author: PER CURIAM: PRICE, Judge,

text:
    445 A.2d 744
    Veronica MANCINE, Appellant, v. CONCORD-LIBERTY SAVINGS AND LOAN ASSOCIATION, Successor to Hibernian Savings and Loan Association (Successor to Hibernian Building and Loan Association).
    Superior Court of Pennsylvania.
    Argued April 15, 1980.
    Filed April 30, 1982.

      Charles E. McKissock, Pittsburgh, for appellant.
    R. C. Reithmuller, Pittsburgh, for appellee.
    Before PRICE, BROSKY and MONTGOMERY, JJ.
   PER CURIAM:

Appellant instituted an action by a complaint and an amended complaint in assumpsit against appellees for damages for the unlawful entry of judgment, for the wrongful malicious and fraudulent dispossession of appellant from her home, for loss of her belongings, for the rental value of her home, for the fair market value of her home, for the loss to appellant’s reputation, and for exemplary and punitive damages. Preliminary objections of defendant were overruled.

The case proceeded to trial before court and jury. The judgment by confession against Rose Startari, a dead person was void. The court incorrectly held that a “confession of judgment upon a warrant of attorney after the death of the obligor makes the judgment voidable as between the obligor and obligee not void. The lower court erroneously applied the Act of 1705, 1 SmL. 57, Sec. 9, 12 P.S. 2448 and 21 P.S. 795. This Act is limited to voidable judgments, not void judgments.

Appellant filed a timely motion for a new trial and raised, inter alia, that the court erred in applying the aforesaid Act, refusing to allow appellant to prove her offer of proof of damages, and that the Act of 1705, supra., is inapplicable and unconstitutional. The court having denied appellant’s motion for a new trial, an appeal was taken to this court.

We reverse.

On September 17, 1969, appellee confessed judgment in the amount of $3,824.22 at D.S.B. 4069 October 1969 against Rose Startari and on the same day, caused a writ of execution at # 577 October 1969, to issue and subsequently sold the property of Rose Startari for $1,699.52.

Rose Startari died November 13, 1966. Veronica Mancine, a daughter of Rose Startari, acquired the property from all her brothers and sisters by deed dated April 24,1967, recorded April 25, 1967, Deed Book Volume 4387, Page 145.

Veronica Mancine was in possession of the premises at 5000 Ladora Street, 15th Ward, Pittsburgh, from sometime during her mother’s lifetime until evicted by appellee following the sheriff sale.

The primary object of recording deeds as stated by the Supreme Court is “to give public notice in whom the title resides so that no one may be defrauded by deceptious appearances of title. Salter v. Reed, 15 Pa. 260.

Possession is always constructive notice of the claim of the party in possession. Jamison v. Dimock, 95 Pa. 52. Appellees knew or should have known or could have ascertained that appellant was both the record owner and in possession of the premises prior to and at the time judgment was entered against a dead person.

The judgment entered at DSB 4069 October 1979 on September 17, 1969 against Rose Startari was void. Ladner on Conveyancing, Sec. 12.14 “.. . nor can it be entered after death of the obligor, because the death automatically terminates the warrant of attorney to confess judgment.”

Mr. Justice (later Chief Justice) Eagen held in the case of First Federal Savings and Loan Association of Green County v. Porter, 408 Pa. 236 at 241, 183 A.2d 318 (1962), the following:

Her demise automatically terminated the warrant of attorney to confess judgment: Lanning v. Pawson, 38 Pa. 480 (1861); Kummerle v. Cain, 82 Pa.Super. 528 (1924); Ladiner Conveyancing in Pennsylvania, Section 9.21, Page 256 (3d Ed. 1961).

Volume 22, Judgment—Vales, Section 43. The death of a debtor revokes the warrant of attorney to confess judgment. Hence, a judgment entered on a warrant of attorney after the death of a debtor will be striken off. Lawrence v. Smith, 215 Pa. 534, 64 A. 776 (1900); Commonwealth v. Massi, 225 Pa. 548, 74 A. 419 (1909); Stucker v. Shumaker, 290 Pa. 348, 139 A. 114 (1927); Miller v. Reed, 27 Pa. 244 (1856); Lanning v. Pawson, 38 Pa. 480 (1861); Kountz v. National Transit Company, 197 Pa. 398, 47 A. 350 (1900); Stevenson v. Virtue, 13 Pa.Super. 103 (1900); Kummerle v. Cain, 82 Pa.Super. 528 (1924).

The Act of 1705, supra., limiting appellant’s right to recovery to the amount paid by appellee at sheriff’s sale is not applicable to void judgments.

The judgment under which the sale took place was void and the Act of 1705, supra., was not applicable. Clancey’s v. Jones, 4 Yeates 212 (1805); Burd v. Dansdale, 2 Binn 80 (1809); Vastine v. Fury, 2 S&R 426 (1816); Speer v. Sample, 4 Watts 367 (1835); Camp v. Wood, 10 Watts 118 (1984); Bowen v. Bowen, 6 Watts & S. 504 (1843); Springer v. Brown, 9 Pa. 305 (1848); Wilson v. McCullough, 19 Pa. 77 (1852); Evans v. Meylert, 19 Pa. 402 (1852); Gibson v. Winslow, 38 Pa. 49 (1861); Kinter v. Jenks, 43 Pa. 445 (1863); Bartholomew’s Church v. Wood, 61 Pa. 96 (1863); Hecker v. Haak, 88 Pa. 238 (1879); Caldwell v. Walters, 18 Pa. 79, 6 Harris 79 (1851).

The case of Caldwell v. Walters, 18 Pa. 79 (6 Harris 79) held

A void judgment is one that does not warrant the issuing of an execution; and in the opinion of this court, a sale under it by the sheriff is not protected by the provisions of the 9th section of the Act of 1705. A sheriff’s sale of the land of a decedent on a judgment against an executor de son tort, passes no estate to the purchases: Ness [Nass] v. Van Swearingen [Vanswearingen], 7 S&R 196 [192].

The question whether appellant, an heir of decedent, Rose Startari, the mortgagor, can bring an action for wrongfully confessing judgment against a dead person, Rose Startari, and sell her real property at sheriff sale, has been raised by appellee.

The mortgage and bond were executed by Rose Startari, a widow, mother of appellant, on or about June 7, 1956, who was the then owner in fee of the property which is the subject matter of this litigation. The bond upon which judgment was confessed and the property sold reads, inter alia, “I the said Obligor [Rose Startari] do bind myself, my heirs, executors, administrators and assigns and every one of them, jointly and severally, firmly by these presents.” Rose Startari having died intestate on October 13, 1966, survived by numerous children, all of whom (and their respective spouse) conveyed the property on October 13, 1966 to their sister, Veronica Mancine, daughter of Rose Startari, in fee at Deed Book Volume 4387, page 145. Appellant was in possession of said property until directed by appellee to vacate and" deliver up the premises by virtue of a writ of possession.

As a direct result of the breach of the “bond agreement” between Rose Startari, her heirs and assigns, and the illegal and void judgment by confession, appellant instituted an action in assumpsit for damages for the fair value of her home wrongfully sold by appellee at sheriff’s sale; for damages she incurred because she had to vacate her home; for causing her to give up her belongings and furnishings; for loss of income by way of having to pay room and board at her place of employment; for loss of rental value of her property; for embarrassment and humiliation she suffered; for damage to her reputation.

Appellee contends that the damages sought by appellant for the sheriff sale of her home, etc., were not contractual and appellant does not have the right to maintain a suit in assumpsit.

A mortgage, although in form a conveyance of title, is only security for the payment of money or the performance of another collateral contract. The terms of obligation under the mortgage and the bond accompanying the mortgage continues and are applicable to both parties. At the time in 1969 when appellee illegally and improperly confessed judgment against a dead obligor the power of attorney as part of the bond, had terminated with the death of the obligor. The remaining remedies under the bond and accompanying mortgage continued in full force and effect, which remedies appellee has not sought.

The lower court erroneously limited appellant’s right to money damages equal to the bid price at sheriff’s sale by applying the Act of 1705, supra., which we have herein held was not applicable to void judgments.

The bond binds the obligor her heirs, executors, administrators and assigns and every one of them, jointly and severally, firmly by these presents.

The bond is applicable to the heirs of Rose Startari by its terms and created a contractual relationship between appellant and appellee.

Paul v. Grimm, 165 Pa. 139, 30 A. 721 (1895), holds one may proceed in assumpsit in cases of contract, express or implied.

Dairyman’s Co-operative Sales Association v. McCreary, 132 Pa.Super. 524, 1 A.2d 508, 510, where the court held (page 510), “The damages ordinarily recoverable are those necessarily following the breach, which the party guilty of the breach must be presumed to know would be the probable consequence of his failure: Greenl. Ev. Sec. 253.” This rule is well expressed by Strong, J. in Adams Express Co. v. Egbert, 36 Pa. 360.

In the case of Siegel v. Struble Bros., Inc., 150 Pa.Super. 343, 28 A.2d 352, the court said at 354:

The action here, however, was properly brought in assumpsit though sounding in tort. The gist of the action was defendant’s negligence and though it might have been brought in trespass, the real issue was whether defendant was guilty of neglect in the performance of its contract. Cowan v. Nagel, 89 Pa. Super. 122. Since the damages sustained by plaintiff were forseeable by defendant as the necessary, ordinary and natural consequences of its negligence, plaintiff was entitled to compensatory damages measured by the rule applicable to assumpsit upon breach of contract. The rule, continuing the principle of the leading English case, Hadley v. Barendale, 9 Exch. 341, 5 Eng.Rul. Cases 502, (1854), is thus stated and discussed in Dairyman’s Co-op. Assn. v. McCreary (supra). The damages ordinarily recoverable are those necessarily following the breach, which the party guilty of the breach must be presumed to know would be the probable consequence of his failure. This principle has been followed consistently in many other cases and was adopted in the Restatement, Contracts Sec. 330, as follows: “In awarding damages, compensation is given for only those injuries that the defendant had reason to foresee as a probable result of his breach when the contract was made. If the injury is one that follows the breach in the usual course of events, there is sufficient reason for the defendant to foresee it; otherwise, it must be shown specifically that the defendant had reason to know the facts and to foresee the injury.”

