author: POPOVICH, Judge:

text:
    568 A.2d 948
    SPAGNOL ENTERPRISES, INC., a Corporation, and Delmar Leasing Corporation, Appellee, v. DIGITAL EQUIPMENT CORPORATION, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 19, 1989.
    Filed Dec. 20, 1989.
    Reargument Denied Jan. 31, 1990.

      Arthur H. Stroyd, Jr., Pittsburgh, for appellant.
    Michael J. Seymour, Bethel Park, for appellee.
    Before McEWEN, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

This case involves an appeal from the order of the Court of Common Pleas of Allegheny County awarding damages in favor of the plaintiffs (Spagnol Enterprises, Inc. and Delmar Leasing Corp.) in the amount of $41,105.92 and denying the defendant’s (Digital Equipment Corp.’s) motion for judgment n.o.v. and/or a new trial. We affirm.

As was reiterated by this Court in Babich v. Pittsburgh & New England Trucking Co., 386 Pa.Super. 482, 563 A.2d 168, 171 (1989), quoting Rocker v. Harvey Co., 370 Pa.Super. 32, 36, 535 A.2d 1136, 1138 (1988):

The standard of review of an appellate court when considering an order granting or denying judgment n.o.v. is the same as that used by the trial court; we must determine whether there was sufficient competent evidence to sustain the verdict, granting the verdict winner the benefit of every reasonable inference that can be reasonably drawn from the evidence and rejecting all unfavorable testimony and inferences. Judgment n.o.v. is appropriate only in a clear case where the facts are such that no two reasonable minds could fail to agree that, as a matter of law, the party has failed to make out his case.

Viewed under such a standard, the facts reveal that Arthur J. Spagnol, president of both Spagnol Enterprises Inc. (a corporation operating eight retail lumber yards) and Delmar Leasing Corp. (a company which owned and held real estate), was in the market to update his computer services to get daily inventories of his stock. In an effort to accomplish this task, Spagnol contacted Digital Equipment Corporation’s (DEC) sales department and spoke to a Mr. Dunn in March of 1975. Dunn suggested various types of equipment to meet Spagnol’s needs and to engage the services of an original equipment maintenance (OEM) company to program the system. Several weeks after this meeting, a representative of an OEM company, Computer Management Resources (CMR), contacted Spagnol and the two met. Nothing came of this meeting because the cost of the Digital equipment Spagnol wanted to purchase was prohibitive.

By mid-August of 1975, the CMR representative advised Spagnol that Digital’s cost had been reduced for the equipment he needed. However, before an agreement would be executed, Spagnol wanted to meet with an official at DEC “since the equipment was coming from them.” The meeting was held on September 8, 1975, in DEC’s office and present were Spagnol, Ron Smith (from CMR) and Josephine Niedbala, who was in charge of OEM sales which Smith worked under in conjunction with DEC. Spagnol understood this relationship to mean that:

... any order placed on my behalf with Digital would be placed through her office and that she would handle the delivery and review the proposals of the equipment basically on whether we were in the right direction or wrong direction.

Before Spagnol would sign a contract to purchase the equipment through CMR, he requested a definite delivery date for the merchandise because he “wanted to get on line with [his] inventory for [the] year ending in 1975.” Niedbala, according to Spagnol, guaranteed a 30-day delivery date to occur by October 10, 1975. This was confirmed by Niedbala with the main office in Massachusetts. Thereafter, Spagnol executed a contract (dated September 8, 1975) with CMR for the purchase of a model PDP ll-T-35 Digital computer with an RSX-ll-M operating system.

When Spagnol received a maintenance contract in the mail from DEC on October 10, 1975, he did not sign it since the system had not yet arrived as promised. He learned that the equipment was not being shipped because CMR could not pay for it. As a result, by letter dated October 22, 1975, Spagnol contacted a Ms. Halpern at Digital (who was in charge of credit at the main office) “offering [his] financial statement so that [he] could get shipment of the computer____” Halpern refused Spagnol’s offer. In an effort to resolve this impasse, Spagnol arranged for a “letter of credit” to be issued by his bank. To secure the bank’s interest, Spagnol pledged money from the sale of property held by Delmar Leasing Corporation.

A letter of credit was provided by the bank in DEC’s name and Delmar Leasing Corporation was the “issuer of the letter of credit guaranteed by [the bank].” Once this document was sent, the equipment was received at Spagnol’s business address on the Monday before Thanksgiving of 1975. After the equipment had been installed by DEC, Spagnol contacted CMR to bring their “programs” and start the system — this occurred December 3, 1975. What followed was a series of events leading to CMR’s dismissal on April 30, 1976, for its inability, as initially thought by Spagnol, to program the computer and meet Spagnol’s end-of-the-year deadline to have all goods inventoried. To complete the work left undone by CMR, Spagnol hired John B. Allison as a consultant on May 1, 1976, to oversee the data processing operation.

Allison reviewed the work done by CMR and concluded that none of it was salvageable. He also advised Spagnol to change his system to a UNEX (produced by Bell Laboratories) because it was easier to operate and it had an enhanced memory which was lacking in Digital’s RSX system. Until the UNEX system arrived, however, Allison used the RSX.

During the first week of October, 1976 Allison experienced “disk” problems in that “the disks were not copying correctly” and this precluded him from retrieving information programmed on the packs. Allison contacted DEC to examine the problem. Even after DEC did its job (by cleaning the disk packs), Allison did not consider the computer to be “a stable system”, as evidenced by the fact that in the Fall of 1976 he was “probably having problems twice a week on backups” and DEC had to be called on numerous occasions (20 to 30 times) during this period. On one of these occasions, Spagnol overheard DEC’s servicemen saying that the computer had “old drives” of RK05’s instead of the newer RK05-J. Spagnol contacted DEC and was told he would get the “up-dated drives”. Spagnol never believed what he received was the newer parts he had asked for from DEC.

From January through May of 1977, Allison “believed he had a stable system”, and he attributed this to cleaning the disk packs and shifting to the UNEX operating system (replacing DEC’S RSX-ll-M machinery).

In May of 1977, a fire destroyed 80% of Spagnol’s building, but the room which housed the computer was not damaged except by smoke. The fire department had covered the equipment with a tarpaulin and it was moved to another room the following day after being left that evening on an unenclosed porch.

Despite the fact that DEC had cancelled its service contract covering the computer after the fire, it did participate in cleaning the equipment to make it operational again. And, for this, DEC was paid on an hourly basis and for any parts which had to be replaced (such as a module — circuit board). Nonetheless, it was DEC’s policy to wait a period of 30 days before placing the computer back on its service maintenance agreement, which they did on July 15, 1977.

It was DEC’s position that the May, 1977 fire “contaminated” the system and/or the disk packs so as to impair the use of either one. On the other hand, it was the belief of the plaintiffs that the computer was delivered in a defective condition and resulted in the loss of “manhours” in working on and with the piece of equipment that was damaged upon delivery from the manufacturer (DEC). Thus, the plaintiffs wanted to be compensated for the disk packs damaged by the computer upon insertion therein and for the wages paid to employees to program a system that was inoperable until the correct “disk drives” were placed into the system by DEC, which was almost 3 years from the date of purchase.

The court below, because of the plaintiffs’ failure to supply the defendant with documents relating to the claim for damages, bifurcated the trial and initially found in favor of the plaintiffs on the question of liability. Thereafter, at a hearing to receive testimony from Spagnol on the question of damages sustained and the manner and method of calculating the same, the court found against the defendant and ordered it to pay over $40,000.00 in damages.

Post-trial motions were filed and denied. Once the trial court’s order was reduced to judgment by praecipe to the prothonotary, this appeal followed and raises four issues for our consideration. We shall address them seriatim. The first appears in the “Statement of the Questions Involved” in the defendant’s brief at 3 and reads:

Whether Spagnol and Delmar, in the Absence of Privity with Digital, Can Recover for Breach of an Alleged Warranty?

We begin our analysis with the proposition that in Pennsylvania privity of contract is not a necessary element in a breach of warranty case. This position was enunciated first by our Supreme Court in Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848 (1968). There, the plaintiffs/Kassabs had purchased feed for their cattle from the defendant/Pritts who had previously blended and supplemented the feed with an ingredient manufactured by the defendant/Central Soya. Shortly thereafter the cows in the herd began to abort and the breed bull was pronounced sterile.

It appeared that the feed-supplement contained a drug that induced abortions in cows and sterility in bulls. Also, federal regulations required that warning labels be placed on feed containing the synthetic hormone that it not be given to breeding or dairy animals. No such label appeared on the feed formula sold by Central Soya to Pritt, who, in turn, sold it to the Kassabs.

An action in assumpsit against Pritt and Central Soya was commenced and heard by a judge sitting without a jury. After the presentment of the plaintiffs’ case, the trial court issued a ruling in favor of the defendants on the question of liability believing that the amount of drug in the feed could not have caused the abortions and sterility.

