.
    Before McEWEN, DEL SOLE and JOHNSON, JJ.
   DEL SOLE, Judge:

This is an appeal from Judgment entered August 27, 1987, in the Court of Common Pleas of Cambria County, Civil Division. We affirm.

The instant case was filed by and on behalf of the estates and the next of kin of Timothy W. Smithbower, George A. Smithbower and George J. Boland, who were electrocuted and died when a portable grain auger (elevator) which they were moving came into contact with a high voltage overhead distribution power line. The accident occurred September 21, 1982, at the Robert C. Varner farm located in East Carroll Township, Cambria County, Pennsylvania.

Appellants filed suit against: Southwest Central Rural Electric Cooperative, (hereinafter referred to as “Southwest Central”), whose distribution line the grain auger touched; Pennsylvania Electric Co., (hereinafter referred to as “Pennsylvania Electric”), which sold the electricity to Southwest Central; and Cresson Feed Mill, Inc., t/d/b/a Hines Equipment, the company which sold the auger to Robert Varner. New Idea Farm Equipment, a Division of AVCO Corporation, and Speed King Manufacturing Co., distributor and manufacturer of the auger, were later joined in the suit as additional defendants.

Pennsylvania Electric filed a motion for summary judgment which was granted. This appeal followed.

The bases of liability asserted against Pennsylvania Electric are: (1) absolute liability, Restatement (Second) of Torts §§ 519, 520 (1977); (2) strict liability in tort, Restatement (Second) of Torts § 402 A (1965); and (3) negligence.

Summary judgment may be granted under Pa.R.C.P. 1035(b) which provides, in pertinent part:

The judgment sought shall be rendered if the pleadings, depositions, answer to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party in entitled to a judgment as a matter of law.

See also Ferguson v. King, 362 Pa.Super. 543, 524 A.2d 1372 (1987).

In the court’s determination of whether a motion for summary judgment should be granted, the following principles have application:

The moving party bears the burden of demonstrating that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Thompson Coal Company v. Pike Coal Company, 488 Pa. 198, 412 A.2d 466 (1979); Weiss v. Keystone Mack Sales Inc., 310 Pa.Super. 425, 456 A.2d 1009 (1983). In determining whether the moving party has met this burden, the court must examine the record in the light most favorable to the non-moving party, giving that party the benefit of all reasonable inferences. Thompson Coal Company v. Pike Coal Company, supra; Schacter v. Albert, 212 Pa.Super. 58, 239 A.2d 841 (1968). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Thompson Coal Company v. Pike Coal Company, supra; Breslin v. Ridarelli, 308 Pa.Super. 179, 454 A.2d 80 (1982). Summary judgment should be granted only in the clearest case, where the right is clear and free from doubt. Thompson Coal Company v. Pike Coal Co., supra; Weiss v. Keystone Mack Sales, Inc., supra.

Bertani v. Beck, 330 Pa.Super. 248, 251-52, 479 A.2d 534, 535-36 (1984). See also, Ferguson v. King, supra.

Initially, Appellant contends that the supplying as well as the transmission of high voltage electric current is an abnormally dangerous activity which exposes Pennsylvania Electric, the supplier of electrical current, to strict liability for harm therefrom under Restatement (Second) of Torts §§ 519-520.

Restatement (Second) of Torts §§ 519-520 provides:
(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.
Section 520. Abnormally Dangerous Activities In determining whether an activity is abnormally dangerous, the following factors are to be considered:
(a) existence of high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.

Appellate courts in Pennsylvania have not addressed the issue of whether the sale of electricity at an unmarketable voltage constitutes an abnormally dangerous activity. We find no Pennsylvania case law which extends liability arising from abnormally dangerous activities to electricity.