On September 15, 1975, an estate was raised for Rose Startari, deceased, in the Orphans’ Court Division of Allegheny County and an Administrator was duly appointed. On October 17, 1975, the Administrator filed a petition and obtained a rule to show cause upon the appellee herein why the judgment entered at DSB October Term 1969 on September 19, 1969 should not be set aside. The petition of the Administrator of the Estate of Rose Startari alleged, inter alia, that Rose Startari died on October 13,1966 and that the warrant of attorney contained in the bond accompanying the mortgage and by which judgment had been entered expired with the death of Rose Startari. On February 25, 1976, the rule to show cause was made absolute and the judgment was set aside. The appellant filed her complaint in assumpsit while the record of the proceedings relating to the sale of the mortgaged property revealed a judgment and execution which on the face thereof was without error. In the complaint in assumpsit as originally filed, the plaintiff sought an accounting for any sum of money received or that should have been received from the sale of the property in excess of the balance due appellee and for judgment in an amount of not less than $11,000, the fair market value of the property, with interest from November, 1969. Appellee filed preliminary objections in the nature of a demurrer and a motion for a more specific pleading.

The lower court overruled the demurrer and directed appellant to file a more specific pleading to paragraph 30 (as to damages) of the amended complaint.

Appellant filed an amended complaint in assumpsit in which she alleged a breach of the agreement and confessing judgment on the bond; in securing the sale of the premises by the Sheriff of Allegheny County based on the void judgment.

A mortgage, although in form a conveyance of title, is only security for the payment of money or the performance of another collateral contract. When the property which is subject to the mortgage is transferred without payment of the mortgage, the property in the hands of the transferee continues to be security for the performance of the obligation, and for any default the mortgagee may seize and sell the property in the hands of the transferee. The contractual relationship between mortgagee and transferee continues by operation of law. The proceedings for obtaining judgment on the bond was illegal and void. The lower court erred by holding that the judgment on the bond was voidable. The court improperly relied on Section 9 of the Act of 1705 supra. The trial court erred in refusing the appellant’s offer of proof of damages and limiting the proof as provided in the Act of 1705 supra.

Appellee urges that appellant does not have a right to a suit in assumpsit for wrongfully taking of the property, as appellant’s claim is not based on a contract.

“The Rule is broadly stated to permit an amendment ‘at any time’ which follows the prior practice. The period of the statute of limitations is no bar to the amendment of a complaint, where there is no change in the cause of action and no new party is added.” Goodrich Amram, Yol. 2, page 363.

Pa.R.C.P. 1020 permits joinder of Assumpsit and Trespass and no election of remedies between assumpsit and trespass shall be required at any time. All causes of action shall be tried together, unless otherwise ordered by the court. “These rules reflect the general principle that plaintiffs should not be forced to elect a particular theory in pursuing a claim and avoids the attendant possibility that meritorious claims will foil because the wrong legal theory was chosen.” Schreiber v. Republic Intermodal Corp., 473 Pa. 614, 375 A.2d 1285 (1977). Crumbston v. Sheehan, 100 P.L.J. 307 (1953). The fact that the appellee has labeled his action “assumpsit” is of no importance. The court will examine the complaint in any case to determine the true nature of the action. Dishig v. Smilek, C. P. Montgomery County, Northampton County, Nov. Term 1948, No. 96 (1949).

Pa.R.C.P. Rule 1033 provides:

A party either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted.

The right to amend should be liberally granted at any stage of the proceedings unless there is an error of law or resulting prejudice to an adverse party Kilian v. Allegheny County Distributors, Inc., 409 Pa. 344, 185 A.2d 517 (1962). As Mr. Chief Justice Horace Stern held in the case of Bruker v. Carlisle Borough, 376 Pa. 330, 102 A.2d 418 (1954):

We conclude, therefore, that the form of action here employed was permissible and we might add that, even if it were otherwise, Courts have the power in any stage of the proceedings to permit a change in the form of action if the same is necessary for a proper decision of the cause upon its merits. [Citations omitted].

In conclusion, we hold the lower court improperly applied the Act of 1705 and limited damages to restitution of the sale price obtained at the sheriff sale. This was, therefore, a wrongful foreclosure.

Damages in assumpsit actions are not only those flowing from the breach thereof, but if the breach is tortious, such damages sounding in tort may also be recovered in assumpsit actions.

We remit this case so that it may be tried in such manner so as not to intrude Sec. 9 of the Act of 1705, supra.

The Judgment of the lower court is reversed and this case is remanded for trial. Appellant is permitted to prove damages in assumpsit not limited to Section 9 of the Act of 1705 1 SmL 57 (12 P.S. 2448 and 21 P.S. 795).

PRICE, J., files a concurring opinion.

PRICE, Judge,

concurring:

Although I concur in the majority’s conclusion that Section 9 of the Act of 1705 was erroneously applied, I do so for reasons other than those found controlling by the majority. I would also hold that, while appellant did not err in bringing a cause of action in assumpsit, the cause of action cannot properly be predicated on a breach of contract theory-

Appellant’s mother, Rose Startari, owned certain real estate at 5000 Ladora Street until her death on October 13, 1966. On May 7, 1956, she executed a mortgage on the real estate to secure a loan of $3,600.00 from Hibernian Savings and Loan Association, predecessor to appellee, Concord-Liberty Savings and Loan Association. Simultaneously, Mrs. Startari executed a bond containing a warrant of attorney to confess judgment, should she default on the mortgage payments.

Mrs. Startari died intestate on October 13, 1966. Several heirs, including appellant, Veronica Mancine, survived her. The heirs jointly conveyed their interest in the real property to appellant on April 24, 1967. Accordingly, appellant took title subject to the mortgage held by appellee, Concord-Liberty Savings and Loan Association (hereinafter referred to as Concord-Liberty). Veronica Mancine later defaulted on the mortgage payments and, on September 18, 1969, Concord-Liberty wrongfully confessed judgment against Rose Startari, the decedent, based on her warrant of attorney. A writ of execution was issued the same day judgment was entered and, on November 3, 1969, Concord-Liberty bought the property at a sheriff’s sale for $1,699.52, the amount of costs and taxes.

Two separate actions arose out of the wrongful confession of judgment. First, appellant instituted an action in assumpsit on February 3,1975. By complaint and an amended complaint appellant sought damages for the unlawful entry of judgment, the wrongful, malicious, and fraudulent dispossession of appellant from her home, the loss of her personal belongings, the rental value of her home, the injury to appellant’s reputation, and for exemplary and for punitive damages.

Following the institution of appellant’s assumpsit action, an estate was raised for Rose Startari and Jerry Mancine was appointed administrator. The administrator petitioned to set aside the judgment on the grounds that the warrant of attorney expired upon Mrs. Startari’s death, that the claim should have been presented to the estate of Rose Startari, and that the estate of Rose Startari was no longer the obligor. On February 25, 1976, while appellant’s assumpsit action was still pending, the trial court granted the estate’s petition and ordered that the judgment be set aside.

Appellant’s assumpsit action proceeded to trial on January 18, 1979, at which time the parties stipulated to the facts pertaining to liability. Defendant-appellee then moved to limit damages as prescribed by Section 9 of the Act of 1705, which provides in pertinent part:

If any of the said judgments, which do or shall warrant the awarding of said writs of execution . . . shall at any time hereafter, be reversed for any error or errors, then . . . none of the said lands . . . shall be restored, nor the sheriffs sale or delivery thereof avoided, but restitution, in such cases, only of the money or price for which such lands were or shall be sold.

Act of 1705, Sm.L. 57, Sec. 9; 12 P.S. 2448 and 21 P.S. 795.

The court granted appellee’s motion and directed a verdict for appellant for the amount of $1,699.52, the sale price of the property. Thereafter, appellant filed a motion for a new trial, which the court denied. This appeal is from the judgment entered on the verdict.

Appellant advances three grounds on appeal. First, appellant argues that Section 9 of the Act of 1705 was inapplicable at the time of trial because it was repealed before that date; second, that the Act was inapplicable because appellee failed to comply with Section 6 of the Act which requires that the real party in interest be served with notice of the proceeding; and third, that she should have been permitted to prove damages sounding in tort in the assumpsit action.

Appellant’s contention that Section 9 of the Act of 1705 was inapplicable because it was repealed before trial is meritless. The Judicial Code provides, in part, that “[t]he repeal of any civil provisions of a statute shall not affect or impair any act done, or right existing or accrued, or affect any civil action pending to enforce any right under the authority of the statute repealed.” Act of Dec. 6,1972, P.L. 1339, § 3; 1 Pa.C.S.A. § 1976(a). Because all acts giving rise to appellant’s cause of action, including the institution of the assumpsit action, occurred before the Act was repealed, the repeal of the Act of 1705 has no bearing on the outcome of the case.

Appellant also argues that Section 9 is inapplicable because appellee failed to give appellant notice of the foreclosure proceedings but, instead, entered judgment against the decedent on an invalid warrant of attorney. The majority reasons that the judgment was void because it was entered on the authority of a power of attorney issued by a dead person and concludes, therefore, that Section 9 of the Act is inapplicable because it only applies to voidable, not void, judgments. To be sure, the law is well-settled that the death of a debtor revokes the warrant of attorney to confess judgment and that any judgment entered on the warrant of attorney after the debtor’s death will be stricken off. First Federal Savings and Loan Assoc. of Greene County v. Porter, 408 Pa. 236, 183 A.2d 318 (1962); Kountz v. National Transit Co., 197 Pa. 398, 47 A. 350 (1900); Kummerle v. Cain, 82 Pa.Superior Ct. 528, (1924); Stevenson v. Virtue, 13 Pa.Superior Ct. 103 (1900). The majority is also correct in stating that Section 9 has been interpreted as applying to voidable judgments only, and not to void judgments. Hecker v. Haak, 88 Pa. 238 (1879); Gibson v. Winslow, 38 Pa. 49 (1861); Caldwell v. Walters, 18 Pa. 79 (1851); Ness v. Van Swearingen, 7 S & R 196. However, the majority fails to explain why the judgment in this case is void as against appellant. The law cited by the majority in support of its conclusion states merely that a judgment entered on a warrant of attorney after the obligor’s death will be stricken off. That the judgment should be stricken does not necessarily mean it is void.

The better reason for finding Section 9 of the Act inapplicable is that appellee failed to give notice of the foreclosure proceedings to appellant who, being the true owner, was the real party in interest. Section 6 of the Act of 1705 provides, in pertinent part, that

[wjhere default or defaults have been or shall be made or suffered by any mortgagor or mortgagors of any lands, tenements or other hereditaments within this province, or by his, her or their heirs, executors, administrators and assigns, of or in payment of the mortgage money, or performance of the condition or conditions which they or any of them should have paid or performed, or ought to pay ... that in every such case, it shall and may be lawful to and for the mortgagee or mortgagees, . .. and his, her and their heirs, executors, administrators or assigns, at any time after the expiration of twelve months next ensuing the last day whereon the said mortgage money ought to be paid, ... to sue forth a writ or writs of scire facias, which the clerk of the court of common pleas for the county or city where the said mortgaged lands or hereditaments lie, is hereby empowered and required to make out and dispatch, . . . requiring him, ... to make known to the mortgagor or mortgagors, his, her or their heirs, executors or administrators, that he or they be and appear before the magistrates, judges or justices of the said court or courts, to show if anything he or they have to say wherefore the said mortgaged premises ought not to be seized and taken in execution for payment of the said mortgage money, with interest, or to satisfy the damages which the plaintiff in such scire facias shall, upon the record, suggest for the breach or nonperformance of the said conditions. ...

