text:
    451 A.2d 239
    WEST AMERICAN INSURANCE COMPANY, Appellant, v. Debra Ann OBERDING, Ford Motor Company, a corporation, Phil Fitts Ford, Incorporated, a corporation.
    Superior Court of Pennsylvania.
    Argued Nov. 13, 1980.
    Filed Oct. 1, 1982.
    Petition for Allowance of Appeal Denied Aug. 15, 1983.

      George M. Weis, Pittsburgh, for appellant.
    Louis M. Tarasí, Jr., Pittsburgh, for appellees.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   BROSKY, Judge:

This appeal concerns the availability of duplicate benefits to an insured under the Pennsylvania No-Fault Motor Vehicle Insurance Act. Specifically, the appellant, West American Insurance Company, hereinafter WAI, seeks a determination with reference to its rights of subrogation to the damages flowing from a products liability suit where duplicate benefits are sought by the insured which arise out of the accident on which basic loss benefits have been paid. For the reasons which follow, we will affirm the declaratory judgment of the trial court which did not permit subrogation.

On June 18, 1976, appellee, Debra Oberding, was seriously injured when her automobile, a Ford Pinto, was driven into from the rear by another vehicle. Oberding was insured by WAI which has paid basic loss benefits to her under the No-Fault Act in excess of $60,000. Ms. Oberding subsequently filed suit against the manufacturer of her car, Ford Motor Company, Inc., hereinafter Ford, the seller and servicer of her vehicle, Phil Fitts Ford, hereinafter Fitts Ford, and the operator of the automobile which struck her, Mrs. Debra Lynn Simmons. In the court below, WAI filed an action seeking declaratory relief regarding the existence of and their right to subrogation against any recovery Ms. Oberding may realize against Ford, or Fitts Ford.

The insurer’s right to subrogation is found in Section 111 of the No-Fault Act. It provides in pertinent part:

(a) Reimbursement and subrogation.—
(1) Except as provided in paragraphs (2) and (3) of this subsection, an obligor:
(A) does not have and may not contract, directly or indirectly, in whole or in part, for a right of reimbursement from or subrogation to the proceeds of a victim’s claim for a relief or to a victim’s cause of action for noneconomic detriment; and
(B) may not directly or indirectly contract for any right or reimbursement based upon a determination of fault from any other obligor not acting as a reinsurer for no-fault benefits which it has paid or is obliged to pay as a result of injury to a victim.
(2) Whenever an individual who receives or is entitled to receive no-fault benefits for an injury has a claim or cause of action against any other person causing the injury as based upon a determination of fault, thé obligor is subrogated to the rights of the claimant only for:
(A) elements of damage compensated for by security for the payment of no-fault benefits in excess of the minimum basic loss benefits required under this act are recoverable; and
(B) the obligor has paid or become obligated to pay accrued or future no-fault benefits in excess of the minimum basic loss benefits required under this act. (3) Nothing in this subsection shall preclude any person supplying or providing products, services, or accommodations from contracting or otherwise providing for a right of reimbursement to any basic restoration benefits for allowable expense.[]

Section 301 of the No-Fault Act abolishes tort liability, with certain exceptions. The exceptions found at 301(a)(2) and 301(a)(5) are at the center of the controversy herein. Sections 301(a)(2) and (a)(5) provide:

(a) Partial abolition—Tort liability is abolished with respect to any injury that takes place in this State in accordance with the provisions of this act if such injury arises out of the maintenance or use of a motor vehicle, except that:
(2) A person in the business of designing, manufacturing, repairing, servicing, or otherwise maintaining motor vehicles remains liable for injury arising out of a defect in such motor vehicle which is caused or not corrected by an act or omission in the course of such business, other than a defect in a motor vehicle which is operated by such business.
(5) A person remains liable for damages for noneconomic detriment if the accident results in:
(A) death or serious and permanent injury; or
(B) the reasonable value of reasonable and necessary medical and dental services, including prosthetic devices and necessary ambulance, hospital and professional nursing expenses incurred in the diagnosis, care and recovery of the victim, exclusive of diagnostic x-ray costs and rehabilitation costs in excess of one-hundred dollars ($100) is in excess of seven hundred fifty dollars ($750). For purposes of this subclause, the reasonable value of hospital room and board shall be the amount determined by the Department of Health to be the average daily rate charged for a semi-private hospital room and board computed from such charges by all hospitals in the Commonwealth; or
(C) Medically determinable physical or mental impairment which prevents the victim from performing all or substantially all of the material acts and duties which constitute his usual and customary daily activities and which continues for more than sixty consecutive days; or
(D) injury which in whole or in part consists of cosmetic disfigurement which is permanent, irreparable and severe.

WAI characterizes section 301 as follows: “tort liability was preserved in five distinct situations. (§ 301). In a suit based upon the fifth situation (§ 301(a)(5)), the injured party was explicitly limited to noneconomic detriment [footnote omitted] and by clear negative implication in the other four situations (§ 301(a)(1), (2), (3), (4)) there were to be no limitations, i.e., the injured party could recover for both economic and noneconomic detriment.” Appellant’s brief at pages 10-11. WAI states further that § 111 does not restrict its subrogation rights suits under § 301 where damages are not limited to noneconomic detriment. To support this argument, WAI refers us to the Uniform Motor Vehicle Accident Reparation Act, a model act proposed by the Commissioners on Uniform State Laws in 1972. Specifically, WAI contends that § 111 was modeled after § 6 of the model act which in relevant part states:

(a) A reparation obligor does not have and may not directly or indirectly contract for a right of reimbursement from or subrogation to the proceeds of a claim for relief or cause of action for noneconomic detriment (section 5(A)(7)) of a recipient of basic or added reparation benefits.

WAI argues that § 6(a) of the model act clearly provides that a tort action shall only be applicable to a victim’s cause of action for noneconomic detriment. Section 5 referred to in § 6(a) of the model act is similar to § 301 under the No-Fault Act. A comment following § 6 to the model act provides in part:

Under Section 5, there are substantial areas in which tort liability' remains in effect for injury related to motor vehicle accidents. As to these possible tort recoveries, it is desirable to prevent duplication of recovery by the insured person for the same elements of loss and to vest control of the right of recovery in the person having the real economic. interest.
To accomplish this result, Section 6 allocates the beneficial interests in and control over the remaining tort in related causes of action on claims between the injured person and the reparations obligor on the basis of the kind of loss for which recovery is sought. Thus, subsection (a) deprives a reparations obligor of any right of subrogation or reimbursement from the proceeds of a claim or cause of action for noneconomic detriment because those kinds of loss are not compensable by reparations insurance.

(Emphasis added.)

Section 111(a)(1)(A), however, does not, as WAI would have us hold, limit its' proscription against subrogation to claims for noneconomic detriment, rather it quite plainly states in the disjunctive that an obligor

(A) does not have and may not contract, directly or indirectly, in whole or in part, for a right of reimbursement from or subrogation to the proceeds of a victim’s claim for relief or to a victim’s cause of action for noneconomic detriment.

(Emphasis added.) Thus, it would seem that subrogation is prohibited where the obligor seeks to do so against either a “victim’s claim for relief or ... a victim’s cause of action for noneconomic detriment.” While the writers of the Model Aet may have believed it desirable to prevent duplicate recovery, the General Assembly appears to have prohibited subrogation in the instant case and therefore allowed double recovery.

WAI argues that § 111 is susceptible to a different and, it contends, a more logical reading. It essentially contends that § 111(a)(1)(A) was intended by the legislature to only apply to noneconomic detriment. WAI supports this assertion by directing us to a treatise on the No-Fault Act: The Pennsylvania No-Fault Motor Vehicle Insurance Act, Edited by David S. Shrager, Published 1978, Pennsylvania Trial Lawyers Association, wherein it is stated that “§ 111 of the No-Fault Act specifically provides that subrogation to a victim’s claim for general damages for noneconomic detriment is prohibited.” Id. at § 2:9. We are unable to determine that this statement is in any way inconsistent with what the trial court has said. Clearly, § 111(a)(1)(A) prohibits subrogation for noneconomic detriment. However, § 111(a)(1)(A) also prohibits subrogation for general claims for relief by victims.

It is interesting, nevertheless, to pose the question raised by WAI. If § 111(a)(1)(A) does indeed provide two provisions regarding subrogation rights, and if we agree they are (1) a proscription against such a subrogation to “the proceeds of a victim’s claim for relief;” or (2) a proscription against such a subrogation to “a victim’s cause of action for noneconomic detriment,” does not the former completely swallow the latter, making it superfluous unless read such that both are restricted to noneconomic detriment. It would appear that the critical distinction lies in our understanding of the words “claim” and “cause of action” as used in § 111(a)(1)(A). In Tiesler v. Martin Paint Stores Inc., 76 F.R.D. 640, 642 (E.D.Pa.1977) that court said:

Whether Joseph Keller may be impleaded is controlled by the language of Federal Rule of Civil Procedure 14(a) which provides that a defendant may implead a person not party to the action “who is or may be liable to him for all or part of the plaintiff’s claim against him.” The use of the word “claim” in Rule 14 avoids the narrow concepts of “cause of action” and instead employs the idea of the claim as a group of operative facts giving occasion for judicial action. Dery v. Wyer, 265 F.2d 804, 807 (2nd Cir. 1959).