Thus, we look to our sister states for guidance and find that the courts have consistently held that the use and maintenance of high voltage electrical transmission lines by electric companies does not constitute an abnormally dangerous activity. Clearly, most of the courts rejected the imposition of absolute liability against an electric company. See Nelson v. Commonwealth Edison Co., 124 Ill.App.3d 655, 80 Ill.Dec. 401, 465 N.E.2d 513 (1984). (Plaintiff injured when touching a 7,200 volt transmission line. Electric suppliers not strictly liable since electricity necessary for existence). New Meadows Holding Co. v. Washington Water Power Co., 34 Wash.App. 25, 659 P.2d 1113 (1983), aff’d 102 Wash.2d 495, 697 P.2d 212 (1984). (Decedent came into contact with defendant utility’s uninsulated power line. Court found that activity did not constitute abnormal activity and that that value to the community outweighed the danger present). Hedges v. Public Service Co. of Indiana, 396 N.E.2d 933 (Ind.App.1979) (Injuries sustained as the result of coming in contact with high voltage transmission wires. Not strictly liable as abnormally dangerous activity). Wirth v. Mayrath Industries, Inc., 278 N.W.2d 789 (N.D.1979) (Farmer electrocuted when he was operating a grain auger which came into contact with an uninsulated high voltage power line. Court deferred the ultimate decision of the issue of abnormally dangerous activity to the legislature because of severe economic consequences). Bosley v. Central Vermont Public Service Corp., 127 Vt. 581, 255 A.2d 671 (1969). (No strict liability where nine-year-old boy came in contact with 4,100 volt carrying wires. Electric company not strictly liable).

Therefore, after careful study of the decisions of the courts of our sister states, we too hold that the provision and maintenance of electrical transmission lines and the transmission of high voltage electricity by electric companies do not constitute abnormally dangerous activities and reject the imposition of absolute liability against electric companies in this area.

Next, appellant contends that Pennsylvania Electric is strictly liable under the Restatement (Second) of Torts § 402A. (1966) because it sold electrical power.

In Schriner v. Pennsylvania Power & Light Co., 348 Pa.Super. 177, 184-85, 501 A.2d 1128, 1131-32 (1985), this Court held:

Pennsylvania case law has expressly recognized the doctrine of strict liability as set forth under Restatement (Second) of Torts § 402A. See Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). Section 402A provides:
§ 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user of consumer has not bought the product from or entered into any contractual relation with the seller.
When we distill § 402A into its constituent elements, we find that the following are necessary to an appropriate application of this section:
(1) a product;
(2) a sale of that product;
(3) a user or consumer;
(4) a defective condition, unreasonably dangerous; and
(5) causation that the product caused physical harm to the ultimate user or consumer, or to his property.
If any of these requisite elements remains unsatisfied, § 402A has no applicability.

The Schriner court ruled that electricity can be a 402A product. 348 Pa.Super. at 187, 501 A.2d at 1133. The Schriner court in discussing the sale of electricity, stated:

With a product such as electricity, a literal “sale” of the product may not be required; however, courts willing to call electricity a product have been consistent in holding that the electricity must have been placed into the stream of commerce before § 402A strict liability can attach, (citations omitted).

348 Pa.Super. at 187, 501 A.2d at 1133. The Schriner court further stated:

Entry of the electricity into the stream of commerce has been deemed to occur, generally, when the electricity leaves the transmission lines and passes through the customer’s meter (citations omitted).

348 Pa.Super. at 187, 501 A.2d at 1133.

The facts of the instant case show that, on September 21, 1982, while the three (3) victims, Timothy W. Smithbower, George A. Smithbower and George Boland, were attempting to turn and move the grain auger, a spark, current or electrical charge was transmitted from high voltage electrical transmission lines into the auger which was held or touched by each of the victims. The current caused the three (8) men to receive a violent electric shock and sustain injuries resulting in their deaths. (Plaintiffs Complaint, pp. 5-6, paragraphs 16-18). The transmission lines in question were located near the buildings at the Varner farm.