Act of 1705, 1 Sm.L. 57, § 6, 21 P.S. § 791. The procedure for mortgage foreclosure is a creature of statute and, therefore, the requirements must be strictly followed. Federal Land Bank of Baltimore v. King, 294 Pa. 86, 143 A. 500 (1928).

Clearly, Concord-Liberty failed to give appellant notice as is required by the Act. Moreover, Concord-Liberty did not proceed by a writ of scire facias as required by Section 6. Rather, appellee improperly proceeded by writ of fieri facias, see Act of May 6, 1929, P.L. 1557, § 1; 1951, Sept. 26, P.L. 1450, No. 352, § 1; 21 P.S. § 804, and confessed judgment on the invalid warrant of attorney. Having failed to comply with the strict mandates of the Act by failing to give appellant notice and an opportunity to defend, Concord-Liberty cannot now use Section 9 of the Act to its advantage. For that reason, I concur in the result reached by the majority to remand this case to be tried without application of Section 9 of the Act of 1705.

Finally, appellant argues that she correctly brought her cause of action in assumpsit because, as she states, the action arose from appellee’s bréach of the terms of the mortgage. Furthermore, appellant submits that she is entitled to damages sounding in tort, for the tortious breach of contract. I disagree.

Although appellant should be permitted to maintain the cause of action in assumpsit, it cannot be predicated on a breach of contract theory. The record reveals, by appellant’s own admission, that she breached the terms of the mortgage by defaulting on the payments. Although appellant is correct that appellee wrongfully confessed judgment and issued execution, it is axiomatic that she cannot claim that appellee breached when, in fact, it was appellant who breached.

Because appellee did not breach a contract, appellant cannot allege a tortious breach and, therefore, cannot claim damages sounding in tort. Thus, she is limited to damages in assumpsit.

Accordingly, I would remand this case to permit appellant to prove damages in assumpsit, not limited by Section 9 of the Act of 1705.

      . The judgment, entered by confession based on the warrant of attorney executed by the decedent, was void for the reasons discussed herein.

      . The court did not determine in that action whether the judgment was void or voidable. That determination was unnecessary to resolve the estate’s petition to strike the judgment. The issue whether the judgment was void or voidable arose during Veronica Mancine’s proceedings, which is the subject of this appeal.

      . In her motion for a new trial, appellant argued that the court erred in: (1) limiting damages as prescribed by the Act of 1705, Section 9, (2) denying recovery of damages sounding in tort in an assumpsit action and (3) refusing to allow her to prove her offer of proof of damages.

      . In denying appellant’s motion, the court reasoned that the judgment was voidable rather than void, and that the Act properly applies to voidable judgments. Next, the court declared that appellant, Veronica Mancine, lacked standing to collaterally attack the voidable judgment because only void judgments may be collaterally attacked by third parties. This conclusion is illogical in light of the fact that the court not only exercised jurisdiction over the matter, but also found for appellant. Finally, the trial court held that appellant was not entitled to recover damages sounding in tort in an assumpsit action.

      . Subsection (a) of 1 Pa.C.S.A. § 1976 continues as follows:
      Such action may be proceeded with and concluded under the statutes in existence when such action was instituted, notwithstanding the repeal of such statutes, or such action may be proceeded with and concluded under the provisions of the new statute, if any, enacted.

        Section 9 of the Act of 1705 was repealed June 27, 1978 by the Act of 1978, P.L. 202, No. 53, § 2(a)[7], The disposition of this section to 42 Pa.C.S.A. § 1722 and § 5105(f) reveals that no new statute was enacted to replace the former. Therefore, Section 9 would have been applicable, except for other reasons stated herein. See text infra at 751-753.

      . Appellant’s action went to trial on January 18, 1979. The Act of 1705 was repealed on June 27, 1978. However, the events giving rise to appellant’s claim occurred before June 27, 1978.

      . The purpose of Section 9 of the Act of 1705 is to protect the purchaser’s title in the event of a reversal of judgment under which the sale was made. However, this protection applies only when the judgment is reversed for irregularities or errors. When the judgment under which the sale takes place is not merely voidable, but void, the purchaser’s title is not protected, and Section 9 is deemed inapplicable. See Caldwell v. Walters, 18 Pa. 79 (1851). See also Kinter v. Jenks, 43 Pa. 445 (1863); Gibson v. Winslow, 38 Pa. 49 (1861); Wilson v. McCullough, 19 Pa. 77 (1852).

      . A judgment entered by confession on the authority of a bond accompanying a simple promise to pay money, after the death of the promisor and without an action brought in the promisor’s lifetime is irregular and will be vacated on the application of the legal representatives or heirs of the decedent. Lanning v. Pawson, 38 Pa. 480 (1861); Kountz v. National Transit Co., 197 Pa. 398, 47 A. 350 (1900); Kummerle v. Cain, 82 Pa.Superior Ct. 528 (1924); Sleeper v. Hickey, 26 Pa.Superior Ct. 59 (1904). However, a judgment is not void merely because it is erroneous and subject to be set aside by the court which rendered it or to be reversed by an appellate court. Stevenson v. Virtue, 13 Pa.Superior Ct. 103 (1900).

      . Appellee’s failure to give notice was also in derogation of a fundamental principle of law.
      [w]here the purpose of the proceeding is to obtain a judgment affecting interests in things, notice in some form must be given to the persons whose interests are affected, and they must be given an opportunity to protect their interests. Otherwise the judgment is void as to such persons.

        Restatement, Judgments, § 6, Comment g (emphasis added).

      . A writ of scire facias is “[a] judicial writ, founded upon some matter of record, such as a judgment or recognizance and requiring the person against whom it was brought to show cause why the party bringing it should not have advantage of such record ...” Black’s Law Dictionary 1513 (4th Ed. 1968).

      . A writ of fieri facias is, in practice, “a writ of execution commanding the sheriff to levy and make the amount of a judgment from the goods and chattels of the judgment debtor.” Black’s Law Dictionary 754 (4th Ed. 1968).
      This process is codified at Section 804 of Title 21 of Purdon’s which states:
      No inquisition shall be necessary in connection with the sale of a real estate by the sheriff, upon a writ of fieri facias, issued upon a judgment entered upon a bond or promissory note accompanying a mortgage, secured upon the real estate to be sold; and the sheriff may, after giving notice in the manner now provided by law in cases of sales under writs of venditioni exponas, proceed to sell such real estate upon the said writ of fieri facias without any other writ whatever.
      Act of May 6, 1929, P.L. 1557 § 1; 21 P.S. § 804.
      Appellees proceeded by writ of fieri facias, which was improper and constituted void process because the warrant of attorney upon which it proceeded was invalid.


source: Caselaw Access Project

author: ROWLEY, Judge :

license: Public Domain

text:
    445 A.2d 753
    COMMONWEALTH of Pennsylvania v. Robert Charles WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 10, 1981.
    Filed May 7, 1982.

      Thomas B. Klingensmith, Assistant Public Defender, Lancaster, for appellant.
    Michael H. Ranck, District Attorney, Lancaster, for Commonwealth, appellee.
    Before HESTER, ROWLEY and MONTGOMERY, JJ.
   ROWLEY, Judge :

On February 28, 1979, appellant was charged with arson in connection with a fire at the foundry where appellant was employed at the time. On July 11, 1979, appellant was convicted after a jury trial. His post-trial motions in arrest of judgment and for a new trial were denied. On August 4, 1980, appellant was sentenced to a term of imprisonment of not less than three (8) years nor more than ten (10) years, fined $100.00 and ordered to pay costs. He was also ordered to pay 1.5 million dollars in restitution.

Appellant first contends that the trial court erred in refusing to charge the jury on the offense of criminal mischief as a lesser included offense of arson. Appellant specifically requested this instruction in his proposed points for charge.

“The test for determining whether an offense is a lesser included offense is whether all the essential elements of the lesser offense are included in the greater offense.” Commonwealth v. Ostolaza, 267 Pa.Super. 451, 457, 406 A.2d 1128, 1131 (1979). See also Commonwealth v. Wilds, 240 Pa.Super. 278, 362 A.2d 273 (1976); Commonwealth v. Nace, 222 Pa.Super. 329, 295 A.2d 87 (1972). Applying that test, we conclude that criminal mischief is not a lesser included offense of arson.

Criminal mischief contains two elements not included in arson. First, criminal mischief involves “tangible property”, while arson involves a “building or occupied structure”. In Commonwealth v. Lezinsky, 264 Pa.Super. 476, 479, 400 A.2d 184, 186 (1979), the court indicated that “tangible property” is limited to personal property, while arson involves real property. Second, criminal mischief involves an intentional, reckless or negligent act, while arson does not include negligent conduct. Therefore, since all of the elements of criminal mischief are not included in arson, criminal mischief is not a lesser included offense of arson.

The Court’s opinion in Commonwealth v. Lezinsky, supra, supports this conclusion. Although that case dealt with the issue of duplicate sentences, the Court stated that the offense of criminal mischief did not “merge” into the offense of arson. 264 Pa.Super. at 479, 400 A.2d at 186. The doctrines of merger and of lesser included offenses raise essentially the same question. Commonwealth v. Ackerman, 239 Pa.Super. 187, 191 n. 4, 361 A.2d 746, 748 n. 4 (1976).

Appellant next argues that trial counsel was ineffective in failing to move for the suppression of an inculpatory statement given by him on February 28, 1979, on the basis that the statement was not voluntary. In the challenged statement, appellant said that he threw a match into some paper trash at the foundry, watched it start burning, then left. Appellant further stated that the reason for his action was that he was “mad at the guys in at work”.

A two-step analysis has been developed in reviewing allegations of ineffective assistance of counsel. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). First, the reviewing court must determine whether the issue underlying the charge of ineffectiveness is of “arguable merit”. Commonwealth v. Burton, 491 Pa. 13, 18, 417 A.2d 611, 613 (1980).