Thus, claim for relief encompasses a broader concept than cause of action. Accordingly, if we were to say that § 111(a)(1)(A) proscribes subrogation against claims for relief would we not include in claims for relief a cause of action for noneconomic detriment. This would make the “cause of action” prohibition superfluous. However, if we construe § 111(a)(1)(A), as WAI would have us do, to say that all subrogation rights are limited so as to now allow any proceeding against noneconomic detriment, we would nevertheless, not solve our difficulty, for a claim for relief would continue to include a cause of action. This interpretation is contrary to the principle that the legislature is not presumed to have intended the provisions of its enactments as mere surplusage. Matter of Employees of Student Services, 495 Pa. 42, 432 A.2d 189 (1981); Commonwealth v. Driscoll, 485 Pa. 99, 401 A.2d 312 (1979); Masland v. Bachman, 473 Pa. 280, 374 A.2d 517 (1977); Daly v. Hemphill, 411 Pa. 263, 191 A.2d 835 (1963); Turner v. May Corporation, 285 Pa.Super. 241, 427 A.2d 203 (1981); Commonwealth v. Hill, 236 Pa.Super. 572, 346 A.2d 314 (1975); 1 Pa.C.S.A. § 1922(2). We are not, however, without guidance in this matter.

In Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975), our Supreme Court held that the No-Fault Act was constitutional. In so doing, it specifically discussed § 301(a)(2) and § 301(a)(5). The court found that § 301(a)(2) permits full tort liability because of the deterrent effect caused by product liability suits. Section 301(a)(5) was held to only allow an action for losses for non-economic detriment. The parties herein agree that § 301(a)(2) permits an action for all damages which are proximately caused by the defective product.

WAI argues that the deterrent effect of an action permitted under § 301(a)(2) is not diminished if it is permitted to file for subrogation to that action. Clearly, this argument is appealing because the § 301(a)(2) defendant remains liable in entire part for damages. WAI asks only for the right to subrogate as to that portion of the damages which it has already paid the plaintiff for economic losses. Nevertheless, we are obliged to hold that subrogation is prohibited under § 111(a)(1). Simply put, § 301(a)(2) permits the insured to pursue the products liability “claim for relief.” Thus, under § 111(a)(1) subrogation is barred.

Alternatively, WAI argues that § 301(a)(2) and § 301(a)(5) focus on the concept of fault and that as such the General Assembly did not intend to change the previous law under which insurance liability was determined by fault. Accordingly, the common law rules of subrogation must continue to apply. See In re City of Pittsburgh, 243 Pa. 392, 90 A. 329 (1914). We cannot agree with this contention.

In enacting the No-Fault Act, the General Assembly declared as its purpose:

Purposes —Therefore, it is hereby declared to be the policy of the General Assembly 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). We must liberally construe the No-Fault Act in order to assure that its purpose is given effect. Sheppard v. Old Republic Life Ins. Co., 21 Pa.Cmwlth. 360, 346 A.2d 383 (1975).

It is certain that the General Assembly intended to limit a tort action under § 301(a)(5) to damages for noneconomic detriment. It is clear also that the General Assembly did not so limit an action under § 301(a)(2). WAI argues that the absence of such a limitation indicates that the legislature intended to retain the common law of subrogation in products liability cases. We are not persuaded. It appears to us that the underlying purpose behind the No-Fault Act is to assure the swift and uniform payment of claims presented by persons under the act. It is apparent also that the purpose envisioned by our courts in products liabilities cases is to deter manufacturers from producing defective products. Singer v. Sheppard, 464 Pa. at 405, 346 A.2d at 906.

Thus, the law of products liability recognizes that:
Today ... a manufacturer ... is effectively the guarantor of his product’s safety .... [A] manufacturer, by marketing and advertising his product, impliedly represents that it is safe for its intended use .... No societal interest is served by permitting the manufacturer to place a defective article in the stream of commerce and then to avoid responsibility for damages caused by the defect.

Salvador v. Atlantic Boiler Co., 457 Pa. 24, 32, 319 A.2d 903, 907 (1974). Accordingly, our Supreme Court has adopted the view that “risk of loss must be placed upon the supplier of the defective product without regard to fault . . . . ” Azzarello v. Black Bros. Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978). In an “era of giant corporate structures” it is the consumer who must be protected.

The realities of our economic society as it exists today force the conclusion that the risk of loss for injury resulting from defective products should be borne by the suppliers, principally because they are in a position to absorb the loss by distributing it as a cost of doing business.

Id., 480 Pa. at 553, 391 A.2d at 1023. This liability does not, however, place the manufacturer in the position of an insurer. Rather, liability here is absolute in the strictest sense. Here, the plaintiff need only prove the product was in some way defective. Wade, Strict Liability of Manufacturers, 19 S.W.L.T.J. 13 (1965). Accordingly, all consumers participate in a system wherein liability for defective products is placed upon the manufacturer and the cost of that liability is paid by all consumers through the pricing of goods. Thus, products liability law envisions a penalty extracted from manufacturers the cost of which is spread to consumers throughout the marketplace. Accordingly, if a manufacturer incurs too much liability for product defect, it may be obliged to increase its prices to pay for its mistakes and may potentially price itself out of competition should it incur substantial liability. By necessity, consumers are obliged to buy into this system.

We are unable to hold that the purposes envisioned in our products liability cases are inconsistent with those established under the No-Fault Act. Furthermore, we cannot hold that an insured is prohibited from recovering damages, where, as here, he has incurred the cost of procuring no-fault insurance and the cost inherent in our products liability cases. These costs are established quite separately, are intended for different purposes and are designed specifically for those purposes. Simply stated, no-fault insurance payments are intended essentially to compensate an individual for injuries he has suffered in an automobile accident. Products liability damages are intended primarily to deter a manufacturer from producing a defective product. Both legal situations extract a cost from the consumer. Thus, we are convinced that the consumer is entitled to receive a benefit under both provisions of the No-Fault Act. Saunders v. State Farm Ins. Co., 294 Pa. Super. 424, 440 A.2d 538 (1982).

Thus, it is apparent that the act does not prohibit all double recoveries. This understanding leads us to conclude that the General Assembly wrote § 111 with the intention of barring subrogation to a products liability claim. No other result can be reached when § 301(a)(2) is read. That section clearly permits an action for a products liability claim. The policies envisioned by the General Assembly under the No-Fault Act and those underpinning our products liability law encompass certain costs to the consumers of Pennsylvania.

In the instant case, the insured has paid for both no-fault insurance and for protection against defective products. We see no reason why she should not receive two recoveries under these circumstances. Id., 294 Pa.Superior Ct. at 425, 440 A.2d at 538. Accordingly, we affirm the order of the trial court.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. §§ 1009.101 et seq. (Supp.1981-1982), hereinafter the No-Fault Act.

      . We note the appellee’s correct observation: The act proscribes subrogation for basic loss benefits with certain limited exceptions. All parties concede the aforementioned exceptions in Paragraphs (2) and (3) allowing subrogation do not apply to the instant case.

      . WAI asks us to rewrite § 111(a)(1)(A) in the following manner: (1) an obligor:
      (A) does not have and may not contract, directly or indirectly, in whole or in part, for a right of reimbursement from or subrogation—to the proceeds of a victim’s claim for relief or to a victim’s cause of action—for noneconomic detriment; .. .
      According to accepted rules of statutory construction, however, words and phrases are to be construed according to rules of grammar 1 Pa.C.S.A. § 1903. We cannot insert punctuation where the general assembly had none without changing the meaning of § 111(a)(1)(A). Although we are permitted to construe insurance statutes liberally, we are unable to hold that such a construance of § 111 would give effect to the No-Fault Act in a manner which would promote justice. 1 Pa.C.S.A. § 1928. See Goodwin v. Hartford Life Insurance Company, 359 F.Supp. 20 (W.D.Pa.1973), reversed, on other grounds, 491 F.2d 332 (3rd Cir. 1974).

      . Note however, the opinion of the court, however, was not clear. The lead opinion by Chief Justice Jones was joined in by no member of the court. Justice Roberts ,wrote a concurring opinion in which Justice Pomeroy joined in part. Justice Nix concurred in the result reached by Chief Justice Jones and wrote a separate opinion. Justices Eagen, O’Brien and Manderino dissented.
      Chief Justice Jones discussed § 301(a)(2) as follows:
      This subsection permits the retention of tort action in one instance of products liability. The subsection envisions three situations. First, where the vehicle is defective because of the act or omission of a repairman or manufacturer, the victim may sue in tort for losses beyond the basic no-fault coverage....

      In the first situation, tort recovery is permitted to encourage the safe and proper design and repair of motor vehicles. Deterrence again serves as the rationale for upholding the distinction created. See R. Keeton and J. O’Connell, Basic Protection for the Traffic Victim, 247-A9 (1965).
      (Emphasis added) id., 464 Pa. at 405, 346 A.2d at 906.


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    451 A.2d 245
    COMMONWEALTH of Pennsylvania v. Keith D. LOWERY, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 10, 1982.
    Filed Oct. 1, 1982.