On appeal, the Supreme Court took the occasion to eliminate the privity requirement in assumpsit suits by purchasers against remote manufacturers for breach of implied warranty. In doing so, the Court wrote:

Under the Uniform Commercial Code, once a breach of warranty has been shown, the defendant’s liability, assuming of course the presence of proximate cause and damages, is absolute.
******
... with Pennsylvania’s adoption of Restatement 402a, the same demands of legal symmetry which once supported privity now destroy it. Under the Restatement, if an action be commenced in tort by a purchaser of a defective product against a remote manufacturer, recovery may be had without a showing of negligence, and without a showing of privity, for any damage inflicted upon the person or property of the plaintiff as a result of this defective product.
******
Thus, in the present case, for example, appellants’ complaint alleging that their property (cattle) was damaged (rendered valueless as breeding stock) by virtue of the physical harm caused when these animals ate appelleeSoya’s defective feed would have been sufficient to state a valid cause of action____
******

The majority opinion in Miller [v. Preitz, 422 Pa. 383, 221 A.2d 320 (1966)] candidly admits that the policy considerations underlying the imposition of strict liability in tort are precisely the same as those which dictate the abolition of privity in contract actions for breach of privity. Yet, the Court in Miller nevertheless retreated from the modern view because of a belief that section 2-318 of the Uniform Commercial Code requires privity in suits against a remote manufacturer. We no longer adhere to such a belief for we are convinced that, on this issue, the code must be coextensive with Restatement section 402a in the case of product liability.

432 Pa. at 228-31 & n. 7, 246 A.2d at 853-54 & n. 7 (Footnote omitted).

Moreover, the Kassab Court rejected the trial court’s position that there was no breach of warranty because the plaintiffs failed to establish that the tainted feed caused any injury to their cattle. It was the Court’s belief that “the question of injury” went “only” to the amount of damages and did not affect a finding that the contract was breached. Thus, the Court held that the tainted feed constituted a clear breach of the implied warranty of fitness for a particular purpose, and that the lack of privity between the plaintiffs and Soya would not insulate the latter from liability for breach of warranty.

As in Kassab where the plaintiffs’ business (of breeding and raising dairy animals) was injured by the manufacturer’s product (synthetic hormone contaminated feed), the plaintiffs instantly had its business (through the inability to computerize various aspects of the Spagnol Enterprises, Inc. and the needless expenditure of money associated with programming) injured by Digital’s defectively manufactured product (computer). And, in the absence of any privity of contract between the plaintiffs and Digital does not undermine a holding, as stated by the trial court, “in favor of the Plaintiffs under the ¿ssumpsit count and [under Section 2-314 of] the Uniform Commercial Code” appearing in their complaint.

Albeit the appellant attempts to distinguish the application of Kassab to the present case on the basis of the nature of the damages proven, it is clear from this Court’s reading of the Kassab opinion that it was intended to apply to all breach of warranty cases brought under the warranty provisions of the Uniform Commercial Code for all types of damages, whether they be personal injuries, damage to property or economic loss.

To the extent that the appellant argues that “there are no reported Pennsylvania cases which have extended warranty to persons (other than, of course, the immediate buyer) who sustained neither personal injury nor damage to property other than the warranted property”, we interpret Kassab to allow the award of damages to a plaintiff where injury has been incurred as the result of a defectively manufactured product which in turn results in a needless expenditure of monies in attempting to make the defective product operational and functional so as to be productive in a “business-sense”. To hold otherwise, would be to permit a manufacturer to place a product in the stream of the market and plead no liability when the instrument does not conform to the buyer’s needs which were known by the manufacturer at the time the item was sold.

Accordingly, because privity is no longer required in suits between manufacturers and consumers, the appellant’s claim to the contrary cannot be embraced as the state of the law in this Commonwealth.

In its second issue, the appellant argues that the trial court erred by ignoring disclaimers of warranty and limitations of liability present in the contract of sale. This issue ignores the fact that, as noted by the appellees in their brief at page 11,

... there was no written agreement between DEC and Appellees and therefore none of the disclaimers or limitations of liability contained in the contract referred to which was entered between DEC and CMR have any application to the Appellees. Therefore, the warranties [of merchantability and fitness for the purpose sold] ... apply and provide a proper basis for the Trial Court’s determination of liability.

We find no fault with the appellees’ logic and, therefore, deny the appellant relief.

The remaining two issues need not detain us long. The third claim that the trial court erred in finding a breach and the fourth issue challenging the trial court’s award of damages are refuted by the record evidence, a recitation of which appears earlier in this opinion, as well as in the opinion of the trial court. We see no reason to reiterate those facts which have been discussed at length in both writings, and, thus, require no further elaboration in denying the appellant’s allegations of trial errors. Accordingly, the appellant’s request for a new trial, in the absence of trial error, is not warranted. See Graham v. Sky Haven Coal, Inc., 386 Pa.Super. 598, 604, 563 A.2d 891, 894 (1989).

Order affirmed.

      . On April 26, 1989, a praecipe to enter judgment in favor of the plaintiffs (Spagnol Enterprises, Inc. and Delmar Leasing Corp.) and against the defendant (Digital Equipment Corp.) in the amount of $41,105.92 was filed by the plaintiffs with the prothonotary.

       The language of the Restatement, speaking as it does of injury to either the individual or his property, appears broad enough to cover practically all of the harm that could befall one due to a defective product.


source: Caselaw Access Project

author: DEL SOLE, Judge: CIRILLO, President Judge, TAMILIA, Judge, JOHNSON, Judge,

license: Public Domain

text:
    568 A.2d 953
    COMMONWEALTH of Pennsylvania v. Baxter J. HAWK, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 20, 1988.
    Filed Jan. 9, 1990.

      Stanley E. Gever, Philadelphia, for appellant.
    Alan Sacks, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and BROSKY, McEWEN, DEL SOLE, MONTEMURO, BECK, TAMILIA, POPOVICH and JOHNSON, JJ.
   DEL SOLE, Judge:

This is an appeal from a Judgment of Sentence entered following Appellant’s conviction of robbery, theft, receiving stolen property, simple assault, possessing an instrument of crime and unlawful restraint. We determine today that this sentence must be vacated and the underlying convictions reversed because Appellant’s constitutional right to a speedy trial was violated.

Appellant was arrested on March 28, 1984 and promptly incarcerated shortly after he robbed a restaurant employee at gunpoint. The 180 day mechanical run date for purposes of compliance with Pa.R.Crim.P. 1100 was September 14, 1984. On August 23, 1984, the Commonwealth filed a petition for extension of time alleging the unavailability of the trial judge. On October 10, 1984, shortly after his run date had passed, Appellant filed a petition to dismiss the charges against him based upon a violation of Rule 1100. No action regarding the petitions was taken until July 8, 1985 when the court held a hearing on the Commonwealth’s extension petition and Appellant’s petition to dismiss. The date on which the hearing was finally held was 478 days after Appellant’s arrest and 298 days after the expiration of the 180 day period set forth in Rule 1100. At the close of the hearing the court granted the Commonwealth’s Petition for extension and denied Appellant’s request for dismissal of the charges. Trial was held on June 5, 1986 following further postponements which are not pertinent to our review of Appellant’s claim.

Appellant objects to the delay in bringing his case to trial which occurred following the Commonwealth’s request for an extension. He contends that the failure to consider the Commonwealth’s request for nearly 300 days resulted in a violation of Rule 1100 and a denial of his constitutional right to a speedy trial.

Rule 1100 was adopted by our supreme court pursuant to its supervisory powers and was designed to be an administrative method which would seek to protect the constitutional guarantee of a speedy trial for a criminal defendant. Commonwealth v. Monosky, 511 Pa. 148, 511 A.2d 1346 (1986); Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976). At the relevant time period, the pertinent part of Rule 1100 provided:

(a)(2) Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.
******
(c)(1) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial.
******
(3) Such motion shall set forth the facts in support thereof, and shall be granted only upon findings based upon a record showing that trial cannot be commenced within the prescribed period, despite due diligence by the Commonwealth and, if the delay is due to court’s inability to try the defendant within the prescribed period, upon findings based upon a record showing the causes of the delay and the reasons why the delay cannot be avoided.

Although the 180 day period of Rule 1100 was set forth to “act as a stimulant to those entrusted with the responsibility of managing court calendars”, Commonwealth v. Hamilton, 449 Pa. 297, 308, 297 A.2d 127, 133 (1972), it was not intended to be inflexible. Commonwealth v. Mayfield, supra. The Rule itself, and caselaw which has interpreted it, have permitted certain conditions to justify an extension of the 180 day time period in which an accused must be brought to trial. A realistic approach has been adopted which has recognized delays attributable to court administration where the record shows:

(1) the due diligence of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.

Commonwealth v. Mayfield, 469 Pa. at 222, 364 A.2d at 1349-1350.