In spite of the fact that no suppression motion was filed and no objection was made to the admission of the statement into evidence, counsel presented extensive testimony at trial challenging the voluntariness of the statement. There is considerable evidence in the record that would support a conclusion that the statement was not given voluntarily. Appellant was at the police station for approximately five hours before he signed the statement. He claims to have had nothing to eat before going to the station. Testimony was presented that appellant is borderline mentally retarded with a very passive, dependent personality. He is a functional illiterate who reads on a second grade level, at best. Indeed, appellant attempted to read his statement during the trial and had great difficulty. He was unable to understand even simple words such as “employed”, “also” and “questioning”. Thus, although trial counsel carefully prepared to contest the voluntariness of the statement at trial, he never sought a pre-trial judicial determination of the issue.

The issue of the voluntariness of the statement was submitted to the jury with appropriate instructions along with the other issues in the case. Defendant was found guilty by a general verdict. The same procedure was held to be a violation of the Due Process Clause of the Fourteenth Amendment in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). The Supreme Court was of the opinion that such a procedure did not afford a reliable determination of the voluntariness of a confession. It was feared that jurors might find it difficult to understand the policy forbidding reliance on a coerced but true confession. Therefore, a defendant is entitled to a separate, judicial determination of voluntariness. This determination may be made during a pre-trial suppression hearing, or the court may interrupt the trial and conduct an inquiry into voluntariness outside the presence of the jury. See Commonwealth v. Rice, 271 Pa.Super. 425, 413 A.2d 739 (1979). In the present case, however, no such separate determination of voluntariness was made at any time before the case was submitted to the jury. In view of the above, we conclude that appellant’s claim of ineffective assistance of counsel is of arguable merit.

Therefore, we must determine whether counsel’s failure to seek a judicial determination of the statement’s voluntariness had any reasonable basis designed to effectuate appellant’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). The record before us does not indicate whether counsel had a reason for failing to request a “Jackson-Denno” hearing on the issue of voluntariness of the statement. In Commonwealth v. Rice, supra., the Court held that remand for an evidentiary hearing was not necessary because if there was any error in admitting the defendant’s formal confession into evidence, it was harmless beyond a reasonable doubt since the defendant took the stand during trial and repeated the factual narrative that was contained in the alleged illegal confession. However, we cannot say on this record that error, if there was any, was harmless beyond a reasonable doubt for the reason that appellant did not reiterate the alleged involuntary, inculpatory statement of February 28, 1979 during his testimony at trial. Therefore, we will vacate the sentence and remand for an evidentiary hearing on the question of ineffective assistance of counsel. Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978).

Counsel cannot be found ineffective for failing to assert a meritless claim. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Therefore, in evaluating whether trial counsel was ineffective, the lower court will determine whether the confession was voluntary or involuntary. If it is determined to have been voluntary, counsel was not ineffective in failing to move for its suppression and appellant may be resentenced. He may appeal from that judgment of sentence.

If the statement is determined to have been involuntary, the court will determine whether counsel had a reasonable basis for failing to move for its suppression. Although in view of the defense presented at trial it seems very unlikely that a reasonable basis existed for trial counsel’s actions, this may have been a tactical decision and we believe that counsel should have an opportunity to explain his failure to request a Jackson-Denno hearing. If it is determined that counsel did not have a reasonable basis for his decision, appellant will be granted a new trial at which the confession will be inadmissible. If it is determined that counsel acted pursuant to a reasonable basis, appellant may be resentenced and he may appeal from that judgment of sentence.

Finally, appellant argues that the sentence imposed by the trial judge was excessive. Since we have vacated the sentence, we do not need to address that issue. However, since the lower court may have occasion to resentence appellant, we believe that a few words on the subject of restitution are in order.

The court’s concern that a victim be fully compensated for a crime should not overshadow its concomitant duty to promote the defendant’s rehabilitation. Therefore, a court must make sure that the amount of restitution awarded does not exceed the defendant’s ability to pay. Commonwealth v. Fuqua, 267 Pa.Super. 504, 508-9, 407 A.2d 24, 26 (1979). Since an order of restitution is a sentence, it must be supported by the record. Therefore, the extent of the injury suffered, the defendant’s ability to pay for it, and the type of payment, lump sum or installments that will best serve the needs of the victim and the capabilities of the defendant must all be considered on the record. Commonwealth v. Fuqua, 267 Pa.Super. at 510, 407 A.2d at 27.

Judgment of sentence vacated and case remanded for a hearing in accordance with this opinion. Jurisdiction relinquished.

      . This case was assigned to the writer on January 5, 1982.

      . 18 Pa.Cons.Stat.Ann. § 3301(b)(2), which reads as follows:
      (b) Endangering property—A person commits a felony of the second degree if he:
      ... (2) intentionally starts a fire or causes an explosion, whether on his own property or on that of another, and thereby recklessly places a building or occupied structure of another in danger of damage or destruction; ...

      . 18 Pa.Cons.Stat.Ann. § 3304(a)(1), which reads as follows:
      (a) Offense Defined—A person is guilty of criminal mischief if he:
      (1) damages tangible property of another intentionally, recklessly, or by negligence in the employment of fire, explosives or other dangerous reasons listed in section 3302(a) of this title (relating to causing or risking catastrophe);

      . Since appellant is represented on appeal by counsel other than trial counsel, and since the grounds for the appeal appear of record, the issue of ineffective assistance is properly raised for the first time on direct appeal. Commonwealth v. Burch, 248 Pa.Super. 8, 13, 374 A.2d 1291, 1293 (1977).


author: CERCONE, President Judge:

text:
    445 A.2d 757
    COMMONWEALTH of Pennsylvania, v. Morris J. DAVID, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 14, 1979.
    Filed May 14, 1982.

      Leonard P. Klavonic, Aliquippa, for appellant.
    John Lee Brown, Jr., Assistant District Attorney, Aliquippa, for Commonwealth, appellee.
    Before CERCONE, President Judge, and MONTGOMERY and LIPEZ, JJ.
   CERCONE, President Judge:

This is a direct appeal from a judgment of sentence. Appellant was convicted on two counts of gambling. Post-verdict motions were timely filed and denied. Appellant was thereafter sentenced to a year’s probation. This appeal followed.

Appellant contends that the lower court erred when it failed to suppress all the evidence seized pursuant to a search warrant which issued the day of his arrest. He contends that the search warrant was invalid because the information contained in the affidavit was “stale” and hence there was no showing of probable cause to support its issuance. We agree and therefore reverse appellant’s conviction and remand for appropriate action below.

On February 27, 1978, Trooper Edward Chelen learned from a confidential informant that appellant was conducting an illegal card game in the basement of his residence. The informant claimed to have participated with regularity over the preceding three months. The card games were said to take place every Sunday and Tuesday. The following day, Tuesday, February 28, Trooper Chelen staked out appellant’s home. That evening he observed the arrival of seven cars, each containing but one occupant. License checks revealed that the owners of two of the vehicles were convicted gamblers. In succeeding weeks, Trooper Chelen conducted two illegal “searches” of the premises. On March 21, Trooper Chelen swore out an application for a search warrant authorizing a nighttime search of appellant’s home. The affidavit in support of the application included the information obtained on February 27 and 28, as well as that garnered as a result of the illegal “searches”. The magistrate issued the warrant and it was executed that same evening. Minutes prior to the execution of the warrant Trooper Chelen again peeked through the shuttered window and observed appellant and several other men playing cards. Trooper Chelen and several other officers then went to appellant’s door and executed the search warrant.

In his pre-trial motion to suppress the evidence seized during the search, appellant contended that the warrant was issued without probable cause. First he contended that the confidential informant’s information was insufficient because of its remoteness and staleness. Secondly, he argued that some of the information was illegally obtained by Trooper Chelen. The suppression court ruled that, indeed, Trooper Chelen had illegally obtained some of the information relied on in the affidavit supporting the warrant and struck that information from the affidavit and otherwise ordered it suppressed. The court refused to rule, however, that the sanitized affidavit was insufficient to establish probable cause for the warrant’s issuance. Appellant raised the staleness argument again in his post-verdict motions along with several evidentiary questions. On appeal, we are presented with these evidentiary questions as well as the staleness issue. We need not discuss the propriety of the court’s evidentiary rulings since we find the staleness problem dispositive of the case.

The information not stricken from the affidavit in support of the search warrant is that provided by the confidential informant on February 27 and by Trooper Chelen’s observations on February 28. Thus, the question before us is whether information concerning allegedly continuous criminal activity becomes stale with the lapse of twenty-one days, where the affidavit contains no indication of continuing criminal activity legally obtained. We now hold that such information is stale and will not support the issuance of the search warrant because there was no probable cause.

In Commonwealth v. Eazer, 455 Pa. 320, 312 A.2d 398 (1973) , the Pennsylvania Supreme Court held a sixty-one day hiatus too long to support a finding of probable cause where there was no supporting evidence of continuing activity. Eazer dealt with evidence pertaining to an illegal lottery operation. In Commonwealth v. Suppa, 223 Pa.Superior Ct. 513, 302 A.2d 357 (1973) this Court held that a lapse of sixteen days was too long to justify a finding of probable cause. Suppa also involved an illegal lottery. We noted there that the mere passing of time is itself alone not sufficient to determine the question of staleness. See also Commonwealth v. Novak, 233 Pa.Superior Ct. 236, 335 A.2d 773 (1975). The nature of items sought and their quantity is also important. See Commonwealth v. Suppa, supra; Commonwealth v. Jones, 229 Pa.Superior Ct. 224, 323 A.2d 879 (1974) . In Jones we held that information concerning a cache of weapons being stored for the purpose of urban terrorism was not stale even after twenty-one days because of the nature of the items and their intended purpose. In Commonwealth v. Novak, supra, we held that thirty days was too long where the evidence sought was of narcotics intended for sale. See also Commonwealth v. Bove, 221 Pa.Superior Ct. 345, 293 A.2d 67 (1972).

The evidence sought in this case more nearly resembles the evidence in Suppa and Eazer than in the drug cases, or in the weapons case. Like the evidence of the illegal lotteries sought in the former cases, the evidence here was transient in nature. Moreover, the items sought could have been used for completely innocuous purposes as well as for illegal ones. Because there was no showing of continuing illegal activity to support the warrant, the evidence seized should have been suppressed and it was error not to do so.

Reversed and remanded.

      . 18 Pa.C.S. §§ 5513(a)(2)-(4).


author: PRICE, Judge:

text:
    445 A.2d 758
    PARKING UNLIMITED, INC., a Corporation, v. MONSOUR MEDICAL FOUNDATION, a Corporation, Appellant.
    Superior Court of Pennsylvania.
    Argued March 16, 1981.
    Filed May 14, 1982.