In the instant case, electricity had not yet been placed into the stream of commerce since it had not yet passed through the meter at the Varner farm. Although a sale of electricity took place between Pennsylvania Electric and Southwest Central, we find that, because the electricity had not yet left the transmission lines, a sale of the electricity as a 402A product had not occurred. Schriner v. Pennsylvania Power & Light Co., supra. We agree with the trial court that since the “sale” requirement under Restatement (Second) of Torts § 402A had not been completed in the instant case, strict liability cannot be imposed. However, general concepts of negligence are still applicable.

Appellant’s allege that Pennsylvania Electric was negligent in failing to inspect Southwest Central’s power lines.

However, we find that the duty to inspect and maintain power lines rest with the company in possession of said power lines, i.e., in this. case, Southwest Central. See Meehan v. Philadelphia Electric Co., 424 Pa. 51, 225 A.2d 900 (1967); Yoffee v. Pennsylvania Power and Light Co., 385 Pa. 520, 123 A.2d 636 (1956). Appellants themselves contend:

[A]t all times relevant hereto the aforementioned high voltage electrical transmission lines and equipment were under the possession, operation and control of the agents, workmen, servants and/or employees of the defendant, Southwest Central Rural Electric Cooperative, Inc., acting within the scope of their employment.

(Plaintiff’s Complaint, p. 3, paragraph 6).

In addition, even though Pennsylvania Electric may have reserved the right to inspect Southwest Central’s power lines, there is no evidence to show that Pennsylvania Electric’s failure to inspect the lines increased the risk of harm or that anyone relied on Pennsylvania Electric’s right to conduct such inspections. Restatement (Second) of Torts §§ 323, 324A.

Judgment affirmed.

      . We note that the order granting summary judgment was dated April 8, 1987, and the appeal was filed August 27, 1987. While at first blush the appeal appears untimely, we note that the order was not docketed until July 29, 1987. We further note that on August 27, 1987, a praecipe for judgment was filed, and the docket stated "Judgment entered and indexed on Judgment index docket.”
      We caution the trial court and counsel that an order granting summary judgment is immediately appealable. A praecipe for judgment is not necessary. Nothing in the record explains the delay between the order and its entry. The appeal is properly before us since a final order is deemed entered on the date docketed. See Pa.R.Civ.P. 236 and U.S. Nat. Bank in Johnstown v. Johnson, 321 Pa.Super. 352, 468 A.2d 515 (1983), aff’d 506 Pa. 622, 487 A.2d 809 (1985).


author: POPOVICH, Judge:

text:
    542 A.2d 144
    James DUFFY, Administrator of the Estate of Michael Blazowich, Appellant, v. NATIONWIDE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued March 17, 1988.
    Filed May 26, 1988.

      JoAnne Weber, Pittsburgh, for appellant.
    Alan H. Perer, Pittsburgh, for appellee.
    Before TAMILIA, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal from the order (later reduced to judgment) of the Court of Common Pleas of Allegheny County entering summary judgment against the appellant, James Duffy, Administrator of the Estate of Michael Blazowieh. We affirm in a case of first impression.

As an appellate court, our role in reviewing an order granting a summary judgment has been oft-stated; e.g.:

Summary judgment is made available by Pa.R.C.P. 1035 when the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits considered together reveal no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Husak v. Berkel, Inc., 234 Pa.Super. 452, 341 A.2d 174 (1975). To determine the absence of a genuine issue of material fact, we must view the evidence in the light most favorable to the non-moving party and any doubts must be resolved against the entry of judgment. Id. In so doing, we accept as true all well-pleaded facts in appellant’s pleadings and give appellant the benefit of all reasonable inferences to be drawn therefrom. Spain v. Vicente, 315 Pa.Super. 135, 461 A.2d 833 (1983). Summary judgment is appropriate only in those cases which are clear and free from doubt. Id.

Harris v. Easton Publishing Co., 335 Pa.Super. 141, 152, 483 A.2d 1377, 1382-83 (1984).