The delay which is of concern in the instant case was found to be justified by the trial court because of such scheduling problems. The difficulties with the court’s calendar were cited as justification for both the Commonwealth’s inability to try Appellant within the 180 day period and the court’s inability to hold a hearing on the Commonwealth’s extension petition within that same time frame. At the July 8th hearing Appellant represented himself and was informed by the court:

In this courtroom under the individual calendar cases assigned to this Court, the cases must stay in this courtroom except for some slight exceptions that is when I recuse myself because of an appearance of unfairness or something like that. And since it must stay in my Court then as the Assistant District Attorney pointed out, we call cases in the earliest run dates first. This case is now listed for today because it was the earliest run date consistent with the calendar that I have.
The Commonwealth has exercised due diligence by filing a Petition to Extend which would authorize us to have a hearing today as to whether or not it should be extended.
The Commonwealth has no control over when cases are listed in this courtroom. They too are on the same notice that defense are. We call them in turn and if they’re not ready we take the appropriate action as we do with the defense so that under the circumstances we are now in September of ’84 cases. This is July of ’85 so that in effect although it is 10 months behind it is the earliest possible date that this court could hear your case.

N.T. 7/8/85 at 24-25.

The Court also remarked on the “gamble” which arises when the hearing on the Commonwealth’s petition is not held within the 180 day period.

THE COURT: Well, what the Court says, they can gamble but if I denied their Petition to Extend then they’re out of the ballgame today but they have a right to gamble and that is what they have done. They have gambled that I was going to — see, we can’t even take time to hear all of the Petitions to Extend immediately because while we’re hearing the Petitions to Extend some poor soul is sitting in jail saying they’re not trying me in 180 days.
THE DEFENDANT: Mine is 477 days, that is ridiculous.
THE COURT: That is your opinion, however, I suggest that you read, if you want to take this down, Commonwealth versus Crawley ... where the Court said that where the Commonwealth has exercised due diligence and the Court has made reasonable efforts to bring it to trial, then that is satisfactory.
So, I will grant the Commonwealth’s Petition to Extend and extend to July 31st.
I will deny your Petition to Discharge.

N.T. 7/8/85 at 32-38.

The “gamble” of which the court spoke has been frequently identified by the courts. In Commonwealth v. Yant, 314 Pa.Super. 442, 448-449, 461 A.2d 239, 242-243 (1983) this court cited to an earlier decision and stated:

As footnote 2 in Metzer explains: ‘The risk is obvious: if the court denied the extension after the period had run, the Commonwealth is prevented from bringing the accused to trial. If the petition is denied promptly, the Commonwealth may nonetheless be able to try the accused within the period____’ This repeated admonition

applies to Yant’s case, for the hearing court was put in the position of having to grant the Petition to Extend or dismiss the accused. This circumstance inevitably puts pressure on the hearing court to grant the petition, citing Commonwealth v. Metzger, 240 Pa.Super. 712, 360 A.2d 227 (1977).

In Yant a four month delay occurred between the time the Commonwealth filed its petition to extend and the date on which a hearing was held on the petition. At the Commonwealth’s request the hearing date was postponed on five occasions. One such continuance was not accompanied by an excuse; two were due to the district attorney’s vacation schedule; one was necessitated by the judge’s illness, and another due to the fact that the case was not entered on the court list. In view of these explanations, the repeated continuances and the totality of the circumstances, the Yant court ruled that the appellant had to be discharged based on a violation of Rule 1100.

The Commonwealth asserts that the instant case differs from those in which there is an unexplained delay or the Commonwealth fails to appear. The Commonwealth contends that Appellant is not entitled to be discharged because he has not demonstrated prejudice and because the delay at issue in this case was necessitated, as stated by the trial court, due to a congested court docket which would not permit an earlier hearing date. In support of this position the Commonwealth cites to the decision referred to by the court at the July 8th hearing, Commonwealth v. Crowley, 502 Pa. 393, 466 A.2d 1009 (1983).

Although the Crowley decision further confirmed that Rule 1100 was not to be unbending where a crowded criminal docket necessitated a delay, it is important to note that the supreme court did not grant a blanket exception for judicial delay and rule that any amount of delay will be sanctioned where that delay is caused by scheduling difficulties. The Crowley court stated:

Rule 1100 should not be construed to require Common Pleas Court with backlogged criminal dockets to devote all their administrative and judicial resources to guarantee that every defendant is tried within the period prescribed by the Rule. It should be sufficient for the court to establish that it has devoted a reasonable amount of its resources to the criminal docket and that it scheduled the criminal trial at the earliest possible date consistent with the court’s business. While the trial court may be required to rearrange its docket, if possible, when judicial delay has caused a lengthy postponement beyond the period prescribed by Rule 1100, or one that implicates the constitutional right to a speedy trial, it should not be required to do so to avoid a delay of under 30 days as here.
Id. at 402-403, 466 A.2d at 1014.

In a footnote to this paragraph, the court added:

There is a qualitative difference in permitting congestion to excuse short delays. Short delays do not seriously implicate a defendant’s Sixth Amendment right to a speedy trial under Barker v. Wingo nor do they provide a disincentive for states to remedy congestion.
Id. at 403 n. 9, 466 A.2d at 1014 n. 9.

Thus, while delays caused by a crowded criminal docket will be permitted and will justify the denial of a motion to dismiss under Rule 1100, lengthy postponements past the run date may result in a violation of the accused’s speedy trial rights. The delay in this case is clearly in excess of the 30 days mentioned in the Crowley decision and in our view cannot be labeled as a “short delay.” Here the hearing was not held on the Commonwealth’s Petition to Extend and Appellant’s Petition to Dismiss until 298 days after the expiration of the 180 day period. This was 478 days after Appellant was first charged with criminal conduct and incarcerated. In view of the length of the delay we will next examine its implications on the Appellant’s constitutional right to a speedy trial.

While Rule 1100 is designed to aid the implementation of the constitutional right to a speedy trial, the constitutional guarantees continue to provide a separate basis for asserting a claim of undue delay in appropriate cases. Jones v. Commonwealth, 495 Pa. 490, 434 A.2d 1197 (1981). Violation of such a right may be claimed under either the Sixth Amendment to the United States Constitution, or Article I, Section 9 of the Pennsylvania Constitution. In either event, the constitutional right to ensure that undue delay does not postpone trial protects both the accused and the general public. The public’s interest in the prompt disposition of criminal trials is to ensure that the means of proving the charge are preserved, the deterrent effect of prosecution and conviction are evident, and to avoid, in some cases, an extended period of pretrial freedom by the defendant during which time other crimes may be committed or witnesses intimidated. Commonwealth v. Mayfield, supra. Likewise an accused looks toward the protection offered by the constitutional guarantee to a speedy trial to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation, and to limit the possibilities that a lengthy delay will impair the defense. Commonwealth v. Kirk, 220 Pa.Super. 115, 283 A.2d 712 (1971).

In analyzing a claimed violation of constitutional speedy trial rights a balancing test first enunciated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), is to be applied. This test which weighs the conduct of both the prosecution and the defendant consists of four factors. The first consideration is the length of the delay. Delay which is “presumptively prejudicial” acts as a “triggering mechanism” for further inquiry. “It then becomes necessary to engage in the 'difficult and sensitive’ process of balancing against the delay the reason for the delay, the defendant’s assertion of his right, and the prejudice to the defendant resulting from the delay.” Commonwealth v. Sheeley, 230 Pa.Super. 160, 164, 326 A.2d 574, 576 (1974), citing Barker v. Wingo, supra.

Although the Court in Barker v. Wingo found the length of the delay to be critical, it did not hold that the right can be quantified into a specified number of days or months. Instead, the court ruled that the states were free to prescribe a reasonable period of time in which to bring an accused to trial. Our supreme court in Rule 1100 has set that time period, at 180 days. Appellant was not tried within that time span and the delay beyond the 180 day period, in which Appellant awaited a decision on the Commonwealth’s petition to extend the time for commencement of trial, was substantial (298 days). In our view, this time period is sufficient to trigger further inquiry.

The next factor to be considered is the reason for the delay. In this case the responsibility for the delay rested with the Court and the Commonwealth and could not in any way be attributed to Appellant. The trial court clearly determined that the reason for the delay was due to the crowded criminal docket. While such a delay cannot be viewed as critically as one which was deliberate and intended to prejudice the defense, it cannot be ignored because it remains the responsibility of the government.

The lengthy delay in this case, coupled with Appellant’s lack of responsibility for it, must also be considered in light of the fourth factor: whether the accused made a timely assertion of his speedy trial rights. In this case such a claim was timely made. Less than one month after the run date Appellant filed a Motion to Dismiss; and, Appellant continued to pursue this claimed constitutional violation at the July 8, 1985 hearing.

The fourth factor, prejudice, is contested by the Commonwealth. It maintains that Appellant suffered no prejudice because he requested later continuances and because he was given credit on his sentence for the time he was incarcerated prior to trial.