      John R. Friedlander, Pittsburgh, for appellant.
    B. Patrick Costello, Greensburg, for appellee.
    Before PRICE, BROSKY and MONTEMURO, JJ.
   PRICE, Judge:

The issues presented for our consideration in this appeal are whether the court below erred in entering an order pursuant to a common law arbitration award and in refusing appellant permission to take depositions of additional witnesses.

The parties to the instant action entered into a written building contract by which appellee, Parking Unlimited, Incorporated, agreed to furnish architectural and engineering services in connection with the construction of a parking garage and office building for appellant, Monsour Medical Foundation. The contract called for specified payments upon the performance of certain phases of the engineering work. It also expressly provided for the arbitration of disputes arising out of the contract in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association. When appellee sought payment of the balance of the contract price which it claimed to be due, appellant denied any liability because of appellee’s allegedly unsatisfactory performance. The parties then submitted the entire controversy for decision by a panel of arbitrators. Appellee averred full compliance with the contract and completion of its obligations thereunder and claimed $101,-829, with interest, as the unpaid balance. Appellant, on the other hand, claimed that the set of plans and specifications prepared by appellee was valueless.

The arbitrators conducted a hearing on September 19, 1979. On October 18, 1979, the arbitrators announced an award in favor of appellee for the total amount claimed. Thereafter, appellee filed a petition to confirm the arbitrators’ award. Appellant answered that the contract was void ab initio since professional services cannot be performed by a business corporation and, by way of new matter, asserted that the arbitration award was a nullity since after-discovered evidence established that false testimony was given at the proceeding. At the same time, appellant also moved for discovery since the averments of new matter set forth in the answer were dehors the record. Appellee’s reply to new matter denied that it had engaged in any improper activity, and asserted that the arbitrators made their award after a full and fair hearing. On May 2, 1980, the Honorable Richard E. McCormick entered an order, in which the Honorable Gilfert M. Mihalich concurred, granting appellee’s petition to confirm the award and denying appellant’s request for additional discovery. This appeal followed.

In arbitration agreements under common law, the arbitrator is the final judge of both law and fact, and there is no authority which sanctions the vacatur of his decision for a mistake of either. Allstate Insurance Co. v. McMonagle, 449 Pa. 362, 296 A.2d 738 (1972); Harwitz v. Selas Corp. of America, 406 Pa. 539, 178 A.2d 617 (1962). Every presumption is in favor of the award’s validity. Reinhart v. State Automobile Insurance Association, 242 Pa.Superior Ct. 18, 363 A.2d 1138 (1976). Nevertheless, a party can succeed in having an arbitrator’s award vacated if it is alleged and proven, by clear, precise and convincing evidence, that he was “denied a hearing or that there was fraud, misconduct, corruption or some other irregularity of this nature on the part of the arbitrator which caused him to render an unjust, inequitable or unconscionable finding.” International Brotherhood of Firemen and Oilers, AFL-CIO Local 1201 v. School District of Philadelphia, 465 Pa. 356, 350 A.2d 804 (1976), quoting Nationwide Mutual Insurance Co. v. Barbera, 443 Pa. 93, 95, 277 A.2d 821, 823 (1971). See 42 Pa.C.S.A. § 7341.

In the instant case, appellant alleges neither misconduct, corruption, nor denial of a hearing. Rather, appellant seeks to overturn the award by alleging that because appellee, as a business corporation, contracted to perform professional services in violation of the Professional Corporation Law, Act of July 9, 1970, P.L. 461, No. 160, § 2(4), the arbitrators’ decision permitting recovery for its services amounted to such a capricious disregard of the law as to constitute an “other irregularity.” We disagree.

While the arbitrators rendered their decision without opinion, it should be noted that their determination was delayed until both parties had an opportunity to brief the question whether appellee, as a business corporation, should be barred from recovery upon the contract. In rebuttal to appellant’s claim that the performance of engineering services is reserved exclusively for professional corporations or individual licensees, appellee adverted to the Professional Engineers Registration Law, Act of May 23, 1945, P.L. 913, § 6 (prior to the 1979 amendment), which deals specifically with firms and corporations. In pertinent part, that section provides:

The practice of engineering, and of surveying being the function of an individual or of individuals working in concerted effort, it shall be unlawful for any firm or corporation to engage in such practice, or to offer to practice, or to assume, use or advertise any title or description conveying the impression that such firm or corporation is engaged or is offering to practice such profession, unless the directing heads and employees of such firm or corporation in responsible charge of its activities in the practice of such profession are licensed and registered in conformity with the requirements of this Act, and whose name and seal shall be stamped on all plans, specifications, plates and reports issued by such firm or corporation.

63 P.S. § 153 (1968) (emphasis added). Appellee argued that since it was and is complying with the law concerning registration, the intention of the legislature was that it should be entitled to recover pursuant to section six.

In these circumstances, we do not believe that the award in favor of appellee meets the “other irregularity” criterion articulated in Allstate Insurance Co. v. Fioravanti, 451 Pa. 108, 299 A.2d 585 (1973) and its progeny. Although there is no doubt that appellee, as a business corporation, contracted to provide engineering services, the arbitrators decided in good faith that the public policy declared by the legislature in section six of the Professional Engineers Registration Law expressly permits recovery for the services appellee rendered. See 15 P.S. § 2905 (Supp. 1980-81). Clearly, we cannot say that this conclusion evidences an indifference to the governing law sufficient for vacating an arbitration decision.

We now turn to appellant’s allegation that the suppression by appellee of certain facts in the proceeding was tantamount to fraud and, concomitantly, that the trial court abused its discretion in denying appellant’s motion for discovery. Appellant asserts that, after the arbitration award was entered, it discovered that Mulach Steel Corporation [Mulach] had performed a substantial portion of the work for which appellee now seeks recovery and that appellee would have received an undisclosed kickback of $6000 in the event Mulach was awarded the final steel contract. Appellant thus argues that the president of appellee-corporation committed perjury at the arbitration hearing when he failed to disclose these facts in response to questioning concerning the right of Parking Unlimited to recover for its services. This argument is patently spurious.

An offer to show fraud in attacking an arbitration award should indicate facts which, if proved, would be sufficient to sustain such a finding. Kann v. Bennett, 234 Pa. 12, 82 A. 1111 (1912). While it is true that appellee contracted with Mulach to provide certain engineering designs for which it had been hired by appellant, there was nothing in the parties’ agreement which required appellee to furnish, or appellant to approve, the names of any subcontractors that might participate in the design work. Indeed, after reviewing the contract and its legal effect as a whole, it is fair to say that appellee was an independent contractor, free from the control of appellant with respect to the means of performing the work to be done. Cf. Hammermill Paper Co. v. Rust Engineering Co., 430 Pa. 365, 243 A.2d 389 (1968) (judgment on the pleadings reversed where trial court predicated its decision on ground that engineering and construction firm was an employee as opposed to an independent contractor). See generally C. Dunham & R. Young, Contracts, Specifications, and Law for Engineers 111, 384-85 (2d ed. 1971). See also Mackay v. Benjamin Franklin R. & H. Co., 288 Pa. 207, 135 A. 613 (1927). Thus, Mulach’s engagement as an engineering consultant was a normal and permissible incident to the parties’ contract and we fail to see how any omission in this regard could have influenced, or is even material to, the arbitrators’ decision that Parking Unlimited satisfactorily performed under its terms.

No discussion is necessary as to appellant’s complaint that Mulach and Parking Unlimited agreed upon a secret $6000 “kickback” except to state that their subcontract delineated two alternative methods of compensation for the services to be performed by Mulach: $5000 if it was awarded the final steel work, or one percent of the construction cost of the work it had prepared (in this case, $11,000) if the final steel work was awarded to another contractor. In ordinary parlance, this was merely a discount provision and, as appellee significantly points out, there were fifteen contractors who bid on this phase of the project with no assurance to any, including Mulach, that it would be the successful bidder. In such circumstances, we cannot say that Mulach acted in collusion with appellee.

For all of the foregoing reasons, the order granting appellee’s petition to confirm the arbitrators’ award and denying appellant’s request for additional discovery. is affirmed.

      . The agreement was a standard form contract used by owners and engineers for the rendering of professional services (November 1972 Edition, National Society of Professional Engineers).

      . The phases enumerated in the contract were the following: (1) schematic planning phase; (2) preliminary design phase; (3) final design phase; (4) bidding or negotiating phase; and (5) construction phase.

      . Appellee initially filed a complaint in assumpsit against appellant in the Court of Common Pleas of Westmoreland County. Appellant answered by filing preliminary objections, alleging that the dispute was subject to arbitration.

      . By agreement of both parties, there was no transcription of the proceeding. Therefore, in referring to the arbitration hearing, this court has relied on those portions of the printed record which remain uncontroverted.

      . While the Act of April 25, 1927, P.L. 381, No. 248, § 1 ei seq., provided a more efficient method of enforcing arbitration agreements and awards than was provided at common law, it did not abolish common law arbitration. The rule has been reiterated in many decisions that the provisions of the Act of 1927 are applicable only if the arbitration agreement specifically refers to the Act or there is other evidence, subsequent to the agreement, that the parties expressly or implicitly agreed that it should apply. Runewicz v. Keystone Ins. Co., 476 Pa. 456, 383 A.2d 189 (1978).

      . Section 10(a) of the Professional Corporation Law of July 9, 1970, P.L. 461, No. 160, unambiguously states that shares in a professional corporation can be issued only to a licensed professional. 15 P.S. § 2910(a) (Supp. 1980-81). At the hearing, it was disclosed for the first time that Douglas N. Howe, President of Parking Unlimited, Inc., and signatory of the contract here in dispute, was a minority shareholder of appellee-corporation and was neither a registered architect nor an engineer.

      . In Allstate Ins. Co. v. Fioravanti, 451 Pa. 108, 116, 299 A.2d 585, 589 (1973), the supreme court stated that the phrase “other irregularity” imports “such bad faith, ignorance of the law and indifference to the justice of the result” as would cause a court to vacate an arbitration award.

      . That this was the controlling legal issue addressed by the arbitrators is also demonstrated by the parties’ agreement that it was the only controverted element in the case other than the question of appellee’s satisfactory performance under the terms of the contract. Cf. Reinhart v. State Auto. Ins. Ass’n., 242 Pa.Superior Ct. 18, 363 A.2d 1138 (1976) (if arbitrators do not clearly delineate bases of their award, and petition and answer fail to agree upon factual and legal bases thereof, the party who excepts must produce conclusive evidence of the issues decided).