      John E. Nickoloff, Pittsburgh, for appellant.
    Kenneth J. Benson, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   BROSKY, Judge:

This is an appeal from a judgment of sentence. Appellant was convicted in a nonjury trial of possession of an unlawful substance, lysergic acid diethylamide (LSD), and sentenced to one year probation.

The trial court denied appellant’s motions for a new trial and for arrest of judgment. First, it rejected appellant’s claim that a police search of his bedroom with the consent of appellant’s mother violated his Fourth Amendment right to privacy. Second, the court found that the mother voluntarily consented to the police search, and that the drugs seized during the search were therefore admissible as evidence. We affirm the decision of the trial court.

The standard of review concerning the findings of a suppression court is well-established. We must consider the evidence of the Commonwealth and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Silo, 480 Pa. 15, 18, 389 A.2d 62, 63 (1978); Commonwealth v. Harris, 479 Pa. 131, 387 A.2d 869 (1978); Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976). “Where the suppression court’s findings are amply supported by the record they may not be disturbed on appeal.” Commonwealth v. O’Bryant, 479 Pa. 534, 537, 388 A.2d 1059, 1061 (1978); Commonwealth v. Bundy, 458 Pa. 240, 328 A.2d 517 (1974).

The facts may be summarized as follows. At 11:15 p.m. on December 5, 1980, two police officers from the Pine-Marshall-Bradford Woods Police Department appeared at the home of Dr. and Mrs. Clinton A. Lowery, appellant’s parents. Appellant was asleep in the basement at the time. The police told Mrs. Lowery they believed appellant had secreted approximately 100 squares of LSD in his bedroom bookshelf, and asked her permission to search the room. Explaining that she could refuse to allow the search, the police said they would obtain a search warrant if she did so. The police did not inform Mrs. Lowery that they had a search warrant in their possession at the time.

Mrs. Lowery said if there were any drugs in her residence, she wanted them out. After further discussion, she signed a consent warrant. The two officers and Mrs. Lowery proceeded to appellant’s bedroom, where a search revealed 98 squares of LSD inside a book on a bookshelf. The officers then woke up appellant and arrested him.

Appellant contends that he had a reasonable expectation of privacy in his bedroom under the Fourth Amendment and was the only person who could have validly consented to its search. Since he did not consent, he argues, the evidence seized should have been suppressed at trial.

“. . . Whether an individual is entitled to the protection of the fourth amendment ‘depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.” Commonwealth v. Sell, 288 Pa.Super. 371, 377, 432 A.2d 206, 210 (1981), citing Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978), reh. den., 439 U.S. 1122, 99 S.Ct. 1035, 59 L.Ed.2d 83 (1979); Commonwealth v. Karpinski, 281 Pa.Super. 323, 422 A.2d 190 (1980).

The appellant claims a legitimate expectation of privacy in his bedroom based on his payment of $100 per month room and board, his subjective intent to exclude all others, and his claimed exclusive use of the room.

Property rights, actual usage, and historical distinctions are all used to determine whether the Fourth Amendment right to privacy applies. Commonwealth v. Sell, supra, 288 Pa.Super. at 377, 432 A.2d at 210. But . . . “in considering the reasonableness of asserted privacy expectations, . . . no single factor invariably will be determinative.” Rakas v. Illinois, supra, 439 U.S. at 152, 99 S.Ct. at 435.

In general, to have a reasonable expectation of privacy, one must intend to exclude others and must exhibit that intent. Commonwealth ex rel. Cabey v. Rundle, 432 Pa. 466, 248 A.2d 197 (1968); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Furthermore, as most commonly expressed, the privacy test is twofold: the expectation must not only be “actual (subjective,)” but also one that “society is prepared to recognize as ‘reasonable.’ ” Katz, supra, 389 U.S. at 360, 88 S.Ct, at 516 (Harlan, J., concurring).

Appellant argued that he had such an expectation as a rent-paying tenant. It is true that a landlord or lessor cannot consent to a search of a tenant’s premises, regardless of the lessor’s right to enter and inspect. Commonwealth v. Berry, 265 Pa.Super. 319, 401 A.2d 1230 (1979); Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961).

But the trial judge found that no landlord-tenant relationship existed here between appellant and his parents. In his opinion, he stated,

. . . the fact that the defendant agreed to pay his parents $100 a month board does not put him in the special relationship of landlord and tenant. Defendant was merely contributing (and not on an entirely regular basis) to the support of a household of which he was a member. Additionally, the defendant had full access to the entire house, not just to his bedroom. It is reasonable therefore to conclude that the defendant had no expectation of privacy that would exclude his mother from his bedroom.

“[I]n determining what is ‘reasonable,’ all surrounding facts and circumstances must be considered.” Commonwealth v. Latshaw, 481 Pa. 298, 306, 392 A.2d 1301, 1305 (1978), cert. den., 441 U.S. 931, 99 S.Ct. 2050, 60 L.Ed.2d 659 (1979) . Applying that standard, we find the lower court’s findings amply supported by the record.

The record indicates that Mrs. Lowery entered appellant’s room for a number of purposes (closing windows, depositing clean laundry, inspecting for dirt). At no time did appellant ever protest her entry or forbid her or any other member of the family from entering his room. Appellant’s door was open at the time police searched the room, and there was testimony that appellant never locked his door.

Overt indications of privacy expectation are not necessary in a strict landlord-tenant relationship because the expectation is understood by society. But cases dealing with search and seizure in a family setting emphasize the need for overt indications. Commonwealth v. Reiland, 241 Pa.Super. 109, 359 A.2d 811 (1976); Commonwealth ex rel. Cabey v. Rundle, supra.

In Commonwealth v. Reiland, supra, the court held that, with certain exceptions, a parent has the authority to consent to a search of his child’s quarters in the parent’s home. The one exception noted by the court, People v. Nunn, 55 Ill.2d 344, 304 N.E.2d 81 (1973), involved a 19-year-old boy who locked his bedroom and an adjoining kitchenette, and told his mother not to enter nor to allow anyone else to enter. There, the expectation of privacy had been manifested in a clear, overt manner.

In another case, Commonwealth v. O’Neal, 287 Pa.Super. 238, 429 A.2d 1189 (1980), the court relied on the objective manifestation test although no family relationship existed. The court found that the appellant, a gratuitous guest, had exhibited a legitimate expectation of privacy by keeping the doors to his room and closet closed. Therefore, it upheld his right to privacy. In our case, there is no evidence that the appellant ever objectively manifested an expectation of privacy. Given appellant’s actual use of his room, his age, and the parent-child relationship involved, appellant did not have exclusive use and control of his bedroom as claimed.

The law is settled that a warrantless search may be made with the voluntary consent of a third party who possesses “common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 168, 172, 94 S.Ct. 988, 991, 993, 39 L.Ed.2d 242 (1974).

Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third party consent does not rest upon the law of property, with its attendant historical and legal refinements, . . . but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

Matlock, supra, 415 U.S. at 173, n.7, 94 S.Ct. at 993; Commonwealth v. Garcia, 478 Pa. 406, 387 A.2d 46 (1978).

Where such joint access or control exists, there can be no reasonable or legitimate expectation of privacy. Latshaw, supra.

Therefore, appellant’s mother, as one having joint access and control, could validly consent to the search of the room by police, and the drugs seized were properly admitted as evidence at trial.

Appellant contends that because he was home when the police arrived, they should have requested his consent, not the mother’s. Neither the Pennsylvania courts nor the United States Supreme Court have made such a distinction, and appellant does not present law from any other jurisdictions which is persuasive.

In the leading case of United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), the court upheld a third-party consent to search appellant’s residence which had been given by appellant’s common-law wife immediately after appellant was arrested in his front yard. The fact that appellant was available to give his consent did not seem to concern the court. Indeed, the law is clear that where two or more people have joint access and control over certain property, the voluntary consent of any of those people will provide the basis for a valid consensual search.

Appellant further contends that if his mother was empowered to consent to a search of his room, the consent was the result of police coercion and hence was invalid. We disagree and affirm the decision of the lower court on that issue.

To be effective, a consent to search must be voluntarily given with a total absence of duress or coercion, express or implied. Commonwealth v. Harris, 429 Pa. 215, 221, 239 A.2d 290, 293 (1968); Commonwealth v. Pichel, 229 Pa.Super. 103, 323 A.2d 113 (1974).

No one factor is determinative in a voluntariness inquiry. ... It is only by analyzing all the circumstances of an individual consent that it can be ascertained whether in fact it was voluntary or coerced. It is this careful sifting of the unique facts and circumstances of each case that is evidenced in our prior decisions involving consent searches.

Schneckloth v. Bustamonte, 412 U.S. 218, 233, 93 S.Ct. 2041, 2050, 36 L.Ed.2d 854 (1973).

Mrs. Lowery’s willingness to allow the search was amply demonstrated by her statement that if any drugs were in the house, she wanted them out. She was fully informed of her rights before signing the consent form and exhibited no reluctance to permit the search. Given those facts, her consent was voluntary. Therefore, the evidence obtained was lawfully seized and admitted into evidence.