First, it must be mentioned that “Barker v. Wingo, expressly rejected the notion that an affirmative demonstration of prejudice was necessary to prove a denial of the constitutional right to a speedy trial.” Moore v. Arizona, 414 U.S. 25, 26, 94 S.Ct. 188, 189, 38 L.Ed.2d 183 (1973). Each factor set forth by the Court in Barker v. Wingo must be considered and weighed together. None of the final three factors, including possible prejudice to the appellant, is either necessary or sufficient to conclude that an accused was deprived of a speedy trial.

Secondly, we find that Appellant was indeed prejudiced as a result of his pretrial incarceration. There is no claim in this case that Appellant was incarcerated on an unrelated charge; rather, the record indicates that Appellant remained incarcerated for 478 days awaiting the court’s consideration of the Commonwealth’s request to extend the time for trial. And, while Appellant was ultimately convicted of the charges brought against him and sentenced, with credit given for time served, this fact does not lessen the anxiety he most certainly experienced while awaiting his fate. As noted in Commonwealth v. Williams, 457 Pa. 502, 507, 327 A.2d 15, 17 (1974), “[I]t would be pure sophistry to argue that his delay did not cause the accused and his family severe anxiety.” We must also ask what possible remedy could justly be found if Appellant had ultimately not been convicted of the crimes charged. We do not believe that employing the Commonwealth’s hindsight evaluation is appropriate because it does not serve to further the purpose of the speedy trial rule. Finally, we reject the Commonwealth’s assertion that our decision must turn on the fact that Appellant made later requests to postpone trial. Such information is irrelevant to an examination of the delay at issue.

Upon balance we conclude that in light of the length of the delay, the Appellant’s prompt affirmative assertion of his speedy trial rights, the Appellant’s lack of responsibility for the delay and the fact that Appellant was incarcerated during the period at issue, the Appellant was denied his constitutional right to a speedy trial.

Accordingly, we vacate Appellant’s conviction and sentence. Jurisdiction is relinquished.

CIRILLO, President Judge, and TAMILIA, J., file dissenting statements.

JOHNSON, J., files a dissenting opinion joined by BROSKY, J.

CIRILLO, President Judge,

dissenting:

I respectfully dissent for the reasons set forth in my dissenting opinion to the per curiam order of this court filed on July 26, 1989. Commonwealth v. Hawk, 386 Pa.Super. 183, 562 A.2d 858 (1989). However, had the order I proposed in my dissenting opinion, see supra, been adopted by a majority of this court and had the record been properly supplemented with the July 8, 1985 hearing transcript, I would have joined the dissenting opinion authored by Judge Johnson.

TAMILIA, Judge,

dissenting:

I respectfully dissent to the majority’s decision vacating appellant’s conviction and sentence. I perceive no error in the conduct of the trial which should result in reversal and on the issue upon which the majority focused in reversing the appellant’s conviction and discharging him, denial of a speedy trial, I believe the majority is in error. The majority appears to rely on time alone from the point of filing of the complaint to time of trial as dispositive of this issue. Such reliance is improper where there is no showing of prejudice by appellant and the Commonwealth was not at fault in causing the delay. The court properly held and the record establishes without contradiction that the delay was due to an overwhelmed court schedule and the calendering practices of the Court of Common Pleas of Philadelphia. Commonwealth v. Crowley, 502 Pa. 393, 466 A.2d 1009 (1983), clearly put to rest any possibility that the Superior Court could limit the time which a trial court had to bring a defendant to trial. In that case, the Supreme Court, reversing the Superior Court, Commonwealth v. Crowley, 281 Pa.Super. 26, 421 A.2d 1129 (1980), and commenting on a Concurring Opinion in Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978), which reversed Superior Court and would have adopted a rule espoused by this Court in Commonwealth v. Coleman, 241 Pa.Super. 450, 361 A.2d 870 (1976), which would have required the trial court to change its procedure if it could not schedule cases within 180 days, pointedly rejected it. The Supreme Court, in Crowley, supra, said:

That view, which a majority of this Court declined to adopt in Coleman, is implicitly followed by the Superior Court here. It ignores the realities of crowded criminal and civil dockets which overburdened Common Pleas courts must deal with on a day-to-day basis. Rule 1100 was designed to promote the administration of criminal justice within the context of our entire judicial system, not to render that system hostage to its own closed logic. The goals of efficiency and ease of administration which Rule 1100 serves are worthy; they should not be exalted at the expense of justice. Thus, in interpreting our Rule 1100, we must throw away the stopwatch and pick up the scales of justice. See, e.g., Commonwealth v. Blady, 492 Pa. 285, 424 A.2d 864 (1980) (dissenting opinion, Larsen, J., in which Flaherty, J. joined).

Id., 502 Pa. at 402, 466 A.2d at 1014 (emphasis added). In so stating, I believe the Supreme Court has foreclosed any further consideration of this issue by Superior Court. The regulation of trial court procedures appears to be a matter entirely within the purview of the Supreme Court under the doctrine of the Unified Judiciary, promulgated by the amendments to the Pennsylvania Constitution on April 23, 1968. I would, therefore, affirm the judgment of sentence.

JOHNSON, Judge,

dissenting:

In June 1986, a jury convicted Baxter Hawk of robbery, theft by receiving stolen property, simple assault, possessing instrument of crime and unlawful restraint. The Honorable Eugene H. Clarke, Jr. sentenced him to five to ten years’ imprisonment on the robbery count.

On this appeal, Hawk contends: (1) lack of Commonwealth compliance with Pa.R.Crim.P. 1100, (2) denial of his right to a speedy trial, and (3) improper admission of an oral statement. Following my review of the briefs of the parties and the record, I conclude that each of the three issues is without merit. The majority would vacate Hawk’s conviction, and presumably direct Hawk’s discharge, based upon a claimed denial of Hawk’s constitutional right to a speedy trial. Given the total lack of argument by Hawk on this issue in his brief, as set forth later in this opinion, I would affirm the judgment of sentence. Therefore, I dissent.

On March 28, 1984, Hawk entered Bookbinder’s Restaurant at 15th and Locust Streets in Philadelphia. He ordered and drank a cup of coffee. He then, at gunpoint, robbed employees of cash from the register and fled in a taxicab. A restaurant employee pursued Hawk in a second cab. The employee was on the scene, and identified Hawk, as police arrested him and confiscated the long-barrelled gun used in the robbery.

At issue two, concerning the right to a speedy trial, Hawk’s one-page argument, Brief for Appellant, page 21, is devoid of citation of any authority. He purports to “incorporate ... all relevant facts and arguments set forth in the preceding paragraphs” — presumably, the first section of the Argument, pages 10-20 — without specifying which facts or arguments are relevant to this contention. His sole factual allegation that “not one day of the long delay ... was the result of any action by Defendant or caused by Defendant in any way” does not suffice to afford relief. Commonwealth v. Cooley, 484 Pa. 14, 19-20, 398 A.2d 637, 640 (1979). Commonwealth v. Sanford, 299 Pa.Super. 64, 445 A.2d 149 (1982). Pa.R.A.P. §§ 2101, 2119. The second issue is without merit.

At issue three, Hawk again sets forth no authority to support his contention that the oral statement given to Detective Robert Egenlauf on the night of Hawk’s arrest should have been suppressed. Both Hawk and the trial judge rely on the Suppression Hearing Notes of Testimony of June 2, 1986 for resolution of this point. Based upon that transcript, and the arguments contained in the briefs, I find no abuse of discretion by the distinguished trial judge. Commonwealth v. Lark, 505 Pa. 126, 129, 477 A.2d 857, 859 (1984) (scope of review); Commonwealth v. Lowenberg, 481 Pa. 244, 251, 392 A.2d 1274, 1277 (1978) (voluntary statement); Commonwealth v. Johnson, 299 Pa.Super. 172, 175-176, 445 A.2d 509, 511 (1981). Again, I would affirm the trial court on this issue.

Turning to the primary issue, which prompted en banc reargument, Hawk seeks to argue that the Commonwealth lacked due diligence on its petition to extend the time of trial and failed to establish a record sufficient to justify an extension. Based upon my review of the Rule 1100 Petition Hearing Transcript, July 8, 1985,1 find no error by the trial court in granting the petition. I, therefore, must dissent.

From the Rule 1100 Petition Hearing Transcript, the following facts were before Judge Clarke. The complaint in this case was filed on March 18, 1984. Following the preliminary hearing and pretrial conference, discovery was completed and the case was placed in the July 2, 1984 “ready-pool” of Judge Clarke. The Commonwealth was ready at the first listing of the preliminary hearing on March 28, 1984 and remained ready throughout this matter up until July 8, 1985. Because of the individual calendar system in Philadelphia County, the matter had to be scheduled according to the court’s calendar. Hearing Transcript, pages 18-19.

The Commonwealth had no control over the scheduling of cases in Judge Clarke’s ready-pool, once they were placed in the pool. Once the case was scheduled before Judge Clarke and in Judge Clarke’s ready-pool, it could not be transferred to another court in order to be tried at an earlier date. July 8, 1985 was the earliest possible date in the first listing for trial once the matter was scheduled in the ready-pool. The Commonwealth’s petition for extension under Rule 1100 was timely filed on August 23, 1984. Hearing Transcript, pages 19, 20.