Viewed under the aforementioned standard, the undisputed facts are that the appellant’s decedent, while walking across a roadway, was struck and killed by the driver (Robert Crupié, Jr.) of a vehicle insured with the appellee, Nationwide Insurance Company. The policy (at Option 3) specifically limited payment of Accidental Death Benefits (ADB) to the named insured (Crupié) and his relatives. Because the appellant’s decedent did not come under either heading, a complaint was filed seeking to recover ADB under the policy of insurance issued to Crupié. Each party filed a motion for summary judgment. Thereafter, the court below entered judgment in favor of the appellee and against the appellant. With the reduction of the order to judgment, an appeal to this Court was perfected.

The sole issue for our consideration is whether the policy of insurance issued to Crupié by the appellee, limiting, as it does, the recovery of ADB to the named insured and his relatives is at odds with the applicable provisions of the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. § 1701 et seq. (Supp. 1987-88).

We start our inquiry by noting our agreement with the appellee that the interpretation of an insurance policy is a question of law for the Court. Adelman v. State Farm Mutual Auto. Ins. Co., 255 Pa.Super. 116, 386 A.2d 535, 538 (1978). Having so stated, we note that “where ... the language of [a] ... contract [of insurance] is clear and unambiguous, a court is required to give effect to that language.” Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 306, 469 A.2d 563, 566 (1983).

As mentioned previously, the insurance policy issued by the appellee restricted its payment of ADB to Crupié and his relatives. The appellant, unable to overcome the obvious clear and unambiguous language relating to the payment of ADB, argues that the Motor Vehicle Financial Responsibility Law allows for a “pedestrian”, like the decedent, to recover ADB notwithstanding language to the contrary in the policy of insurance. We disagree.

The Motor Vehicle Financial Responsibility Law calls for those benefits which must (“shall”) be included in coverage by an insurance company operating in this Commonwealth, i.e., Section 1711, titled “Required benefits”, reads:

An insurer issuing or delivering liability insurance policies covering any motor vehicle of the type required to be registered under this title, except recreational vehicles not intended for highway use, motorcycles, motor-driven cycles or motorized pedalcycles or like type vehicles, registered and operated in this Commonwealth, shall include coverage providing a medical benefit in the amount of $10,000, an income loss benefit up to a monthly maximum of $1,000 up to a maximum benefit of $5,000 and a funeral benefit in the amount of $1,500, as defined in section 1712 (relating to availability of benefits), with respect to injury arising out of the maintenance or use of a motor vehicle. The income loss benefit provided under this section may be expressly waived by the named insured provided the named insured has no expectation of actual income loss due to age, disability or lack of employment history.

The Act of February 12, 1984, P.L. 26, No. 11, § 3, as amended February 12, 1984, P.L. 53, No. 12, § 3, 75 Pa.C. S.A. § 1711 (Supp. 1987-88). We next observe that provisions are made for the allowance of “Optional” benefits to be offered by an insurer to its insured at Section 1712; it reads:

An insurer issuing or delivering liability insurance policies covering any motor vehicle of the type required to be registered under this title, except recreational vehicles not intended for highway use, motorcycles, motor-driven cycles or motorized pedalcycles or like type vehicles, registered and operated in this Commonwealth, shall make available for purchase first party benefits with respect to injury arising out of the maintenance or use of a motor vehicle as follows:
(1) Medical benefit.—Coverage to provide for reasonable and necessary medical treatment and rehabilitative services, including, but not limited to, hospital, dental, surgical, psychiatric, psychological, osteopathic, ambulance, chiropractic, licensed physical therapy, nursing services, vocational rehabilitation and occupational therapy, speech pathology and audiology, optometric services, medications, medical supplies and prosthetic devices, all without limitation as to time, provided that, within 18 months from the date of the accident causing injury, it is ascertainable with reasonable medical probability that further expenses may be incurred as a result of the injury. Benefits under this paragraph may include any nonmedical remedial care and treatment rendered in accordance with recognized religious method of healing.
(2) Income loss benefit.—Includes the following:
(i) Eighty percent of actual loss of income.
(ii) Reasonable expenses actually incurred for hiring a substitute to perform self-employed services thereby mitigating loss of gross income or for hiring special help thereby enabling a person to work and mitigate loss of gross income.
Income loss does not include loss of expected income for any period following the death of an individual or expenses incurred for services performed following the death of an individual. Income loss shall not commence until five working days have been lost after the date of the accident.
(3) Accidental death benefit.—A death benefit paid to the personal representative of the insured, should injury resulting from a motor vehicle accident cause death within 24 months from the date of the accident.
(4) Funeral benefit.—Expenses directly related to the funeral, burial, cremation or other form of disposition of the remains of a deceased individual, incurred as a result of the death of the individual as a result of the accident and within 24 months from the date of the accident.
(5) Combination benefit.—A combination of benefits described in paragraphs (1) through (4) as an alternative to the separate purchase of those benefits.

The Act of February 12, 1984, P.L. 26, No. 11, § 3, as amended February 12, 1984, P.L. 53, No. 12, § 3, 75 Pa.C. S.A. § 1712 (Supp.1987-88).

When one aligns Sections 1711 and 1712, it becomes obvious that an insurer need only offer an insured the availability of ADB if he/she wishes such coverage. It is not mandated by statute that ADB be included in all policies sold in Pennsylvania. What we garner from this dichotomy, between mandatory and optional benefits, is the flexibility afforded the insurer to formulate a policy of insurance which limits its exposure to liability by restricting those who may recover “benefits” against it.

In other words, the insured (under Section 1712) must be given the opportunity to avail himself of “first party benefits”, which merely adds ADB to the list of benefits required to be included in a policy of insurance by Section 1711. However, albeit the Legislature accords “a person who is not an occupant of a motor vehicle” the right to recover “first party benefits” from “the policy of any motor vehicle involved in the accident”, it is conditioned upon the injured person seeking “first party benefits against applicable insurance coverage.” 75 Pa.C.S.A. § 1713(a) (Supp1987-88) (Emphasis added).

We interpret the preceding to mean, giving the statute a reading which gives effect to each provision (1 Pa.C.S. § 1921), that the insurance policy under which an injured party seeks to recoup ADB must have him/her listed as a party-beneficiary. Otherwise, absent such language in the policy, one cannot argue that the insurance document has coverage “applicable” to the injured party. See Section 1713(a).

At bar, as was stated supra, the policy sold to Crupié listed only him and his relatives as eligible candidates for recovery of ADB. We do not find this to be violative of the Motor Vehicle Financial Responsibility Law since ADB is defined as:

A death benefit paid to the personal representative of the insured, should injury resulting from a motor vehicle accident cause death within 24 months from the date of the accident.

75 Pa.C.S.A. § 1712(3) (Supp.1987-88) (Emphasis added). As noted by the court below on this point:

Plaintiff, although a personal representative, [sic] is not a personal representative of the insured.
Moreover, when the legislature intended broader coverage, it well knew how to provide for it. In the very next subsection, § 1712(4), the language refers not to the personal representative of the insured, but to a “deceased individual”.
“(4) Funeral benefit.
Expenses directly related to the funeral, burial, cremation or other form of disposition of the remains of a deceased individual____”
Not only would Plaintiff’s argument contravene accepted principles of statutory construction, but it would eliminate the carefully crafted distinction between required benefits in § 1711 and optional benefits in § 1712. For if § 1713 mandates payment of accidental death benefits in all cases, then such benefits are no longer optional.

(Lower Court Opinion at 3) (Emphasis in original)

We do not take odds with the analysis utilized by the court below; in fact, we embrace it by affirming the order granting summary judgment in favor of the defendant.

Judgment affirmed.