Judgment of sentence affirmed.


text:
    451 A.2d 249
    Peter J. MEDVE v. Kevin J. WALAKOVITS. Appeal of Richard J. ORLOSKI.
    Superior Court of Pennsylvania.
    Argued Feb. 22, 1982.
    Filed Oct. 1, 1982.
    Petition for Allowance of Appeal Denied Feb. 17, 1983.

      Richard P. Abraham, Philadelphia, for appellant.
    William G. Ross, Bethlehem, for appellee.
    Howland W. Abramson, Philadelphia, for participating party.
    Before SPAETH, BROSKY and BECK, JJ.
   BROSKY, Judge:

This is an appeal from an order holding an attorney in contempt of court. The event which precipitated the contempt order was counsel’s late appearance at a pre-trial settlement conference. A novel issue of law is presented here: whether the element of intent necessary for a finding of contempt can be met by proof of recklessness. The trial court, in the person of Judge Mellenberg, did not address the case in precisely these terms. Nonetheless, we affirm the contempt order.

Appellant contends that his tardiness was the product of an oversight, rather than an intentional act; and that, therefore, he cannot be properly held in contempt. In particular, he states that he “lost track of time.” Such inadvertence is not, he argues, the equivalent of intent. Were these the only relevant facts in the case, we would agree. However, there are other elements in the chain of events which complicate the case for appellant.

Richard Orloski, plaintiff’s counsel in Medve v. Walakovits, was scheduled to appear at 10:15 a. m. for a pre-trial settlement conference with Judge Mellenberg. According to Orloski’s own sworn statement, he was in the front entrance of the courthouse “between 10:00 a. m. and 10:05 a. m.” He relates that immediately after this he met another attorney in the corridor and that they decided to go up to the fourth floor to strike another case from the trial list. When they arrived, neither the Court Administrator nor his deputy were present. “The secretary in the Court Administrator’s office indicated that we would have to wait for the Administrator or his Deputy, which we did.” (Statement in absence of transcript, Orloski, p. 4.)

After the administrator returned and he completed his business, Orloski went down four flights of stairs to get his papers for the pre-trial conference. At this point, he discovered that the time was about 10:25.

Mr. Orloski states that he then ran up five flights of stairs to the floor where the conference was to be held. Having arrived on the fifth floor, he saw counsel for the defendant, Walakovits, in conversation in the hallway, assumed that the conferences were running late and sat down to read a newspaper. When opposing counsel started to leave, at “about 10:35 a. m.,” Orloski asked and found out that the pre-trial conference in his case had been called in his absence and that the case was stricken. Orloski then proceeded to the conference room where he tendered his apologies and explanation to the court.

A $50 fine, payable to opposing counsel, was imposed on appellant as a summary punishment for contempt of court. The power of a court to take such an action is limited to certain circumstances. In relevant part, they are: “(2) Disobedience or neglect by officers, parties ... to the lawful process of the court.” 42 Pa.C.S.A. § 4131.

Statutory phrases as general as this one must be given definitional parameters by the decision of the courts. This is especially appropriate when, as here, the area is within the inherent powers of the courts. Decisions in recent years have added greatly to the interpretive gloss in this particular category—that of summarily holding attorneys in contempt for non-appearance or tardiness at court proceedings. Noting the factual contexts of these cases will put Orloski’s conduct in its legal perspective.

In 1976, the case of Commonwealth v. Washington, 466 Pa. 506, 353 A.2d 806 (1976), established that the element of intent was a necessary adjunct to disobedience or neglect in order for contempt to be proven. The defendant in that case failed to appear in court and a county detective found him asleep at home. “Appellant apologized to the court, and explained that he had gone to a party the night before and thought he had set his alarm.” 466 Pa. at 507, 353 A.2d at 806-7. Justice Manderino found that intent could not be shown under these circumstances.

A year later, another case with the same name reversed a contempt order for failure to appear in court because the judge knew that the attorney was engaged in another court and because the record did not show that the attorney had been notified about that scheduled appearance. Here again, the lack of requisite intent decided the case. Commonwealth v. Washington, 470 Pa. 199, 368 A.2d 263 (1977).

Neither of the Washington cases was very radical, once the element of intent was accepted. One could hardly have the intent not to appear in court while sleeping or if one did not even know about his scheduled appearance. The facts of a 1980 case gave the Supreme Court of the Commonwealth an opportunity to add depth to the definitional matrix. Justice Roberts wrote for the court that an attorney who called and notified the court when he knew he would be late due to another court proceeding running longer than expected was not contemptuous for lack of intent. In the Matter of Mandell, 489 Pa. 522, at 526, 414 A.2d 1013 at 1015 (1980).

The last contempt reversal we shall refer to is Weingrad v. Lippy, 300 Pa. Super. 76, 445 A.2d 1306 (1982). In that case, suggested points for charge were delivered to the trial judge 23 minutes late. While the judge had made it clear that he wanted the points delivered to him on time, the Superior Court found that the attorney had not acted with “wrongful intent” in that he had asked his secretary to come in an hour early to type the points. 300 Pa.Super. at 80, 445 A.2d at 1308.

In contrast with these four reversed contempt orders is Commonwealth v. Marcone, 487 Pa. 572, 410 A.2d 759 (1980). In that case, an attorney, informed that opposing counsel would be late, waited for his arrival instead of going directly to court. By the time he stopped waiting and got to court the proceeding was over. The attorney had been aware of the time and that he would be late arriving in court as a consequence of waiting for opposing counsel.

How can these cases best be used in analyzing Orloski’s actions for the presence, vel non, of intent? Rather than merely reciting, out of context, the legal rules or formulas stated in the cases, more guidance can be gained by looking to the factual calculus involved.

Orloski does not have the benefit of the exonerating circumstances present in the cases in which contempt orders were reversed. Unlike the appellant in the 1976 Washington case, he was both conscious and, at some points, aware of the time. He did not notify the court that he would be late, as did the attorney in the 1977 Washington case. There were no necessary time conflicts with other court proceedings as in the latter case or Mandell. (The case could have been stricken at any later time in the day.) Nor is there evidence of a good faith effort to comply as was obvious in Weingrad —at least not until after the harm was done and he was already late.

However, on the other side, Orloski also lacks the deliberate, conscious decision to be late that figured so significantly in the affirmance of Marcone’s contempt order.

As the above analysis demonstrates, prior case law is not dispositive in deciding the outcome of this appeal. The type of situation present here did not appear in those cases.

In making our decision here, we make note of two crucial moments in the chain of events leading up to Orloski’s tardy arrival. The first occurred when he decided, immediately after 10:00 to 10:05, to go to the Court Administrator’s office to strike a case. Considering his obligation to be in conference at 10:15, this was already “cutting it close.”

The second critical moment occurred when Orloski decided to wait for the Court Administrator’s return. We cannot hold that at the moment he decided to wait that he also consciously intended to be late for the pre-trial conference. Orloski denies any such intent and, of course, this court cannot ascertain the specific subjective mental state of any person.

But such an admission or mind-reading is superfluous because Orloski can be held, as a matter of law, to have intended the natural consequences of his acts. The law of intentional torts and of most specific intent crimes is satisfied with such a method of proof. We hold that it is equally suitable here.

As previously stated, Orloski met another attorney just after 10:00 to 10:05 on the first floor. They proceeded to the fourth floor, spoke to a secretary and then waited for an Administrator’s return. Even had an Administrator arrived immediately, it is highly unlikely that Orloski could have transacted his business and gotten to the conference on time. At the moment he decided to wait for the Administrator, his resulting tardiness at the conference appears to have been substantially certain. At the very least, he acted with reckless disregard for such tardiness. Either such substantial certainty or such reckless disregard will suffice to establish the intent required for contempt. It is to be emphasized that there existed here a conscious, deliberate act which gave rise to a substantial certainty of the forbidden result; and, alternatively, that act evinced a reckless disregard for the likely and forbidden result.

Case law in this area does not directly support this conclusion. The question has simply not been treated heretofore. We hold that intent can be proved through either the substantial certainty or reckless disregard methods described herein. We adopt this standard because the consequences of not doing so are unsatisfactory. By not allowing intent to be shown by the implicators of one’s deliberate acts, legitimate interests of the courts to their dignity and efficient operation of their court calendar would have no protection.

Order affirmed.

      . Orloski, like Marcone, did miss the entire proceeding.


author: ROWLEY, Judge:

text:
    451 A.2d 252
    COMMONWEALTH of Pennsylvania v. Earl Eugene BOX, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 24, 1982.
    Filed Oct. 1, 1982.

      Larry E. Stone, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   ROWLEY, Judge:

On September 22, 1975, appellant was convicted, after a jury trial, of murder in the second degree and two counts of robbery. He was sentenced to life imprisonment for the murder conviction and ten to twenty years imprisonment for each robbery conviction; the three sentences to be served consecutively. The judgment of sentence was affirmed in Commonwealth v. Box, 481 Pa. 62, 391 A.2d 1316 (1978). During both his trial and appeal, appellant was represented by Charles O. Barto, Jr., Esquire.

On December 6, 1979, appellant filed a petition for relief under the Post-Conviction Hearing Act (PCHA). On January 28, 1981, appellant’s petition was denied without a hearing. This appeal followed.