      . Although Douglas N. Howe was neither a registered engineer nor architect, he testified at the arbitration hearing that a registered engineer who was in the employ of appellee-corporation (and a stockholder therein) was the individual who signed and placed his seal on the submitted pláns. Mr. Howe also testified that there was another stockholder who was a registered architect employed by appellee.

      . Originally, appellant alleged that Mulach Parking Systems, Inc., a division of Mulach Steel Corporation, had actually prepared the work for the construction project. This allegation was corrected, however, when appellant subsequently learned that Mulach Parking Systems, Inc., did not exist at the time of the instant dispute.

      . Appellant claims that it uncovered this information by sheer fortuity when its new engineer for the parking facility and office building was talking with a person employed by Mulach. As can best be gleaned from the trial court’s opinion, the trial court ignored these allegations of newly-discovered evidence on the ground that appellant did not state specifically how and when the information was acquired. See slip op. at 6. See generally Hornick v. Bethlehem Mines Corp., 310 Pa. 225, 165 A. 36 (1933) (allegation that evidence was discovered “since the trial” is too indefinite); 6A Standard Pennsylvania Practice 154 (1960).

      . Contrary to the scenario depicted by appellant in which Parking Unlimited masqueraded as an independent engineering firm, the record shows that these designs comprised only a small portion of the work appellee was required to do in connection with the project. The agreement between appellee and Mulach, as well as affidavits filed by Douglas N. Howe and Charles Henry Churches (the registered engineer who executed the plans submitted by Mulach), clearly indicate that Mulach was hired exclusively for the foundation and structural steel work. All of the other drawings and work, including the site, elevation, plumbing, and electrical plans were prepared by the registered architect and engineer employed by appellee. Any remaining doubt whether Mulach performed a significant portion of the work involved is dispelled by the fact that the $11,000 to be paid Mulach in exchange for its structural steel services represented no more than 9.2% of the total contract price ($118,458.00) between appellee and appellant.

      . While there exist no uniform criteria for determining whether one is an independent contractor or an employee, certain guidelines have been established:
      “Control of manner work is to be done; responsibility for result only; terms of agreement between the parties; the nature of the work or occupation; skill required for performance; whether one is engaged in a distinct occupation or business; which party supplied the tools; whether payment is by the time or by the job; whether work is part of the regular business of the employer, and also the right to terminate the employment at any time.”

        Hammermill Paper Co. v. Rust Eng. Co., 430 Pa. 365, 370, 243 A.2d 389, 391 (1968), quoting, Stepp v. Renn, 184 Pa.Superior Ct. 634, 637, 135 A.2d 794, 796 (1957). See Restatement (Second) of Agency § 220(2) (1958).

      . Indeed, appellant concedes that there was nothing wrong with Mulach preparing plans and specifications, “providing it disclosed its affiliation, interest and lack of independence.” Brief for Appellant at 13.

      . In view of our express holding that the arbitration award was not the result of perjured testimony, we do not reach the merits of that - part of the trial court’s order denying appellant’s motion to compel discovery. Rather, it is sufficient to state that there was no abuse of discretion by the trial court in refusing to allow further testimony where the alleged after-discovered evidence did not even satisfy the general test for fraud in setting aside an arbitration award.


author: SPAETH, Judge: O’KICKI, Judge,

text:
    445 A.2d 763
    William OBDYKE, Appellant, v. HARLEYSVILLE MUTUAL INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Dec. 4, 1979.
    Filed May 14, 1982.
    Petition for Allowance of Appeal Granted Aug. 31, 1982.

      Albert Ominsky, Philadelphia, for appellant.
    William D. March, Media, for appellee.
    Before SPAETH, CAVANAUGH and O’KICKI, JJ.

       Judge JOSEPH F. O’KICKI of the Court of Common Pleas of Cambria County, Pennsylvania is sitting by designation.

   SPAETH, Judge:

This is an appeal from an order vacating an arbitration award in an automobile accident case on the ground that there was no “uninsured motorist.” We affirm.

On November 2, 1977, William Obdyke, while driving his automobile, was involved in a collision with an automobile driven by one Jose Antonio Mejias. Obdyke’s right ankle was broken. Mejias was driving under the influence of alcohol. Obdyke’s claim against Mejias was settled by Mejias’s insurance carrier, Motor Club of America Insurance Company, for $15,000. Obdyke also filed a claim with his own carrier, Harleysville Mutual Insurance Company, for benefits under his “uninsured motorist” coverage. When 'Harleysville refused to pay the claim, an arbitration was held. On February 26,1979, the arbitrators by a 2-to-l vote awarded Obdyke $15,000. On March 8, 1979, Harleysville petitioned the lower court “to modify, vacate or correct” the arbitrators’ award, on the ground that Mejias was not an “uninsured motorist” at the time of the accident. On June 27, 1979, the lower court granted the petition and vacated the award. Obdyke now appeals from that order.

As appellant, Obdyke argues that Harleysville waived any right to object to the arbitration award (and that the lower court therefore erred in vacating the award) by virtue of a provision in the arbitration clause of the policy that “[a] decision agreed to by two of the arbitrators will be binding.” This argument was not raised in appellant’s answer to Harleysville’s petition in the lower court. However, since it could be construed as going to our jurisdiction, we shall consider it.

The arbitration clause provided that arbitration “shall be conducted in accordance with the Pennsylvania Arbitration Act of 1927.” Arbitration under the Act of 1927 is subject to much broader judicial review than is common law arbitration. Wingate Construction Company v. Schweizer Dipple, Inc., 419 Pa. 74, 213 A.2d 275 (1965). Section 11(d) of the Act, 5 P.S. § 171(d), provides that on the application of any party the court shall make an order modifying or correcting the award “[wjhere the award is against the law, and is such that had it been a verdict of the jury the court would have entered different or other judgment notwithstanding the verdict.” See Pennsylvania Turnpike Commission v. Smith, 350 Pa. 355, 39 A.2d 139 (1944).

This provision for broad judicial review is a critical feature of the Act of 1927. It follows that where an agreement provides for arbitration “in accordance with” the Act, to construe the agreement as precluding broad judicial review would be to construe it in a manner inconsistent with the Act. See Wingate Construction Company v. Schweizer Dipple, Inc., supra; Emporium Area Joint School Authority v. Anundson Construction and Building Supply Co., 191 Pa.Superior Ct. 372, 156 A.2d 554 (1959), rev’d on other grounds, 402 Pa. 81, 166 A.2d 269 (1960).

Here, a construction consistent with the Act of 1927 is obvious. The provision that “[a] decision agreed to by two of the arbitrators will be binding” simply means that a decision agreed to by two of the three arbitrators is as binding—has the same effect—as a decision agreed to by all three arbitrators. Whether by a majority or unanimous, the decision is subject to the same broad judicial review provided by the Act.

Since it is therefore apparent that Harleysville did not waive its right to petition the lower court to vacate, modify, or correct the award, we may turn to considering whether in vacating the award the lower court erred. In undertaking this consideration, we must draw every inference of fact in favor of appellant as the award winner, but it is also our duty to correct errors of law. Pennsylvania Turnpike Commission v. Smith, supra.

Here, the arbitrators made no findings of fact or conclusions of law. In vacating the award, the lower court said that “[i]t is not unreasonable to assume that the Arbitrators concluded that “underinsured” is to be equated with “uninsured.” On this assumption the court held the award “patently improper.” Slip op. at 3.

It seems likely that the lower court was correct in assuming that two of the three arbitrators concluded that “unde- • rinsured” is to be equated with “uninsured,” for counsel for appellant argued vigorously to the arbitrators that Mejias was “uninsured” because he was “underinsured.” N.T. 34, 47-48, 9/29/78 hearing; N.T. 5-9, 24-30, 1/27/79 hearing. If in fact two of the three arbitrators did equate “underinsured” with “uninsured,” the lower court was justified in characterizing their award as “patently improper.” This court sitting en banc has very recently held that there is no basis in law or policy for that equation. Davis v. Government Employees Ins. Co., 296 Pa.Superior Ct. 198, 442 A.2d 727 (1982); see also White v. Concord Mutual Ins. Co., 296 Pa.Superior Ct. 171, 442 A.2d 713 (1982).

In Davis the claimant had received $24,467 from the tortfeasor’s insurance carrier in partial settlement of a claim alleged to be in excess of $100,000. He then sought payment under the uninsured motorist coverage of his own policy; when his carrier declined to pay, he sought arbitration. By a vote of 2 to 1 the arbitrators held that they lacked jurisdiction because under the policy definition—which was the same in all material respects as the definition in appellant’s policy—there had been no “uninsured motorist” involved in the accident. The claimant sought judicial review of this holding, arguing among other things that the policy definition of “uninsured” was “contrary to constitutional, legislative or administrative mandate or against public policy or unconscionable.” See Davis v. Government Employees Ins. Co., supra, 296 Pa. Super, at 203, 442 A.2d at 729-30. Both the lower court and this court en banc rejected this argument. We noted that the argument that “an automobile covered by a policy in the minimum amount required by the financial responsibility law should nevertheless be held ‘uninsured’ in the event that the claimant’s damages exceed the face of the policy has been uniformly rejected [in other jurisdictions].” Id., 296 Pa.Super. at 203, 442 A.2d at 730 (Citations omitted).

In his brief to us appellant has abandoned the argument that Mejias was “uninsured” because he was “underinsured.” Instead, he argues that Mejias was “uninsured” because the limit of his policy was less than the minimum limit required by law.

Appellant’s policy with Harleysville defined an “uninsured motor vehicle” as one:

1. to which no bodily injury bond or policy applies at the time of the accident.
2. to which a bodily injury bond or policy applies at the time of the accident but its limits for bodily injury liability is [sic] less than the minimum limit for bodily injury liability specified by the Financial Responsibility Law of the State in which your covered auto is principally garaged.
3. which is a hit-and-run vehicle . . .
4. to which a bodily injury liability bond or policy applies at the time of the accident, but the bonding or insurance company denies coverage or is or becomes insolvent.
R.R. 19(a)

As the lower court noted, at the time of the accident the minimum limit of bodily injury liability specified by the Pennsylvania financial responsibility law was $15,000. 75 Pa.C.S.A. § 1747; 40 P.S. § 1009.104. In his brief, appellant asserts that “[although [appellant’s] claim against Mejias was settled for $15,000.00 with MCA [Motor Club of America Insurance Company], the fact remains that the MCA policy had ‘limits of bodily injury liability’ of $5,000 per person and $10,000 per accident.” Brief for Appellant at 6. Since these limits were less than the minimum limit of $15,000 specified by law, appellant argues, Mejias was “uninsured” within the meaning of paragraph 2 of the definition of “uninsured” in appellant’s policy with Harleysville.