As the majority correctly points out, Judge Clarke found as fact all of the above, along with his conclusion that July 8, 1985 was the earliest trial date consistent with his calendar, since cases are called in turn, with the earliest run date being called first. Hearing Transcript, page 24.

Rule 1100(c)(3) provided as follows at all times material to this appeal:

(c)(3) Such motion shall set forth facts in support thereof, and shall be granted only upon findings based upon a record showing that trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth and, if the delay is due to the court’s inability to try the defendant within the prescribed period, upon findings based upon a record showing the causes of the delay and the reasons why the delay cannot be avoided.

The Commonwealth’s petition filed pursuant to Rule 1100(c) alleged that the case had been placed in the ready-pool and continued to July 2, 1984 for a five-day jury trial. It further alleged that Judge Clarke was ill and unavailable from July 5, 1984 through August 3, 1984 and would be on vacation and unavailable from August 6, 1984 through September 10, 1984. Neither Hawk nor the majority seriously dispute that Judge Clarke’s calendar was full or that the case was listed for the earliest available date consistent with Judge Clarke’s calendar. I conclude that the requirements of Rule 1100(c)(3) were satisfied, that the Commonwealth did exercise due diligence and that the causes of the delay and the reasons why that delay was unavoidable are, in fact, included in the record before this court. Commonwealth v. Crowley, 502 Pa. 393, 402-03, 466 A.2d 1009, 1013-14 (1983); Commonwealth v. Bolden, 336 Pa.Super. 243, 250-51, 485 A.2d 785, 789 (1984); Commonwealth v. Briggman, 325 Pa.Super. 333, 337-38, 472 A.2d 1145, 1148-49 (1984).

Moreover, the delay between August 1984, when the petition was filed, and July 1985, when the case was called for a hearing on the petition and trial, would not support discharge under the rule absent a showing of prejudice. Our case law is clear that an unexplained delay, without a showing of prejudice, does not offend the rule. Commonwealth v. Williams, 310 Pa.Super. 501, 509, 456 A.2d 1047, 1051 (1983). As to the element of prejudice, I find none from the record.

The majority cites only to Commonwealth v. Williams, 457 Pa. 502, 327 A.2d 15 (1974) to support its conclusion that Hawk sustained prejudice due to the delay in this case. Williams is readily distinguishable. James Williams had been arrested on a voluntary manslaughter charge but was not tried and convicted until three and one-half years later. In the interim, one potential defense witness had died, two could not be located due to the passage of time, and a fourth — an eyewitness — believed her memory had dimmed over the three and one-half year period and she would not be able to testify fully on behalf of the defendant. Moreover, the Commonwealth conceded in Williams that the length of the pretrial delay was presumptively prejudicial. 457 Pa. at 507, 327 A.2d at 17-18.

In the case now before us, Hawk requested a continuance on the date of the hearing on the Rule 1100 petition. He advised the court that his defense was going to be ambulatory automatism and that he would need expert medical help to prepare for trial. Hearing Transcript, pages 33-42. At that time, Hawk agreed to an extension to November 21, 1985, thirty days after the then-scheduled trial date. The trial was again postponed, in late 1985, following appointment of new defense counsel. Nowhere in the record is there any suggestion that any of the delays had an adverse effect upon Hawk’s ability to prepare for trial or on his own well being. I therefore reject the majority’s conclusion that, within the context of a sixth amendment speedy trial analysis, Hawk has sustained any prejudice warranting discharge.

The trial court, itself, was solely responsible for the scheduling of the hearing on the petition to extend. The delay was related to the backlog within the trial division, with the oldest cases being scheduled for disposition first. I find no lack of due diligence by the Commonwealth and I find no error in the court having granted the Rule 1100 petition. Likewise, I find no merit in the claimed denial of the constitutional right to a speedy trial or in the admission of the defendant’s oral statement to the police while in custody. The judgment of sentence should be affirmed. Hence, this dissent.

BROSKY, J., joins.


author: TAMILIA, Judge: JOHNSON, Judge,

text:
    568 A.2d 961
    Donna K. CHRISTIANSON v. Robert M. ELY, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 5, 1989.
    Filed Jan. 8, 1990.

      Christopher J. Foust, Milton, for appellant.
    Michael T. Hudock, Asst. Dist. Atty., Miffinburg, for appellee.
    Before McEWEN, TAMILIA and JOHNSON, JJ.
   TAMILIA, Judge:

This is an appeal from a February 2,1989 Order directing appellant, Robert M. Ely, to submit to blood tests to determine if he is the biological father of Tenaya Beth Christian-son. The factual situation which preceded this action is as follows:

Tenaya Christianson was born on August 19, 1985 to appellee, Donna K. Christianson. At the time of Tenaya’s conception and birth, appellee was married to and living with Bruce N. Christianson, not party to this appeal but who also was ordered to submit to blood testing. Approximately one and one-half years after the child’s birth, the appellee and her husband had apparently separated and appellee on February 27, 1987 filed a complaint in support against her husband seeking child support for all three of the children, including Tenaya, born during the parties’ marriage. On March 30, 1987, although an Order for support was entered as to the two older children, there was no disposition made as to Tenaya. Based on this prior complaint, appellant filed preliminary objections to the support complaint against him citing the earlier undisposed of complaint for support against appellee’s husband as cause for dismissal of the complaint against appellant. Subsequently, the trial judge granted preliminary objections to the extent proceedings would be stayed pending disposition of the support complaint against the husband.

Thereafter on November 10, 1988 the district attorney’s office for Snyder County filed a petition to withdraw and terminate the support action for Tenaya alleging appellee was then claiming appellant rather than her husband was the child’s father. An ex parte Order was filed without hearing, allowing appellee to withdraw the support complaint without the issue of paternity having been decided.

On February 21, 1989 the Union County district attorney’s office filed the motion for blood tests, granted on February 22,1989, which is subject of this appeal. The trial judge entered the Order, directing the parties to submit to blood tests, ex parte, without a hearing to provide appellant the opportunity to answer the motion. A notice of appeal was filed and petitions for stay or injunction pending appeal were denied by both the trial court (March 22,1989) and this Court (April 25, 1989).

Initially we must determine if this appeal is properly before us. Both the trial court and appellee contend we are without jurisdiction to consider this case on the merits as the Order from which appellant appeals is neither final, nor interlocutory and appealable as of right. To the contrary appellant contends the Order is final under 42 Pa.C.S.A. § 742, Appeals from courts of common pleas (appellant’s brief at 1) and also because appellee previously filed a sworn complaint naming her husband as Tenaya’s father and there has been no determination he is not (appellant’s brief at 14).

Normally a case is not appropriate for appeal when there has been no ultimate finding on the issue of paternity and secondly, an appeal from an Order to take a blood test is, alone, generally not appealable. However, under the circumstances of this case, appeal has been allowed under the authority of Myers v. Travelers Insurance Co., 353 Pa. 523, 46 A.2d 224, 163 A.L.R. 919 (1946), cited in Commonwealth v. Weston, 201 Pa.Super. 554, 556, 193 A.2d 782, 783 (1963). The Order directing the parties to submit to a blood test was inappropriate as the procedure utilized in the court below did not properly present a case which permitted the Order to be issued. To quash the appeal and remand without considering the merits of the appeal at this time would be to permit the court to continue in error, to impose a likely invasion of privacy on appellant, to violate due process and to assure that a subsequent appeal would follow. For the sake of judicial economy, a common sense approach requires our resolution of the fundamental issues presented by this case. When an Order appealed from involves a blood test and the issue presented focuses on whether or not the doctrine of estoppel must be applied to the denial of paternity by a presumptive parent which will control whether or not an Order to submit to blood tests will issue, this Court has treated the Order as appealable. See Commonwealth ex rel. Goldman v. Goldman, 199 Pa.Super. 274, 184 A.2d 351 (1962); Weston, supra.

In order to avoid error on remand, procedurally this case must progress in the court below with due consideration being given to the requirements of the laws of laches and estoppel. As stated in the summarization of facts, the child was born during wedlock. That fact alone entitles the child to the presumption of legitimacy. That presumption may not be lightly turned aside and, as we have stated in In the Matter of Montenegro, Jr., 365 Pa.Super. 98, 528 A.2d 1381 (1987), the conduct of the father (and/or the mother) may operate to estop any further inquiry. Under the circumstances where the father has accepted the child and treated him as his own, he may not thereafter, upon separation, reject paternity and demand a blood test to rebut the presumption. The same must be said for the mother. She cannot hold out her husband to be the father and thereafter, upon separation, charge a different man with paternity. By denying appellant a hearing, the court ignored the crucial requirement that appellee would need to establish by clear and convincing evidence that she and the husband are not estopped from denying her husband's paternity. This would only be shown by proving the husband/father did not accept the child as his (by more than mere denial) and both operated under the belief the child was fathered by someone else. Under these circumstances, an Order for a blood test would not be permissible to overcome the presumption of legitimacy unless it had first been established that the presumptive parent was not estopped from denying paternity. If such estoppel prevailed, then an attack on the presumption would be impermissible and the presumed father alone would have the duty of support as well as rights to visitation and/or custody.