Two issues are raised on appeal: 1) Was trial counsel ineffective in failing to file a pre-trial motion to suppress evidence and in failing to seek a charge to the jury on voluntary manslaughter?; and 2) Was appellant denied a fair trial by the introduction of evidence of unrelated offenses?

The right to an evidentiary hearing on a PCHA petition is not absolute. Commonwealth v. Cimaszewski, 234 Pa.Super. 299, 339 A.2d 95 (1975). A hearing may be denied if petitioner’s claim is patently frivolous and is without a trace of support either in the record or from other evidence. 19 P.S. § 1180-9. A "PCHA petition may not be summarily dismissed, however, as “patently frivolous” when the facts alleged in the petition, if proven, would entitle petitioner to relief. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978). We have concluded that by this standard appellant’s claims are not “patently frivolous.” Therefore, we will remand for an evidentiary hearing on appellant’s petition.

Appellant initially alleges that he was denied effective assistance of counsel. In reviewing allegations of ineffective assistance, the court must first determine whether the issue underlying the claim is of arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

In his supplemental petition, appellant first alleges that counsel was ineffective in failing to file a motion to suppress evidence obtained as a result of an alleged illegal search of appellant’s dwelling. The Commonwealth argues that this issue is without merit because appellant did not have standing to challenge the search. The Commonwealth bases its argument on a statement made by appellant during his trial testimony. When asked if he lived at the apartment in question, appellant replied, “I used to go there, in and out, you know, but I never lived there.” We cannot determine, from that statement alone, that appellant lacked a sufficient interest in the premises to challenge the search. In his supplemental petition, appellant appears to allege a possessory interest since he characterizes the apartment as “his dwelling.” Therefore, we cannot say, on the basis of the record before us, that appellant’s claim is clearly without merit.

Appellant next alleges that counsel was ineffective in failing to request a charge on voluntary manslaughter. Appellant, at the time of his trial, was entitled to such a charge, on request, regardless of the evidence presented or of his defense. Commonwealth v. Manning, 477 Pa. 495, 384 A.2d 1197 (1978); Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142 (1974), cert. denied, 419 U.S. 1000, 95 S.Ct. 316, 42 L.Ed.2d 274 (1974). Therefore, this issue is of arguable merit.

However, to say that the issues are of arguable merit if the facts alleged are proven is not to conclude that counsel was per se ineffective in not raising them. Commonwealth v. Sherard, 483 Pa. at 194, 394 A.2d at 977. Counsel is deemed to be constitutionally effective if his conduct had some reasonable basis designed to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). In this case, however, we cannot determine if such a reasonable basis existed since the record contains no evidence with regard to counsel’s reasons for not moving to suppress the evidence or for failing to request an instruction on voluntary manslaughter. Appellant should be given an opportunity to prove, if he can, that no such reasonable basis existed. See Commonwealth v. Sherard, supra.

Appellant also alleges that certain evidence of unrelated robberies occurring during the three week period prior to this crime was improperly admitted during his trial, thereby depriving him of due process of law. This issue could have been raised on direct appeal. Therefore, it is waived for purposes of PCHA relief unless appellant establishes extraordinary circumstances justifying his failure to raise the issue post-trial. Commonwealth v. Unger, 494 Pa. 592, 432 A.2d 146 (1980). The discussion of this issue in a supplemental petition filed by appellant is phrased in terms of ineffective assistance of counsel. Ineffective assistance of counsel, if proven, would constitute “extraordinary circumstances” which would preclude a waiver. Commonwealth v. Holmes, 468 Pa. 409, 364 A.2d 259 (1976). The PCHA court must determine whether the issue of the admissibility of this evidence has been waived. See Commonwealth v. Cimaszewski, 234 Pa. Super, at 312, 339 A.2d at 97. To do so, it will be necessary to determine if counsel was ineffective in failing to raise this issue on direct appeal.

Order vacated and case remanded for further proceedings. Jurisdiction relinquished.

WICKERSHAM, J., did not participate in the consideration or decision of this case.

      . Post Conviction Hearing Act, Act of January 25, 1966, P.L. 1580 (1965), § 1 et seq., 19 P.S. § 1180-1 et seq., repealed, Act of April 28, 1978, P.L. 202, No. 53, § 2(a) (1397) effective June 27, 1980, as amended by Act of June 26, 1980, P.L. 265, No. 77, § 2 delaying repeal until June 27, 1981, as further amended by the Act of June 26, 1981, P.L. 123, No. 41 § 1 delaying repeal until June 26, 1982, repealed by Act of May 13, 1982, P.L. 587, No. 1982-122, § 3, replaced by 42 Pa.C.S. § 9541 et seq.

      . The Commonwealth argues that it is “conceivable” that counsel did not request a manslaughter charge because he did not want “to implant in the minds of the jurors that anything less than an acquittal would be satisfactory.” We can not, however, make such an assumption on the basis of this record.

      . Contrary to appellant’s allegations, counsel did object to the introduction of this evidence at trial. However, the issue was not raised in post-trial motions, nor was it pursued on appeal.


author: POPOVICH, Judge:

text:
    451 A.2d 255
    In re ESTATE OF Renee S. ROOS, Deceased. Appeal of Adrienne Roos WOOD.
    Superior Court of Pennsylvania.
    Argued Nov. 5, 1981.
    Filed Oct. 1, 1982.
    Petition for Allowance of Appeal Denied Jan. 20, 1983.

      William A. Harvey, Philadelphia, for appellant.
    John J. Speese, Philadelphia, for participating parties.
    Before BROSKY, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the court below which granted a petition for counsel fees in the amount of $900.00 to appellee, Donald Copeland. We affirm.

The facts, as summarized by the court below, are as follows:

The underlying cause of action is an appeal by appellant, Adrienne Wood, to the Court of Common Pleas of Philadelphia County from probate by the Register of Wills of a writing purported to be her mother’s will. Appellee, Donald Copeland, was the scrivener of that will. In that appeal, which was filed with the Orphans’ Court Division on February 25, 1980, Adrienne Wood named Copeland as a party. She alleged that

“.. . Maggie Kephart introduced decedent to attorney Donald Copeland . . . and by and through Donald Copeland, did exert mental pressure and undue influence upon decedent to persuade her to execute said writing. .. .” Par. 5(b), Appeal.

Adrienne Wood also alleged that

“[Appellant] believes and expects to be able to prove that the said paper writing was the product of fraud on the part of Maggie Kephart and the scrivener Donald Copeland, acting together . . .. ” Par. 6, Appeal.

Preliminary objections to the appeal were filed alleging, inter alia, that the appeal was insufficiently specific. That objection was sustained; however appellant was granted leave to file, within 90 days, an amended appeal. The extension was granted in order to permit Adrienne Wood to avail herself of discovery in aid of the pleading. Thereafter, on August 27, 1980, appellant’s attorney took Attorney Copeland’s deposition, and on September 9, 1980, appellant filed her “Amended Petition on Appeal from Probate.” The amended petition did not name Attorney Copeland as a party, and the foregoing references to him quoted from the initial appeal were deleted from the amended appeal. On October 10, 1980, Copeland was formally “dropped from the record as a party respondent.” His petition for counsel fees was filed November 3, 1980, and the matter was heard on January 6, 1981.

At the hearing, appellee testified that the allegations of wrongdoing and impropriety leveled against him by the first appeal from probate were totally without foundation. He stated that he had no interest in the proceedings, being neither a beneficiary of the estate, relative of the decedent, nor an executor. He had no understanding with any heirs about the estate. He further testified that his counsel had expended a total of 12.45 hours in representing him as a party to the proceedings. No testimony was offered by or on behalf of the appellant.

The court entered an order awarding appellee counsel fees, and the instant appeal followed.

Appellant raises the following issues: (1) whether the trial court erred as a matter of law in holding that appellee was entitled to an award of attorney’s fees under Section 2503 of the Judicial Code, 42 Pa.C.S.A. § 2503, where appellee failed to present any evidence to show that appellant’s conduct in commencing the action was arbitrary, vexatious, or in bad faith; and (2) whether the trial court erred as a matter of law in holding that appellant’s answer to paragraph 8 of appellee’s petition constituted an admission under Rule 1029 of the Rules of Civil Procedure. For the reasons herein stated, we affirm the trial court’s order.

To begin with, appellant’s claim concerning sufficiency of the evidence requires an inquiry into whether appellee sustained his burden of proving by a preponderance of the evidence that the conduct of appellant in commencing the lawsuit was arbitrary, vexatious or in bad faith. When examining appellant’s contention, we must remember the following guidelines:

“when a litigant ‘has the burden of proof’ it means that he has made a claim which he cannot expect to have accepted until he offers proof sufficient to support it; and the least degree of proof any claimant can offer in order to obtain persuasion is proof which fairly outweighs the probative value of any proof offered against the claim. If the evidence does not fairly preponderate in favor of his claim he has failed to carry his burden of proof. Since proof by a “preponderance of the evidence’ is the lowest degree of proof recognized in the administration of justice, the evidence the burdened party offers does not become proof until it preponderates in evidentiary weight against the opposing evidence.
Se-Ling Hosiery v. Margulies, 364 Pa. 45, 48-49, 70 A.2d 854, 856 (1950). (emphasis in original.)