There were two hearings before the arbitrators. The first hearing was on September 29, 1978. In the course of the hearing, counsel for appellant asserted that “the Mejias’ [sic] vehicle had $5,000 bodily injury liability.” N.T. 37, 9/29/78. The assertion was contested by counsel for Harleysville as inadmissible hearsay, N.T. 40-41, 43, and after an extended argument, N.T. 37-77, the arbitrators ruled that the assertion was inadmissible. N.T. 77-78. The hearing concluded on the understanding that counsel for appellant would “get the information” as to Mejias’s coverage. N.T. 78. The second hearing was on January 29, 1979. At the beginning of this hearing counsel for appellant stated:

The testimony at the last hearing, if you remember, there was a dispute because I had been notified by Motorists Insurance Company of Boston, Massachusetts, that their liability insurance for this accident was $5,000. That’s the policy they wrote. Since that time, with great coaxing on my part and constant correspondence and everything else they have agreed to pay $15,000. Their argument was that it didn’t—they didn’t think the coverage was there, et cetera, but the agreement was that they’d pay $15,000 as far as Mr. Mejias’ liability is concerned.
There’s a stipulation that Mr. March and I signed and I think, Bernie, I sent it back to Mr. March because I felt that he sent it to me, so I sent you a copy of it but you now have the original signed stipulation.
N.T. 4, 1/29/79.

Paragraphs 5 and 6 of the stipulation thus referred to read:

5. William Obdyke obtained payment from the insurance carrier for Jose Antonio Mejias, Motor Club of America Insurance Company, in the sum. of $15,000.00.
6. The limit for bodily injury liability payable under the policy of insurance issued to Jose Antonio Mejias by Motor Club of America Insurance Company applicable to the automobile accident of November 2, 1977 was $15,000.00. Supplemental R.R. 124b.

The confusion over Mejias’s coverage arose because although on the declaration page of his policy the bodily injury limit (per person) was indicated as $5,000, which satisfied the financial responsibility requirement of his home state, Massachusetts, at the time of the accident, the policy also included a provision that if Mejias was involved in an accident in another state with higher financial responsibility requirements, the coverage under the policy would be increased to that amount. See N.T. 71-73, 9/29/78 hearing. We have no difficulty holding as a matter of law that where an out-of-state policy has such an escalation provision, and where an amount at least equal to the Pennsylvania financial responsibility requirement has been paid, the automobile covered by such a policy is not “uninsured,” regardless of the limits specified on the declaration page of the policy.

In view of the stipulation, in particular paragraph 6, we might have refrained from this holding. When counsel for the parties have stipulated to the arbitrators that the policy limit of the tortfeasor’s policy is at least equal to the minimum specified by Pennsylvania law, the arbitrators may not find, and counsel should not argue, that the policy limit was less and that the tortfeasor was therefore uninsured. In re Monheim’s Estate, 451 Pa. 489, 304 A.2d 115 (1973); K & C, Inc. v. Westinghouse Elec. Corp., 437 Pa. 303, 263 A.2d 390 (1970).

AFFIRMED.

O’KICKI, J., files a concurring and dissenting opinion.

O’KICKI, Judge,

concurring and dissenting:

I concur in the result of the majority in view of the particular facts of this case. I disagree with the legal reasoning. Counsel for the parties have stipulated to the arbitrators that the limit of the tortfeasor’s policy is at least equal to the minimum specified by Pennsylvania law ($15,-000), and have also stipulated that this minimum was paid to the appellant. (Supplemental R.R. 124b). In view of these two facts, the arbitrators may not find that the tortfeasor was uninsured or that the policy limit was less, notwithstanding the fact that the MCA policy on its face had a liability limit of “$5,000 per person and $10,000 per accident”. (Brief for appellant at 6.) Thus, the trial court was correct in vacating the arbitrator’s decision in this case.

The majority in its legal reasoning in this case relies upon the decisions of White v. Concord Mutual Insurance Company and Commercial Union Insurance Company, 296 Pa.Super. 171, 442 A.2d 713 (1982) and Davis v. Government Employees Ins. Co., 296 Pa.Super. 198, 442 A.2d 727 (1982); (both filed February 1982). I include by reference the dissenting opinion of Justice Shertz who correctly concludes and analyzes the applicability of National Grange Mut. Ins. Co. v. Kuhn, 428 Pa. 179, 236 A.2d 758 (1968).

The majority in this case looks at a half glass of milk and concludes that it is half full. I conclude that the glass is half empty. The majority then concludes that half or partly full equals full. The legislature provided that no insurance policy shall issue unless it provides coverage for uninsured motorists. The majority concludes that coverage means partial or incomplete coverage; I conclude that coverage that is not provided to the extent of the minimum statutory amounts prescribed by the state legislature is uninsurance to the extent that coverage is lacking. A motorist, under the Act of August 14, 1963, P.L. 909, as thereafter amended, 40 P.S. 2000(a), is entitled to minimum coverage for injuries or death resulting from motor vehicular accidents. Surely the legislature did not intend to protect, with minimum coverage, only those who are injured by motorists who are over-insured (those who have coverage in excess of the minimum limits) or those who are totally uninsured. I submit that the majority’s opinion judicially legislates these classes of motorists: (1) Those who are over-insured; (2) Those who are totally uninsured; and (3) Those who are inadequately insured.

The Uninsured Motorist’s Statute must be examined. The primary issue dealt with in the above section, it appears to us, is that of coverage first. That is, the section first refers to required coverage either contained within the policy of insurance or supplemental to that policy. Thus, the policy itself may not meet the limits of required insured amounts in that that required amount may be met by some type of coverage “supplemental thereto”; the term “uninsured” is used later in the section and is not defined by the Statute itself, making it a secondary reference point in interpretation. That interpretation, as a whole, must conform to the public policy and purpose of the act which is:

... to establish at reasonable cost to the purchaser of insurance, a statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors of deceased victims. 40 P.S. 1009.102(b) This basic policy is enunciated and elaborated upon in a

well-stated, clear “findings and purposes” section as follows:

Pa.Stat.Ann. tit. 40 § 1009.102 (Purdon Supp.1978-79).

12. Findings and purposes.
(a) Findings.—The General Assembly hereby finds and declares that:
(1) motor vehicles are the primary instrumentality for the transportation of individuals;
(2) the transportation of individuals by motor vehicle over Commonwealth highways and other highways significantly affects intrastate commerce, particularly in metropolitan areas;
(3) the maximum feasible restoration of all individuals injured and compensation of the economic losses of the survivors of all individuals killed in motor vehicle accidents on Commonwealth highways, in intrastate commerce, and in activity affecting intrastate commerce is essential to the humane and purposeful functioning of commerce;
(4) to avoid any undue burden on commerce during the intrastate transportation of individuals, it is necessary and proper to have a Statewide low-cost, comprehensive, and fair system of compensating and restoring motor vehicle accident victims and the survivors of deceased victims;
(5) exhaustive studies by the United States Department of Transportation, the Congress of the United States, and the General Assembly have determined that the present basic system of motor vehicle accident and insurance law, which makes compensation and restoration contingent upon:
(A) every victim first showing that someone else was at fault;
(B) every victim first showing that he was without fault; and
(C) the person at fault having sufficient liability insurance and other available financial resources to pay for all the loses,
is not such a low-cost, comprehensive, and fair system;
(6) careful studies, intensive hearings, and some State experiments have demonstrated that a basic system of motor vehicle accident and insurance law which:
(A) assures every victim payment of all his basic medical and rehabilitation costs, and recovery of a reasonable amount of work loss, replacement services and survivor’s loss; and
(B) eliminates the need to determine fault except when a victim is very seriously injured,

is such a low-cost comprehensive, and fair system;

(7) adoption of the system described in paragraph (6) in place of the system described in paragraph (5) would remove an undue burden on commerce;

(8) throughout the Commonwealth there should be uniformity as to the essential elements of the system of motor vehicle accident and insurance law to avoid confusion, complexity, uncertainty, and chaos which would be engendered by a multiplicity of noncomplementary systems, but the need for a basic system does not require that the Commonwealth itself directly administer, operate, or direct the administration or operation of such system; and

(9) a Statewide low-cost, comprehensive, and fair system of compensating and restoring motor vehicle accident victims can save and restore the lives of countless victims by providing and paying the cost of services so that every victim has the opportunity to:

(A) receive prompt and comprehensive professional treatment; and
(B) be rehabilitated to the point where he can return as a useful member of society and a self-respecting and self-supporting citizen.
(10) It is necessary to afford required coverages for motor vehicles to economically disadvantaged individuals at rates not so great as to deny such individuals access to insurance which it is necessary for them to have in order to earn income and to be or remain gainfully employed.

As the majority in White, supra, contends, the term “uninsured” is a term of art in the insurance business. The Insurance Commissioner has chosen to define this term according to whether the automobile was covered to the minimum insurance coverage of Pennsylvania Law—not as to whether the claimant recovered minimum damages. We cannot subscribe to that definition although White, supra, and the majority there does so. The history, purpose, and design of 40 P.S. 1009.101 et seq., illustrate that the two terms of “uninsured” and “underinsured” are equivalent, at least to the extent that the policy holder does not meet Pennsylvania’s $15,000 minimum.

In United Services Auto Ass’n Appeal, 227 Pa.Super. 508, 323 A.2d 737 (1974) it was said that a regulation may be deemed invalid if it is “contrary to constitutional, legislative, or administrative mandate, or against public policy or unconscionable”. A definition which the majority urges would most certainly be thus in that the purposes of limiting litigation, prompt settlement of claims and more predictable awards to claimants would be foreclosed to those who, properly or not, are underinsured.

The majority here maintains that the Commissioner has more expertise in this area and prefers that he define the term “uninsured” since the legislature has not. We do not agree. The majority would have us abdicate our judicial function by deferring our judicial function of interpretation to the Commissioner’s definition and urge this deference even in view of that definition being directly contrary to the policy and purpose of the Act.

The entire Act was challenged constitutionally in Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975) and the challenge was quashed. There the Supreme Court, in a four to three decision with six opinions filed, held that the Act’s provisions did not violate the Pennsylvania Constitution, either by limiting the damages recoverable by auto accident victims or by denying certain victims recourse to the courts. Nor did the Act violate the equal protection clause of the federal constitution’s Fourteenth Amendment in establishing classifications among accident victims. The majority reasoned that the loss of certain rights to some victims was outweighed in the balance by the general benefit to society, stating “the legislature has substituted, in the case of relatively minor accidents, the prompt and sure recovery of economic loss for the delayed and uncertain awards of the courts.” (citations ommitted), 41 U. of Pitt. Law Review 27, 35 (1979).