Appellee maintains that pursuant to the case of John M. v. Paula T., 377 Pa.Super. 72, 546 A.2d 1162 (1988), once a party raises an issue of paternity, and thereby faces the burden of overcoming a presumption of legitimacy, a blood test must be ordered. This contention flies in the face of a long line of cases down to the present time in which the doctrine of estoppel or laches has been applied to prevent the taking of a blood test or when it has been taken, despite its results, treating as a nullity its application to rebut the presumption of legitimacy. Paula T. is a single aberration where it was held that the overwhelming presumption, once having been met by clear and convincing evidence, may still permit the use of a blood test where there is good cause. While the underlying theory espoused by Paula T is subject to question, particularly in view of the fact that it ignored the doctrines of estoppel and laches which have been and continue to be the overriding law in Pennsylvania when we are faced with situations similar to the present, it is, in other ways, clearly distinguishable from this case.

In Paula T., the issue was whether the putative father could obtain rights of visitation to his alleged child, who was conceived during marriage and living with the presumptive father and natural mother, despite the fact that the court found, pursuant to law, the presumption of legitimacy had not been overcome in any respect. The appellant in Paula T. had not overcome the presumption by clear and convincing evidence and his only avenue was to request a blood test. The trial court denied this request and was reversed by a panel of this Court, which held that the trial court must make a determination as to whether good cause was shown for the granting of the blood test. It might be suggested that had the trial court considered the doctrine of laches and applied it to a non-parent who alleges paternity but has not exercised a claim in a reasonably expeditious fashion, the result might have been different, particularly where the presumptive father was estopped from denying paternity. However, notwithstanding, this case is not comparable to Paula T. as that case concerns a third party attempting to exercise a right rather than the denial of paternity by the husband in face of the presumption that he is the father, when a child is conceived during marriage. This case and all other cases which deal with this issue concern parents, who were married when the child was born or conceived, which triggered the presumption of parentage and then, after fulfilling the responsibilities and roles of parents for some time, who subsequently attempt to deny that status. This is a scenario which we have consistently and without exception refused to accept by reason of the doctrine of laches or estoppel. While the Uniform Blood Test Act, 42 Pa.C.S.A. § 6131, permits the ordering of the blood test to rebut the presumption of parentage, the parents by their actions may be estopped from availing themselves of that provision and the presumption will prevail. Section 6133, Authority for test, provides:

If any matter subject to this subchapter in which paternity, parentage or identity of a child is a relevant fact, the court upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved, ... shall order the mother, child and alleged father to submit to blood tests.

Id. (Emphasis added.) When a parent is estopped from denying paternity and the presumption of legitimacy has not been rebutted, paternity is not a relevant fact.

The starting point in this review of our application of the law of estoppel and presumption of legitimacy in relation to the blood test begins with Commonwealth ex rel. O’Brien v. OBrien, 390 Pa. 551, 136 A.2d 451 (1957). In O’Brien, the Supreme Court held the blood test act of May 24, 1951, P.L. 402, did not apply to actions brought to obtain support for children born out of wedlock. Thereafter, the legislature repealed the act of 1951 and passed the act of 1961, 42 Pa.C.S.A. 6131 et seq., which is subject of this case and which was slightly modified by amendments in 1976 and 1978. Following the enactment of the 1961 provision, this Court, in Commonwealth ex rel Goldman v. Goldman, 199 Pa.Super. 274, 184 A.2d 351 (1962), held the act of 1961 applied to actions brought for the support of children born during wedlock and suggested that where a child was born during coverture and was accepted by the defendant as his own, he was estopped from denying paternity of that child. In that case, the defendant left the wife shortly after one of the two children in question was born and prior to the birth of the second child. We affirmed the Order directing that a blood test be taken and, therefore, it follows that this Court was convinced the presumption of legitimacy was subject to rebuttal and the actions by the father in leaving the household prevented estoppel from working against him.

In Weston, supra, we held that when a child was born during coverture and the father lived with the wife and children for several years after the birth of those children of the marriage, and there was no evidence that he did not accept them as his own children prior to filing a petition, the holding in Goldman did not entitle the husband to the granting of his petition for a blood test. The Superior Court in that case held, “We think it [the trial court/ should have refused the petition of the defendant at least until it was shown the defendant had not supported and accepted these children as his own. Id. 201 Pa.Super. at 556, 193 A.2d at 783 (emphasis added).

This statement clearly establishes the rule which must be applied to this case. Here, we have no evidence of record that the father failed to accept the child, Tenaya, as his own nor any evidence that he took any action whatsoever to establish that he was not her father, such as leaving the family upon the birth of the child, as was the case in Weston. Based on appellant’s brief it appears there is no testimony or evidence in the record of the presumptive father’s denial of either support of the child or fathering of the child during the one and one-half years of the child’s existence prior to the separation. The mother, in fact, filed a support action against the father for the support of the child which was held in abeyance until it was withdrawn by the district attorney of Snyder County under what appears to be some manipulation by welfare authorities. There appears to be nothing on the record which indicates that the presumption of legitimacy has been overcome in any fashion whatsoever and particularly not to the degree of clear and convincing evidence which is required in, such a case. In this case, contrary to most of the other cases dealing with this issue, it is the mother, by filing an action for support against the appellant, who is denying the husband’s paternity. This is clearly no different than a case where it is the father who has denied paternity.

In Montenegro, supra, we held that a putative father, who held himself out to be the child’s father by marrying the mother and assuming responsibility for the care of their child, was estopped from denying paternity five years after marriage, and evidence of a blood test proving the putative father was not in fact the natural father was inadmissible to disprove paternity for any purpose. In that case, despite the fact the child was conceived before marriage, the law as provided by 48 P.S. § 167 Children, legitimacy and termination of paternity, subsection (b)2 provides that if during the lifetime of the child the father openly holds out the child to be his and receives the child into his home or openly holds the child out to be his and provides support for the child, which shall be determined by clear and convincing evidence, paternity shall be established in the putative father. As we said in Montenegro, this section provides a strong policy statement by the legislature that children shall be legitimate and when putative fathers hold themselves out to be the father of a child by marrying the mother and assuming responsibilities for the care of the child, paternity is thereby determined. Evidence of the blood tests, therefore, was inadmissible to disprove paternity for any purpose. Montenegro 365 Pa.Super. at 104-106, 528 A.2d at 1384. If this is the case when a child is born out of wedlock or conceived before marriage and the parents act in such a way as to hold the child out to be their child, how much less plausible is it for a mother, after separation, to be able to disclaim a child as being that of her husband when the child was conceived during marriage and they have lived in a family relationship in which the husband apparently held out the child to be his own.

The case exactly on point in relation to the mother’s inability to raise the issue of non-paternity is Seger v. Seger, 377 Pa.Super. 391, 547 A.2d 424 (1988). In Seger, the parties were married at the time of the child’s birth and the presumption was that she was the daughter of the husband. When the child was approximately four years old, the husband was told she was not his daughter and despite this information he continued to support her and hold her out to be his own. Four years later, when the child was about nine years of age, the parties separated and the mother took the child with her to Florida. Following a custody action, in which blood tests were ordered and admitted as evidence, the husband was determined not to be Jessica’s biological father but was granted visitation rights. Visitation was never honored by the mother and a further proceeding was held after which the court denied any further visitation because the husband was not the biological father of the child. In reversing the trial court and remanding for a new Order, this Court held that the mother no less than the father, in situations where the man has lived with the mother and has been held out as the father of the child, is subject to the rule which works an estoppel to a disclaimer of paternity. There we stated if a father’s conduct works an estoppel on his assertion of non-paternity in a support matter, there is no principal in law which would prevent the same application to a case where the mother informs the father he is responsible for the pregnancy, marries him, assigns paternity to him on the birth certificate, permits him to support the child and assume the parental duties for years and only upon separation, repudiates his paternity. Under these circumstances, permitting a blood test was improper and denying visitation rights was impermissible.

From all of the above, it is clearly apparent that the principle announced in Paula T is not applicable to the facts of this case.

This case must, therefore, be remanded for further evidence to be presented to the court as to the actual relationship of the presumptive father and natural mother and as to whether or not the doctrine of estoppel applies. Only in the event that estoppel does not apply and it appears the father did not accept the child to be his own by holding it out and/or supporting the child, will the mother be permitted to proceed with her claim against the appellant which may be aided by use of the blood test. If there is substantial evidence to the effect that the father has denied paternity and refused to accept responsibility from the time he was reasonably aware of his non-paternity, then the rule in Goldman would apply and permit the taking of the blood test of appellant. Otherwise the presumption of legitimacy has not been rebutted and estoppel must be invoked to prevent the blood test with the issue of paternity settled in favor of the presumptive father.