In this connection, we also have said that the burden of proof may shift during the course of the trial in the following manner:

“ ‘If he [the plaintiff] makes a prima facie case, and nothing is done by the other side to answer it “the plaintiff wins.” ’ * * * there are points at which the onus of proof shifts, * * * it is not a burden which rests forever on the person on whim it is ñrst cast, but as soon as he, in his turn, finds evidence which, prima facie, rebuts the evidence against which he is contending, the burden shifts until again there is evidence which satisfies the demand. Now, that being so, the question as to onus of proof is only a rule for deciding on whom the obligation rests of going further, if he wishes to win.’ ” Arco Metalscraft Co. v. Shaw, 364 Pa. 39, 44, 70 A.2d 850, 853 (1950) (Emphasis added).

With this framework in mind, the applicable statute, 42 Pa.C.S.A. § 2503, set forth below, which formed the basis of appellee’s petition for counsel fees must be scrutinized:

“§ 2503. Right of participants to receive counsel fees The following participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter:
(1) The holder of bonds of a private corporation who successfully recovers due and unpaid interest, the liability for the payment of which was denied by the corporation.
(2) A garnishee who enters an appearance in a matter which is discontinued prior to answer filed.
(3) A garnishee who is found to have in his possession or control no indebtedness due to or other property of the debtor except such, if any, as has been admitted by answer filed.
(4) A possessor of property claimed by two or more other persons, if the possessor interpleads the rival claimants, disclaims all interest in the property and disposes of the property as the court may direct.
(5) The prevailing party in an interpleader proceeding in connection with execution upon a judgment.
(6) Any participant who is awarded counsel fees as a sanction against another participant for violation of any general rule which expressly prescribes the award of counsel fees as a sanction for dilatory, obdurate or vexatious conduct during the pendency of any matter.
(7) Any participant who is awarded counsel fees as a sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of a matter.
(8) Any participant who is awarded counsel fees out of a fund within the jurisdiction of the court pursuant to any general rule relating to an award of counsel fees from a fund within the jurisdiction of the court.
(9) Any participant who is awarded counsel fees because the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith.
(10) Any other participant in such circumstances as may be specified by statute heretofore or hereafter enacted.
1976, July 9, P.L. 586, No. 142, § 2, effective, June 27, 1978.” (Emphasis added.)

We have reviewed the record in the manner expressed above and conclude that the evidence appellee presented was sufficient to establish a cause of action under 42 Pa.C.S.A. § 2508(a). The testimony appellee presented was as follows:

“BY MR. SPEESE [Attorney for Appellee]:
Q Mr. Copeland, were any of the allegations made against you in [the proceedings in which appellant alleged that appellee committed a fraud] true?
A Absolutely not.
Q What interest, if any, did you have in these proceedings?
A None whatsoever. I had no interest then and I have no interest at this time. Regardless of who is successful in the appeal from probate, I don’t stand to gain one thing one way or the other.
Q In other words, you are not a beneficiary?
A I’m not a beneficiary.
Q You’re not an executor?
A I’m not an executor.
Q You’re not a relative?
A I’m not a relative. And I have no—
Q You’re not a legatee or devotee?
A No, I am not. And I have no understanding with any of the heirs with respect to anything that they may gain by the outcome of this will.
Q In Paragraph 9 of your petition, Mr. Copeland, you stated as follows: Commencing this action against petitioner, and the allegations contained therein against petitioner, were arbitrary, vexatious or in bad faith. How do you support that, if you can?
A Well, the allegations against me were simply not true, they are just not true and there are no facts to support those allegations; that it was very vexating to me to see such allegations when I knew that there was no fact to support them.
I couldn’t understand why they would do such a thing because joining me in the action as a party didn’t gain them anything. I was not a party in interest. And this was an action to set aside a will. And joining me in the action did nothing to further that other than, the only thing I could think of was to put pressure on me. I was a witness; I was not a party.
And then to compound it with the answer to preliminary objections made it even more vexatious.
It caused me to spend a lot of additional time. I had to go to my partner, John Speese, and ask him to represent me. And he spent a good bit of time.
I have been at the bar almost twenty—well, twenty years now. And this is the first time that anything like this has ever happened to me. I have never had anything like that alleged against me.
Q Have you even been accused of any wrongdoing since you’ve been a member at the bar?
A I have not. And I feel I enjoy a good reputation. Q Excuse me, Mr. Copeland.
MR. SPEESE: May I ask you to identify this. (Document entitled—‘Excerpted from time records of
J.J.S.’ marked for identification as Petitioner Exhibit No. 1.)
BY MR. SPEESE:
Q Mr. Copeland, I show you a paper writing, undated, and ask you to identify it, if you can.
A Yes, this is just a statement excerpted from the time records of John Speese showing the time which he expended on my behalf in this proceeding. This was taken from our records at our law firm. I personally checked the records yesterday and verified that these hours were marked in our records. And they do parallel my time, because in many of these particular instances where these times are marked down, I was working with Mr. Speese on certain aspects of the case.
MR. SPEESE: That’s our case, Your Honor. Your witness, Mr. Harvey [Attorney for Appellant].” Notes of Testimony at 9-12.
(Emphasis added).

After the preceding testimony was introduced, appellant’s attorney cross-examined appellant during the trial; however, appellant presented no evidence on her behalf. It appears that appellant’s position was as stated in the answer she filed; that is, appellant relied on her attorney’s advice. On this record, the trial court could have concluded by a preponderance of the evidence that the purpose behind appellant’s action in commencing the lawsuit was “arbitrary, vexatious or in bad faith.” 42 Pa.C.S.A. § 2503. See Shelton v. Evans, 292 Pa.Super. 228, 233, 437 A.2d 18, 20 (1981) (“the jury could reasonably have concluded that the purpose behind the [malicious prosecution] complaints was not to ‘bring[] an offender to justice’ but to induce appellee to relinquish some or all of his claims as sole heir named in the will.”) (Montgomery, J., dissenting on other grounds). Moreover, we recognize that once “ ‘the [plaintiff] makes a prima face [sic] case, and nothing is done by the other side to answer it[’] the plaintiff wins.” Arco Metalscraft Co. v. Shaw, 364 Pa. at 44, 70 A.2d at 853 (emphasis added). Hence, because appellant merely alleged, without producing a scintilla of evidence, that her actions were not vexatious since she relied on her attorney, appellee, the plaintiff, wins.

Even the trial court noted that “had it[, i.e., appellant’s allegation of reliance,] been established, an interesting question would be presented as to whether fees should be assessed against [either] party or counsel.” Trial Court’s Opinion at 5.

Appellant additionally argues that “[cjontrary to the opinion of the lower court, Opinion, at pages 4-5 [R.R. at 77-78], it was not Appellant who had the burden of presenting evidence that her conduct was proper; rather, the burden of proof was and remains on the Petitioner[, appellee] who had the burden of proof in the context of the case.” Brief for appellant at 17. A review of the court’s opinion, however, shows that the trial court in a less than precise fashion “was not placing the burden of proof on appellant but showing its belief that appellant had not presented sufficient evidence to rebut” the evidence proffered by appellee. See Commonwealth v. Moore, 443 Pa. 364, 371, 279 A.2d 179, 183 (1971).

The court stated the following in its opinion:

“In the present case, there is a formal admission that the allegations against the petitioner were ‘without cause, justification or facts to support (them).’ Even were that not so, the same conclusion is virtually inescapable from the record, and from the fact that, although given the opportunity to do so, respondent offered no evidence at the hearing. We note that in new matter, made a part of her answer, respondent averred that ‘The act of Respondent in naming Petitioner as a party in interest in the original appeal was based upon a good faith reliance upon advice of counsel. ’ Petitioner replied denying that aver- went and demanded proof thereof. Since respondent present no evidence even her reliance upon advice of counsel has not been established.

Trial Court’s Opinion at 5 (Emphasis added).

Under the circumstances of this case, we conclude that the trial court properly decided the issue.

Appellant’s next contention concerns whether the statement which she set forth in her answer (Paragraph # 8) constituted an admission of the allegation set forth in appellee’s complaint. With respect to this aspect of appellee’s petition, the pertinent portions of the petition and answer are as follows:

“PETITION FOR CITATION ON ADRIENNE ROOS WOOD

8. Petitioner was originally joined in this action without cause, justification or facts to support the allegations against petitioner.
9. Commencing this action against Petitioner, and the allegations contained therein against Petitioner, were arbitrary, vexatious or in bad faith.”

The answer appellant filed contained inter alia the following:

“8. Denied. It is specifically denied that at the time of the original Petition there did not exist cause, justification or facts sufficient to support the allegations made against Petitioner.
9. Denied. It is specifically denied that the original appeal from probate naming Petitioner as a party was arbitrary, vexatious or in bad faith. In any event, these averments are conclusions of law to which no response is required.
10. Denied. After reasonable investigation, Respondent lacks any information sufficient to form a belief as to the truth or voracity [sic] of this averment, and it is accordingly denied. Strict proof thereof is denied.
WHEREFORE, Respondent prays that this Court dismiss the within Petition.
NEW MATTER
11. The action of Respondent in naming Petitioner as party in interest in the original appeal was in good faith and based upon probable cause.
12. The act of Respondent in naming Petitioner as a party in interest in the original appeal was based upon a good faith reliance upon advice of counsel.
WHEREFORE, Respondent prays that this Court dismiss the within Petition.”