The Act has been challenged on substantive due process grounds but has been easily upheld under the basic constitutional proposition that the Fourteenth Amendment requires only a showing that the legislation is reasonable and bears a rational relation to a permissible legislative objective. The rational relation justification is based on the assumption that the legislature has attempted to correct social evils associated with the old tort system, including the burden of processing all automobile accident litigation in the courts, the allegedly high cost of insurance would have been reduced, the lack of uniform availability of insurance coverage to many automobile owners and operators, the “inequities which have been visited upon claimants” because of uncertain allocating of benefits; and the heavy cost and delay in successfully pursuing a tort claim. Pinnick v. Cleary, 360 Mass. 1, 271 N.E.2d 599 (1971). It is asserted that the Act’s attempt at correcting these social evils in the old system is achieved by treating those affected equitably through an exchange of rights (i.e. speedy recovery on his claim in exchange for the right to sue in tort). A further challenge as to substantive due process involved the aspect of compulsory insurance. This consent is upheld by the reasoning that this compulsory insurance is a perfectly reasonable means to effectuate a fair allocation of costs for compensating accident victims among all motor vehicle owners and operators, thus satisfying the “rational relation” test. 48 Temple Law Quarterly 481, 483 (1975).

The power of the legislature to protect the health, safety, and welfare of citizens requires this conclusion.

Thus, although this court sitting en banc very recently rejected the proposition that “underinsured” equals “uninsured” in Davis v. Government Employees Ins. Co., 296 Pa.Super. 198, 442 A.2d 727 (1982); see also, White v. Concord Mutual Company and Commercial Union Insurance Company, 296 Pa.Super. 171, 442 A.2d 713 (1982), we cannot subscribe to this holding or the dicta in the majority opinion of the case at bar. As illustrated by the foregoing discussion, the legislature had a definite and worthy purpose in enunciating the Pennsylvania No-Fault Act and its policy. This purpose would be sorely strained if out-of-state drivers could venture onto our state’s highways with substantially lower coverage than that required by Pennsylvania, injure a Pennsylvania citizen, and not afford that citizen the same recovery as he would be entitled to if injured by a Pennsylvania tortfeasor. This directly undermines the state’s legislative power to protect the health, safety, and welfare of its citizens.

In view of this, we do not agree that underinsured does not equal uninsured. The two terms, as to the amount the tortfeasor is underinsured, must be held as synonomous so that the policy of the No-Fault Act can be given its full force, weight, and effect.

Accordingly, we would hold that, while affirming the trial court as to the peculiar facts of the case before us, we equate “underinsured” with “uninsured”.

      . Act of April 25, 1927, P.L. 381, No. 248, as amended, 5 P.S. § 161 et seq. The Act of 1927 was repealed by the JARA Continuation Act of 1980, Act of October 5, 1980, P.L. 693, No. 142, § 501(c), effective in 60 days. Statutory arbitration is now provided for by sections 7301-7320 of the Judicial Code, 42 Pa.C.S.A. §§ 7301-7320.

      . We deferred our decision in this case until the opinions in Davis and White had been filed.

      . Although counsel for appellant described the stipulation as having been s,gned by himself and counsel for Harleysville, we find in the record only a copy of the stipulation without signatures. However, since counsel for appellant has admitted to having signed the stipulation, we shall assume that his statement was correct.

      . We have not overlooked the fact that the lower court said it was “vacating” the award rather than “modifying” or “correcting” it. Under the Act of 1927 a court’s power to vacate an award is defined in terms different from its power to modify or correct an award. Compare § 10, 5 P.S. § 170, with § 11, 5 P.S. § 171. The power to enter the equivalent of judgment notwithstanding the verdict is provided as part of the power to modify or correct an award. Thus the lower court should have said it was modifying or correcting the award, instead of saying that it was vacating it.


author: SPAETH, Judge:

text:
    445 A.2d 770
    GENERAL ACCIDENT FIRE & LIFE ASSURANCE CORP., LTD., Appellant, v. Peter A. FLAMINI and American Arbitration Association.
    Superior Court of Pennsylvania.
    Argued May 13, 1981.
    Filed May 14, 1982.

      Roger J. Harrington, Philadelphia, for appellant.
    John M. Kenny, Media, for appellees.
    Before SPAETH, MONTEMURO and VAN der VOORT, JJ.
   SPAETH, Judge:

This is an appeal from an order dismissing a complaint in equity. The lower court held that the issue raised by the complaint had been disposed of in a prior action and should not be re-litigated. We affirm.

The claim that lies behind, and leads to, this appeal is a claim by appellee Peter A. Flamini under the uninsured motorist clause of his employer’s policy, which was issued by appellant. Before filing the complaint dismissed by the lower court, appellant filed another complaint in equity, seeking to enjoin arbitration of Flamini’s claim. Appellant alleged in that complaint that it had already offered its policy limit and that there was therefore nothing to arbitrate. The lower court, TAKIFF, J., entered an order denying the requested injunction and ordering arbitration to proceed under the rules of the American Arbitration Association, which is to say, at common law.

Appellant did not appeal Judge TAKIFF’s order. Instead appellant filed the present action, this time seeking a mandatory injunction that arbitration of Flamini’s claim proceed under the Arbitration Act of 1927. Flamini’s answer to the complaint included new matter, which was not replied to, pleading that the issues raised had already been litigated in the prior action. The lower court, DOTY, J., evidently with the parties’ agreement, treated the answer and new matter as “in the nature of preliminary objections,” Slip op. at 3, and dismissed the complaint. In his opinion, Judge DOTY said:

Petitioner [appellant] should not have started a new cause of action which is the matter before this Court. The respondent [Flamini] has correctly argued that Pennsylvania Rules of Civil Procedure, Rule 1017(b)(5) provide for preliminary objections to a complaint based on the “.. . pendency of a prior action.” This Court will not undertake to assume control over a matter which was originally heard by another Judge [Judge TAKIFF] of this jurisdiction. If we allowed this then the petitioner, anytime it felt it had a new issue to litigate would begin a new action and attempt to have a new Judge rule in its favor. The doctrine of res adjudicata and the policy against forum/Judge shopping would be severely harmed.
Slip op. at 4.

On appeal, appellant argues that Judge DOTY erred in referring to “a complaint based on the ‘. pendency of a prior action.’ ” In appellant’s view, even if the complaint heard by Judge TARIFF was a prior pending action, it was not such a prior pending action as would bar the action before Judge DOTY because the relief requested was that there be no arbitration of Flamini’s claim at all, whereas the relief requested in the complaint before Judge DOTY was that arbitration proceed under the Act of 1927. It is not clear, however, that Judge DOTY’s decision depended upon the action before Judge TARIFF being regarded as a prior pending action. While Judge DOTY did refer to Pa.R.C.P. 1017(b)(5), which provides for a preliminary objection to a complaint based on a prior pending action, he also referred to the doctrine of res judicata, which presupposes that a final judgment or its equivalent has been rendered in the prior action. Judge TARIFF had not in so many words entered a “final judgment” or “final decree;” but he had denied the only relief specifically requested—an injunction against any arbitration—and there was no indication in his order that any further judicial action was to be expected. Pennsylvania law takes a broad view of what constitutes a “final judgment” for purposes of res judicata. Bearoff v. Bearoff Brothers, Inc., 458 Pa. 494, 327 A.2d 72 (1974). A respectable argument could therefore be made that Judge TARIFF’S order was sufficiently conclusive for Judge DOTY to invoke the doctrine of res judicata, which encompasses not only issues actually argued but also issues that could have been argued. Duquesne Light Company v. Pittsburgh Railways Company, 413 Pa. 1, 194 A.2d 319 (1963), cert. denied, 377 U.S. 924, 84 S.Ct. 1221, 12 L.Ed.2d 215 (1964).

If we regard the action before Judge TARIFF as a prior pending action rather than a concluded one, still we reach the same result. It is true that the test for dismissal on the basis of a prior pending action is different—and perhaps more narrow—than the test for dismissal on the basis of res judicata, and that sometimes consolidation may be proper when dismissal is not. Raw v. Lehnert, 238 Pa.Superior Ct. 324, 357 A.2d 574 (1976). Even so, Judge DOTY had no reason to order the action before him consolidated with the action pending—if it was pending—before Judge TARIFF. For Judge TARIFF had not merely denied appellant’s request that any arbitration be enjoined. He had affirmatively ordered that arbitration proceed in a particular way—at common law. The record does not disclose what arguments were made before Judge TARIFF. We may assume—the assumption most favorable to appellant—that the judge heard no argument as to what kind of arbitration should take place, in the event he determined that there should be some kind of arbitration. Nevertheless, the judge did decide that there should be some kind of arbitration. Once he had so decided, rightly or wrongly, with or without support in the record before him, appellant had the duty to appeal his order if it believed the order to be wrong. For whatever reason, appellant did not appeal.

AFFIRMED.

      . The exhibits to the complaint disclose that the real dispute concerns Flamini’s ability to stack and thereby recover more than the policy limit stated on the face of the policy. The policy covers a fleet of automobiles owned by Flamini’s employer. The merits of the stacking issue are not before us.

      . Act of April 25, 1927, P.L. 381, No. 248, as amended, 5 P.S. § 161 et seq. The Act of 1927 was repealed by the JARA Continuation Act of 1980, Act of October 5, 1980, P.L. 693, No. 142, § 501(c), effective in 60 days. Statutory arbitration is now provided by the Judicial Code, 42 Pa.C.S.A. § 7301-7320. The Act of 1927 was still in effect when this case was decided by the lower court.

      . Appellee Flamini asserts in his Brief, at 10, that Judge TARIFF in fact “listened to evidence on whether the arbitration should go forward and if so, under what form.” Perhaps so. But nothing in the record supports appellee’s assertion. Neither appellant nor appellee has filed of record any notes of testimony from the hearing before Judge TARIFF nor any affidavits as to what was argued before him. The Rules of Appellate Procedure provide that “[t]he original papers and exhibits filed in the lower court, the transcripts of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the lower court shall constitute the record on appeal in all cases.” Pa.R.A.P. 1921. We may consider only material duly certified in the record transmitted to us by the lower court. Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974). Appellee has filed a “Supplemental Reproduced Record,” which consists almost entirely of material not included in the record as certified and transmitted to us. We have not given this material any attention in our consideration of this case, and appellee should not have filed it with us.