Order vacated; case remanded for further hearing in conformity with this Opinion.

Jurisdiction relinquished.

JOHNSON, J., dissents.

JOHNSON, Judge,

dissenting:

I join so much of the majority’s opinion which finds that Donna K. Christianson had the burden of demonstrating that the doctrine of estoppel should not apply before she is permitted to proceed with her complaint for support against alleged putative father Robert M. Ely. I agree with the holding of the majority that, when a parent is estopped from denying paternity and the presumption of legitimacy has not been rebutted, paternity is not a relevant fact.

The only issue brought before this court on this appeal is whether an assistant district attorney, acting on behalf of an alleged complainant, may compel any individual to submit to blood tests pursuant to the Uniform Act on Blood Tests to Determine Paternity, where paternity has not been established as a relevant fact. The panel is in agreement that such compulsion is entirely inappropriate. The majority would remand for further evidence to be presented to the court as to “the actual relationship of the presumptive father and natural mother and as to whether the doctrine of estoppel applies.” Majority opinion, page 966. Since I believe the introduction of additional evidence on this issue is unnecessary to our disposition of this appeal, I must respectfully dissent.

After the Snyder County assistant district attorney had filed the Complaint for Support against Robert M. Ely in this case on July 13, 1988, the court issued its certification and order for transmission to Union County. The Union County court ordered a support conference. Ely filed preliminary objections on August 12, 1988, alleging that a support complaint had been filed in Snyder County on February 27, 1987 against Bruce Christianson, the husband of the complainant, Donna K. Christianson. That earlier complaint sought support for three minor children, including Tenaya Beth Christianson, alleging Bruce Christianson to be the natural father of all three and further alleging the cohabitation between natural father and mother at all times material to a determination of paternity.

Ely further alleged, by way of preliminary objection, that there had been no proceeding concluded by the complainant seeking support from the natural father, Bruce Christian-son, her husband at the time of both the birth and conception of Tenaya Beth, Bruce Christianson being the presumptive father of Tenaya Beth Christianson.

When oral argument was held on the preliminary objections on November 4, 1988, the Union County assistant district attorney conceded that he had no meritorious response to Ely’s preliminary objections. The court took judicial notice of the Snyder County proceedings which did not include any disposition of the claim for support for Tenaya Beth. The Union County court then stayed all proceedings pending disposition of the support claim for Tenaya asserted against Bruce Christianson in Snyder County.

A thorough review of the entire record establishes that the next pleading or action taken in this case following the stay of proceedings is the Motion for Blood Tests presented ex parte on February 21, 1989. The motion is acknowledged by the assistant district attorney who presented the motion, Michael T. Hudock. Paragraph 6 of the Motion alleges:

6. That the Plaintiff has reported that Bruce N. Christianson is not the father of the child and that Robert M. Ely is the father of the child.

The motion contains no reference to the order entered November 9, 1988 staying all proceedings or the finding of the court requiring disposition of the Snyder County claim before any complaint could be fairly pursued against any other alleged father, including Robert M. Ely. If counsel was aware of the material facts regarding the Snyder County action, indexed at No. 36,1987, those facts were not included in the Motion for Blood Tests presented on February 21, 1989. The order entered the next day by the court is also silent as to the status of the Snyder County proceedings as they relate to Bruce Christianson’s obligation for support.

Here, the trial court recognized on November 9, 1988 that it was improper to proceed against a putative father when there remained outstanding a support action in another county claiming support from the presumptive father, with whom the complainant had been living during the period of conception and birth. From the record, the same court, on February 22, 1989, sought to compel a third person, Robert Ely, to submit to blood testing on the ex parte request of the assistant district attorney, based on the hearsay statements of the complainant, and with no judicial ruling on record that Bruce Christianson was not the father.

Our responsibility on this appeal is not to determine who might be the father of Tenaya Beth Christianson. I am satisfied that paternity is not a relevant fact where the presumption of legitimacy has not been rebutted. If, as is suggested in the Application for Stay or Injunction Pending Appeal filed by Ely in the trial court on March 20, 1989, the Snyder County proceeding against the natural father was withdrawn ex parte by the Snyder County district attorney’s office, then the presumption of the natural father’s paternity has clearly not been rebutted, and paternity remains something other than a relevant fact in this proceeding.

The majority would permit the complainant to return to the Union County court to litigate a matter that appears to have been withdrawn from the consideration of the Snyder County court by the complainant. It seems that the majority would seek to have the Union County court consider whether there is substantial evidence to the effect that the father has denied paternity and refused to accept responsibility, even though the father is not a party to the Union County proceeding so far as the record would disclose. The only allegation in the Motion for Blood Tests to support a further evidentiary hearing is the assistant district attorney’s averment that the complainant “reported that Bruce N. Christianson is not the father of the child and that Robert M. Ely is the father of the child.”

For me, that does not raise a prima facie claim sufficient to rebut the presumption of legitimacy. There is nothing to prevent the complainant from coming forth with a proper claim should she so elect. On the record before us, I would find, as does the majority, that the order directing blood tests was not supported by the record inasmuch as paternity was not a relevant fact. I would reverse the order. Since paternity is not a relevant fact, I conclude it would be inappropriate for this court to require the appellant to remain subject to the actions of the assistant district attorney until such relevancy might, perchance, be developed. Therefore, I respectfully dissent with regard to the remand for further proceedings.

      . Appellant presents the following questions for our review:
      1. Can a Complainant require any individual to submit to blood tests pursuant to 42 Pa.C.S.A. Section 6133 when:
      (a) she has filed a previous support complaint naming her husband as the father of the child;
      (b) no legal determination was made that her husband, who was married to and had access to her during conception and birth of the child and supported the child until the parties later separated, is in fact, not the father;
      (c) the husband and presumed father may be estopped from denying paternity?
      2. Have appellant’s constitutional rights of due process of law and freedom from unreasonable search and seizure been violated by the entry of the ex parte order requiring him to submit to an intrusive blood test?
      (Brief of appellant at p. 3.)

      . Although the proceedings of the prior support complaint are not part of the record, the trial judge did take judicial notice of them in his Order on this case granting preliminary objections on November 9, 1988.

      . These facts are taken from the parties’ briefs. We are unable to verify this information as the relevant case record is not before us.

      . The most recent pronouncement on this issue, which is both definitive and controlling, is expressed in the United States Supreme Court case of Michael H. and Victoria D. v. Gerald D., — U.S.-, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989). In that case, Justice Scalia, announcing the judgment of the Court, strongly reaffirmed the common law doctrine of presumption of legitimacy arising out of birth during coverture, and affirmed the Order of the California Supreme Court in denying the putative father, Michael H., visitation rights to the child, Victoria. Blood tests, prior to the court action, conclusively established the probability that Michael was Victoria’s father, he had lived with the mother and child for periods of time while the mother was separated from the husband/father and had acknowledged paternity and held himself out as Victoria’s father, with the mother’s approval.
      In the Supreme Court’s decision, an action on behalf of Victoria by her child advocate was also dismissed, the Supreme Court declaring she had no standing,. there was no liberty interest, due process violation, and under the "rational relationship” test, she could not rebut the presumption of her own legitimacy. The court maintained that only the natural parents may rebut the presumption of legitimacy vis-a-vis each other, because, at that point, the underlying strong historical state policy of protecting the unity of the family is already shaken by the denial of one or the other parent of paternity. The fact that it was established that Michael is the father is irrelevant in the face of the presumption, which is an expression of state policy to protect the unity of the family. Also, in view of that policy, there is no room for dual parentage, and unless he could be declared the child’s father, which is impermissible, Michael has no right of visitation.

      . For this reason we have questions which remain unanswered by Paula T. that where the presumption of parentage is collaterally attacked by a third party, if the parents to the marriage raise estoppel, whether a blood test may be ordered in the face of evidence of estoppel.

      . The trial court relied on Parenti v. Parenti, 263 Pa.Super. 282, 397 A.2d 1210 (1979), and In re Mengel, 287 Pa.Super. 186, 429 A.2d 1162 (1981), as authority for ordering the blood test. In Parenti, the father requested the blood test as he was separated ten months and divorced six months at the time of birth of the child. The evidence of ten month’s separation before birth and denial upon the birth met the test of Commonwealth ex rel. Goldman v. Goldman, 199 Pa.Super. 274, 184 A.2d 351 (1962), and established parentage as a relevant fact in a support action triggering authority to issue an Order for a blood test pursuant to section 6133. Estoppel, therefore, could not be applied against the father. In re Mengel has to do with the putative father of an illegitimate child who, by declaratory judgment action, wished to determine whether or not he was the father of the child and requesting a blood test to aid in this determination. There, we held he had standing and a blood test was appropriate. Neither of these cases are apposite to the present case and reliance by the trial court on them in ordering a blood test was misplaced.