Rule 1029 which governs our analysis on this issue contains the following language:

“(a) A responsive pleading shall admit or deny the averments of fact in the preceding pleading or part thereof to which it is responsive. Admissions and denials in a responsive pleading shall refer specifically to the paragraph in which the averment admitted or denied is set forth.
(b) Averments in a pleading to which a responsive pleading is required are admitted when not denied specifically or by necessary implication. A general denial or a demand for proof, except as provided by subdivision (c) of this rule, shall have the effect of an admission.
(c) An averment shall be deemed to be denied if proof thereof is demanded and the pleader states either (1) that after reasonable investigation he is without knowledge or information sufficient to form a belief as to the truth of the averment, or (2) that he is without such knowledge or information because the means of proof are within the exclusive control of an adverse party or hostile person. The pleader shall not be required to state what investigation he has made or to rely upon information received from an adverse party or hostile person.
(d) Averments in a pleading to which no responsive pleading is required shall be deemed to be denied.” (Emphasis added).

Although the trial court ruled that appellant’s answer as framed in Paragraph 8 constituted an admission, our analysis of the issue leads to the conclusion that no responsive pleading was required because the corresponding allegation appearing in appellee’s complaint (i.e., “Petitioner was originally joined . . . without cause, justification or facts to support the allegations”) was not strictly speaking an averment of fact. See Kappe Associates v. Aetna Casualty & Surety Co., 234 Pa.Super. 627, 631, 341 A.2d 516 (1975) (where complaint stated that sums of money were due and owing, court held that such an allegation was not an averment of fact.)

The legal standard to be applied was articulated in Nappe:

“Rule 1029 does not define an ‘averment of fact’ and there are few appellate decisions which discuss the problem. The Supreme Court addressed the issue in Srednick v. Sylak, 343 Pa. 486, 492-493, 23 A.2d 333, 337 (1941): ‘The general rule is that admissions of fact in pleadings are admissible, but that the pleader’s conclusions of law are not admissions of facts in issue. Whether an allegation is of fact or law is determined by the context disclosing the circumstances and purpose of the allegation. In perhaps the broad sense, the statement that a party is liable to another is a statement of fact, but the same words are in general use as a statement of law, and when intended to be so used the statement may not be treated as an admission of fact.’ While this test does not conclusively answer the question before us, consideration of appellant’s entire answer compels the conclusion that appellant did not ‘unequivocally and unqualifiedly’ admit that it owed appellee $19,162.16.”
Id., 234 Pa.Superior Ct. at 632, 341 A.2d at 519 (Emphasis added).

Likewise, our review of appellant’s answer as a whole necessitates a conclusion that the language couched in the complaint, “without cause, justification... ”, etc., although in a “broad sense the statement is a ... statement of fact, [those] same words are in general use ... a statement of law, and when intended to do so may not be treated as an admission of fact. Id. In any event, appellant’s entire answer reveals that she did not admit “unequivocally and unqualifiedly” the allegations made in the complaint. Id. Nonetheless, our resolution of the Rule 1029 issue is not dispositive of the instant case because, as stated previously, “nothing [was] done by the other side[, appellant] to answer appellee’s allegations at the hearing.”. Arco Metalscraft Co. v. Shaw, 364 Pa. at 44, 70 A.2d at 853. Under these circumstances, the court’s order below which granted appellee’s petition for counsel fees is affirmed.

Order affirmed.

      . An order allowing counsel fees is a final, appealable order. Henderson v. Henderson, 458 Pa. 97, 327 A.2d 60 (1974).

       In Thompson v. Dyson, 120 Kan. 591, 244 P. 867, 868, it was held: ‘ “Burden of proof’ means preponderance of evidence, that is, greater weight of evidence, in view of all facts and circumstances of case.’
      In Lynch v. Figge, 200 App.Div. 92, 192 N.Y.S. 873, 875, it was held: ‘The “burden of proof’ means on whom rested the duty of furnishing a preponderance of the evidence.’
      In accord: State v. Paulsgrove, 203 Mo. 193, 101 S.W. 27, 30; Holloway v. Texas Indemnity Ins. Co., Tex.Cr.App., 40 S.W.2d 75, 77.”

      . Because the language of the statute is disjunctive, the trial court could have concluded that appellant’s conduct was either arbitrary, vexatious, or in bad faith. Vexatious has been defined as “instituted without sufficient grounds and serving only to cause annoyance.”
        Santoro v. City of Philadelphia, 59 Pa.Cmwlth. 114, 122, 429 A.2d 113, 117 (1981) (quoting The Webster New Encyclopedia International Dictionary, 1975). Bad faith, as that term has been defined, is “ ‘fraud, dishonesty, or corruption.’ ” Frick v. McClelland, 384 Pa. 597, 600, 122 A.2d 43, 45 (1956) (quoting McNair’s Petition, 324 Pa. 48, 187 A. 498, 106 A.L.R. 1373). Additionally, the word “arbitrary” means “based on random or convenient selection or choice rather than on reason or nature.” Webster’s Third New International Dictionary, 1976. On the state of the instant record, we are satisfied that the trial court could have reasonably concluded that appellant’s conduct was either arbitrary or vexatious.

       This statement infers that respondent may have had the burden of going forward with the evidence in the context of the case. Indeed, where a prima facie case is made out, as here, respondent remains silent at her own peril.

       Hac] it been established, an interesting question would be presented as to whether fees should be assessed against party or counsel.”

      . We note that even the trial court stated that the pleading issue was not dispositive when it articulated the following:
      “[i]n the present case, there is a formal admission that the allegations against the petitioner, [appellee] were without cause, justification or facts to support (them). Even were that not so, the same conclusion is virtually inescapable from the record, and from the fact that, although given the opportunity to do so, respondents appellant,] offered no evidence at the hearing. Thus, in view of the above, appellant is not entitled to relief.” (emphasis added)
      Additionally we “may affirm the action of a lower court on a different rationale than that advanced by the lower court....” Commonwealth v. Keller, 292 Pa.Super. 165, 170 n. 5, 436 A.2d 1203, 1206 n. 5 (1981) (quoting Commonwealth v. Meischke, 273 Pa. Super. 134, 139 n. 3, 416 A.2d 1126, 1128 n. 3 (1979).


author: PER CURIAM:

text:
    451 A.2d 261
    COMMONWEALTH of Pennsylvania v. Troy Eugene KLINGENSMITH, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 9, 1982.
    Filed Oct. 1, 1982.

      Donald R. Marsh, Indiana, for appellant.
    Gregory Allen Olson, Assistant District Attorney, Indiana, for Commonwealth, appellee.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   PER CURIAM:

On December 8, 1980, appellant, Troy Eugene Klingensmith, was found guilty by a jury of robbery and aggravated assault. Post-verdict motions were denied and appellant was sentenced to a period of incarceration of seven and one-half years to fifteen years. Having also been charged with six separate counts of burglary and related offenses, he entered guilty pleas thereon and was sentenced to five concurrent terms of imprisonment of not less than seven and one-half years nor more than fifteen years and one period of probation of ten years to be served consecutively to the other sentences. All of these sentences were imposed on June 22, 1981. On June 30, 1981, appellant filed with the trial court a “MOTION TO WITHDRAW GUILTY PLEAS.” On July 21, 1981, the lower court (per EARLY, J.) ordered that an argument on said motion be held on October 7,1981. Prior thereto, however, appellant filed this direct appeal from judgment of sentence on July 9, 1981.

We affirm the judgment of sentence for robbery and remand the record as to the six guilty pleas to the trial court for disposition of appellant’s motion challenging those pleas.

The facts concerning the robbery may be briefly stated: Appellant entered the home of Ford and Charlotte Laney in Clymer, Pa., in the evening of September 14, 1980. Masked and armed, appellant demanded car keys and money of the victims. When Mr. Laney attempted to disarm appellant, the gun discharged wounding the victim.

Appellant now raises four issues: that the court erred in refusing to suppress Mr. Laney’s identification; that the court erred in admitting into evidence the shirt worn by appellant during the incident; that the court erred in denying his demurrer; that the court erred when it denied appellant’s motion, made for the first time after the Commonwealth had rested its case, to subpoena alibi witnesses including his parents.

We have thoroughly examined the record in light of these assertions and find them to be without merit. The trial court adequately addressed these matters in its opinion, and we find no need to comment further.

In order to clarify a somewhat confusing record, we must retrace the procedural history of this case to dispose of the appellant’s last claim in regard to his six guilty pleas.

After post-verdict motions in the robbery trial were denied on January 8,1981, appellant the very next day entered pleas of guilty on six separate burglary charges. On February 5,1981, appellant filed a motion to withdraw all of those pleas averring that the pleas were invalid “in that the elements of the charges to which he pleaded guilty were not adequately explained to him by the court because it was the understanding of Defendant that, in return for his pleas of guilty in these cases, any period of incarceration would be served in the Indiana County Jail.” (See Record, “Motion to Withdraw Guilty Pleas”) On February 10, 1981, the trial court granted this motion and ordered the cases to be tried. On May 4, 1981, again eschewing trial for the six remaining felonies, appellant re-entered his guilty pleas. Finally, on June 22, 1981, he was sentenced for the robbery by Judge Handler and then by Judge Early on the guilty pleas.

It is apparent, then, that we are unable to address appellant’s final claim, i.e., that his pleas were invalid. We do not have before us any evidence that Judge Early disposed of appellant’s challenge to the validity of his pleas. See Pa.R. Cr.P. 321. Since there is no final order before us, we are guided by Rule 343 of the Rules of Appellate Procedure:

“If a timely motion has been filed pursuant to Rule 321 of the Pennsylvania Rules of Criminal Procedure (challenge to guilty plea), any appeal taken as of right shall be from the final order disposing of such motion. Such timely motion shall have the effect, for the purposes of Rule 1701(b)(3) (authority of lower court or agency after appeal), of an order expressly granting reconsideration of the judgment previously entered on the plea of guilty. Note: Pa.R.Crim.P. 321 provides a procedure whereby a timely motion challenging the validity of a pleas of guilty, or the denial of a motion to withdraw a plea of guilty, shall be heard by the lower court. In such event, the time for filing an appeal from the judgment on the plea does not begin to run until such motion is deceded by the lower court.
In the event an appeal from the judgment on a plea of guilty has been filed before a timely motion under Pa.R. Crim.P. 321 has been made, the filing of such motion acts as an automatic grant of reconsideration under Rule 1701(b)(3) (authority of lower court or agency after appeal), so as to render inoperative the prior appeal. In such event, an appeal could be filed anew after disposition of the Pa.R.Crim.P. 321 motion.
Adopted June 29, 1977, effective Sept. 1, 1977; amended May 22, 1978, effective July 1, 1978, as to cases in which sentence is imposed on or after the date pursuant to guilty pleas.”

In accordance therewith, we remand the record for disposition of appellant’s motion in regard to his guilty pleas.

Judgment of sentence affirmed as to the robbery conviction.

Jurisdiction is not retained by this court.

      . The sentencing transcript indicates that these pleas were entered on January 9, 1981, and the record before us makes no mention of the re-entry of the pleas on May 14, 1981. This latter date is set forth by appellant in his brief at p. 18.


author: PER CURIAM.

text:
    451 A.2d 263
    COMMONWEALTH of Pennsylvania, Appellant, v. Bernett Lee JOHNSON.
    Superior Court of Pennsylvania.
    Argued June 15, 1982.
    Filed Oct. 1, 1982.
    Petition for Allowance of Appeal Denied Jan. 20, 1983.

      Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellant.
    Diane Barr Quinlin, Assistant Public Defender, Pittsburgh, for appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   PER CURIAM.

Appellee Bernett Lee Johnson was charged with robbery, theft and receiving stolen property in connection with a drugstore robbery. Through counsel, he filed a motion to suppress photographic identification, preliminary hearing identification and subsequent in-court identification. After a hearing, the Honorable Henry R. Smith, Jr., granted appellee’s motion as to all identifications except the initial photo array. The Commonwealth appealed. We reverse.

The relevant facts are as follows. On December 13, 1980, a man entered the Regent Pharmacy and purchased cigarettes from the cashier, Chris Federonko. He spent some time looking around the store, exchanged a few words with the cashier and finally approached the counter and demanded money. There was some conversation at that time over the amount of money. After the man left, Ms. Federonko called the police and gave them a description. The entire incident took three or four minutes, the store was well-lighted by fluorescent lights and the man and the cashier were the only persons in the store area at the time. Ten days after the robbery, the police showed Ms. Federonko a photographic array. Without hesitation, she selected appellee’s photograph. Several of the photos in the array, including appellee’s, were not true photographs but photocopies. The following day the police obtained the photograph from which the copy had been made and showed it to Ms. Federonko. Upon arriving for the preliminary hearing on January 5, 1981, Ms. Federonko recognized appellee seated in the hearing room. He was the only black in the room and she did notice that he was handcuffed. She identified him as the robber and observed the photographs during the course of her testimony at the preliminary hearing. Judge Smith found that the showing of the single photograph was highly suggestive and suppressed all identification subsequent to that time,

The suggestiveness of an identification procedure alone does not warrant its exclusion. Commonwealth v. Ransome, 485 Pa. 490, 402 A.2d 1379 (1979). Indeed, our Supreme Court has recognized that all one-to-one identifications are suggestive. Commonwealth v. Sexton, 485 Pa. 17, 400 A.2d 1289 (1979). The question, however, is not whether the procedure was suggestive but whether, despite the suggestiveness, there are other factors which clearly and convincingly demonstrate that the identification has an independent origin in the witness’s observations at the time of the crime. Commonwealth v. Fowler, 466 Pa. 198, 352 A.2d 17 (1976). To determine the reliability of an in-court identification subsequent to a suggestive identification procedure, we must consider:

(1) the manner in which the pretrial identification was conducted; (2) the witness’ prior opportunity to observe the alleged criminal act; (3) the existence of any discrepancies between the defendant’s actual description and any description given by the witness before the photographic identification; (4) any previous identification by the witness of some other person; (5) any previous identification of the defendant himself; (6) failure to identify the defendant on a prior occasion; and (7) the lapse of time between the alleged act and the out-of-court identification.

Commonwealth v. Lavelle, 277 Pa.Super. 518, 419 A.2d 1269 (1980). In applying these criteria to the instant case, we find that the initial photo array, from which Ms. Federonko selected appellee was not at all suggestive, that she had quite a long period of time to observe appellee in a well-lighted area prior to and during the crime, that he, in fact, had been only two feet away from her and had carried on conversations with her and that she had always and without hesitation identified appellee and no one else as the robber. These facts more than sufficiently outweigh any suggestiveness present in the one-time showing of the single photograph to the witness. This same reasoning would apply to the preliminary hearing identification. Any suggestiveness that may have been present at that time is inherent in the criminal justice system and is sufficiently outweighed by the factors outlined above.

Therefore, we reverse the suppression order of the lower court and remand for trial consistent with this opinion. We do not retain jurisdiction.

JOHNSON, J., dissented.

      . Since the Commonwealth will be substantially handicapped in prosecuting this case because it is unable to present all its available evidence, we have jurisdiction to hear the appeal. Commonwealth v. Taper, 434 Pa. 71, 253 A.2d 90 (1969).

      . Although Judge Smith’s opinion states that the witness was shown the photograph again just prior to the preliminary hearing, there is no support in the record for this finding, so we are not bound by it. Commonwealth v. Hall, 475 Pa. 482, 380 A.2d 1238 (1977).


text:
    451 A.2d 265
    In the Interest of Tasha VOSBURG, a/k/a Tasha Vosburgh, a Minor. Appeal of Wade VOSBURG and Shirley Vosburg, his wife. In the Interest of Tasha VOSBURG, a/k/a Tasha Vosburgh, a Minor. Appeal of LACKAWANNA COUNTY CHILDREN & YOUTH SERVICES.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1980.
    Filed Oct. 8, 1982.
    Charles J. Aliano, Susquehanna, for Wade and Shirley Vosburg, appellants, (at No. 790) and participating parties (at No. 1212).

      George Houck, Scranton, for Lackawanna County, appellant, (at No. 1212) and participating party (at No. 790).
    John C. Mascelli, Scranton, for O’Donnell participating parties.
    Before HOFFMAN, WICKERSHAM and VAN der VOORT, JJ.
   PER CURIAM:

By Order Per Curiam, filed on April 20, 1981, we remanded this custody case for prompt supplementation of the record and we retained jurisdiction. We have since been advised by the lower court that the parties effected an agreement in October 1981 concerning visitation and custody of the above named minor and that currently a petition for a contempt citation for violation of the agreement is pending below. Therefore, we relinquish jurisdiction of this case to permit the lower court to enter whatever order it deems appropriate. The parties may then take an appeal from any subsequent final order.


text:
    451 A.2d 266
    James T. WATKINS, Appellant, v. Janice ROBINSON and Jeff Graham.
    Superior Court of Pennsylvania.
    Argued Dec. 16, 1981.
    Filed Oct. 8, 1982.
    James Womer, Philadelphia, for appellant.
    Peter J. Hoffman, Philadelphia, for appellee.
    Before WICKERSHAM, BECK and POPOVICH, JJ.
   PER CURIAM:

The procedural posture of this appeal is essentially identical to that of Johnson v. Keystone Insurance Company, 299 Pa.Super.Ct. 187, 445 A.2d 517 (1982). Accordingly, we shall vacate the order dismissing appellant’s complaint for noncompliance with the “240 Day Rule” and Philadelphia Rule of Civil Procedure 151, and remand the case to the court below for further proceedings consistent with the opinion in Johnson v. Keystone Insurance Company, supra.

Order vacated, and case remanded for further proceedings. Jurisdiction relinquished.