      . The Dissenting Opinion would not permit a hearing on the issue of estoppel as proposed by the majority because the appellee/mother has not pled facts indicating an estoppel. Pursuant to the language quoted in Goldman, supra, it appears such an enquiry should be permitted. The procedural posture of this case is such that two claims have been made against different men in different courts. Domestic relations practice does not provide for or invite pleadings, but merely for allegations of jurisdiction and venue. Here the appellee/mother must come forward to rebut the estoppel or she is foreclosed from proceeding with her claim against appellant. Unless a determination is made on this issue, the possibility exists that, with the actions having been dismissed against both men without a finding of paternity, the child will be without support from either. A definitive finding of either estoppel or paternity in this action will be res judicata as to that issue and support proceedings can then move forward as to one or the other of the men.


author: PER CURIAM:

text:
    568 A.2d 968
    COMMONWEALTH of Pennsylvania v. Paul J. SCHELLENBERGER, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1989.
    Filed Jan. 16, 1990.

      Paul J. Schellenberger, pro. per.
    Thomas P. Smida, Allentown, for appellee.
    Before McEWEN, OLSZEWSKI and TAMILIA, JJ.
   PER CURIAM:

This is an appeal from the judgments of sentence at nos. 413-S-1984 and 125-S-1986 imposed April 25, 1989 following denial of appellant’s post-trial motions on March 8,1989. Appellant was convicted of violating the earned income tax ordinance of Lower Macungie Township by failing, neglecting or refusing to file earned income tax returns for the years 1983 and 1984, He was sentenced to pay a $100 fine plus costs for each of the two convictions and to file declarations of earned income tax for 1983 and 1984 and pay the appropriate taxes thereunder. Imposition of sentence was stayed pending appeal.

Appellant’s post-trial motions challenge the convictions alleging the prosecution failed to prove its case, the trial court lacked jurisdiction over appellant and the tax ordinance is unconstitutional. The trial court denied the motions, and appellant, pro se, brings this appeal.

We begin with an examination of appellant’s claim the taxing ordinance is unconstitutional. Appellant argues the tax is unconstitutional because it infringes upon his right to labor, and as such denies him due process. We see no merit to this contention. The power to tax, in Pennsylvania, is vested in the General Assembly as an attribute of sovereignty limited by the Pennsylvania and United States Constitutions. Pa. Const. Art. VIII, Sec. 1; Commonwealth v. Perkins, 342 Pa. 529, 21 A.2d 45 (1941), aff'd, 314 U.S. 586, 62 S.Ct. 484, 86 L.Ed. 473 (1942). The Local Tax Enabling Act of 1965, 53 P.S. § 6901, et seq., grants Lower Macungie Township the authority to tax earned income. 53 P.S. § 6902. This grant of authority to tax has been long recognized in Pennsylvania. See Dole v. Philadelphia, 337 Pa. 375, 11 A.2d 163 (1940); English and McCormick v. School Dist. of Robinson Township, 358 Pa. 45, 55 A.2d 803 (1947); Aronson v. Pittsburgh, 86 Pa.Cmwlth. 591, 485 A.2d 890 (1985). If we accepted appellant’s reasoning, we would have to declare all taxes at every level of government unconstitutional as an infringement on the individual’s right to work. This of course is patently absurd and we find this tax does not infringe on appellant’s right to work.

Additionally, appellant contends the Local Tax Enabling Act violates his right against self-incrimination under the fifth and fourteenth amendments to the United States Constitution and article 1, § 9 of the Commonwealth of Pennsylvania Constitution. Specifically, appellant objects to the local ordinance's provisions calling for production of all books, records and papers for examination by the tax officer and providing penalties for failure to file a return. Lower Macungie Township Earned Income Tax Ordinance § 11.01. “ ‘[TJhere is no compulsory self-crimination in a rule of law which merely requires beforehand a future report on a class of future acts among which a particular one may or may not in future be criminal at the choice of the party reporting.’ ” City of Philadelphia v. Cline, 158 Pa.Super. 179, 44 A.2d 610 (1945), quoting 8 Wigmore on Evidence, 3d Ed., § 2259c. In Cline, this Court found no violation of the privilege against self-incrimination in the earned income tax ordinance of Philadelphia, which requires filing of returns evidencing tax liability. So too we find no violation of the privilege against self-incrimination in the instant case.

Appellant further argues the trial court had no jurisdiction over this case because the case is really a civil proceeding and not a criminal case. Appellant incorrectly relies on the now overturned decision in York v. Baynes, 188 Pa.Super. 581, 149 A.2d 681 (1959), for the proposition an action brought against a defendant for violation of a municipal ordinance is actually a suit for the recovery of a penalty due the municipality and is not a summary criminal proceeding but is a civil proceeding. Because the Local Tax Enabling Act and the Township’s Earned Income Tax Ordinance provide for a hearing before a magistrate and for imprisonment upon conviction, we find the instant case is a criminal case pursuant to the Pennsylvania Rules of Criminal Procedure. Appellant also claims he is “a free and natural person,” and as such he does not fall under the township’s tax ordinance (Appellant’s Brief, Jurisdiction argument, p. 3). Appellant cannot create a special legal status for himself so as to avoid the laws of the Commonwealth. Commonwealth v. Phelps, 388 Pa.Super. 624, 566 A.2d 303 (1989). As a result, the trial court properly exercised jurisdiction over the case.

To the extent we can determine from appellant’s unclear and unconventional brief, his final argument for reversal is that the Commonwealth failed to prove its case. Appellant claims the prosecutor did not prove all the elements of the offense. The township’s ordinance, enacted under the Local Tax Enabling Act, states, inter alia:

Any person who fails, neglects or refuses to make any declaration or return required by this Ordinance; ... any person who refuses to permit the Income Tax officer, or any agent properly designated by him, to examine his books, records and papers; and any person who makes any incomplete, false or fraudulent return to avoid the payment of the whole or any part of the tax imposed by this Ordinance, upon conviction thereof before a Justice of the Peace within Lower Macungie Township [sic], shall be sentenced to pay a fine of not more than Five Hundred ($500.00) Dollars and not less than One Hundred ($100.00) Dollars plus costs for each offense, and in default of payment of said fine and costs, shall be imprisoned in the Lehigh County jail for a period not exceeding thirty (30) days.

Lower Macungie Township Earned Income Tax Ordinance, § 11.01.

From the ordinance itself, we find the necessary elements for conviction to be satisfied when any person fails, neglects or refuses to make a declaration or return, refuses to allow the Income Tax officer to examine his books, records and papers or files a false or fraudulent return. A review of the record suggests ample evidence, presented by the prosecution, to support appellant’s conviction. The township’s tax collector testified he sent several letters to appellant notifying him of the need to file a return, and there was no response or explanation (T.T., 3/14/86, p. 18). The tax collector also testified appellant did not, in fact, file a return for the years in question or make any response whatsoever (T.T. at 37). We find this testimony enough to support appellant’s conviction. Thus we agree with the trial court’s denial of appellant’s post-trial motions and subsequent entries of judgments of sentence.

Judgments of sentence affirmed.

      . Lower Macungie Township Ordinance §§ 3:00 Declaration and Payment of Tax and 3:02 Salaries, Wages, Commissions and Other Compensation.

      . Appellant attempts to add another similar conviction to this appeal, namely docket no. 426-S-1983, which appellant incorrectly identified as docket no. 421-S-1983 in one of the two notices of appeal contained in the record. Because a check with the Lehigh County prothonotary reveals 421-S-1983 does not concern this appellant and there has been no action on case 426-S-1983 for over three years and the Order from which this appeal is taken does not include 426-S-1983, we do not address it here. This matter is also addressed incorrectly in the Commonwealth’s brief at pages 2-3 as 421-S-1983. We also note both the trial court’s opinion and the Commonwealth’s brief incorrectly refer to appellant’s appeals to this Court of the same convictions, 413-S-1984 and 125-S-1986, and this Court’s July 16, 1985 Order to remand with instructions to advise appellant of his right to file post-trial motions (Slip Op., Diefenderfer, J., 3/8/89, p. 2 and Appellee’s brief, pp. 1-2). This Court's July 16, 1985 Order to remand pertains only to 426-S-1983, which as noted above is not proper subject of this appeal. A review of the records reveal no previous appeal to this Court on either 413-S-1984 or 125-S-1986.

      . We also note appellant has not asserted this privilege against self-incrimination in the proceedings. To properly assert the privilege, appellant must raise it on a document-by-document basis, and he must demonstrate all the elements of the privilege are present. See, U.S. v. First State Bank, 691 F.2d 332 (7th Cir.1982). Having failed to timely assert the privilege, appellant cannot now invoke it to absolve him of liability.

      . See Pa.R.Crim.P. 3 and 67(f).


author: WIEAND, Judge:

text:
    568 A.2d 971
    Lisa D. OCHS, Appellee, v. ERIE INSURANCE EXCHANGE, Appellant, v. PENNSYLVANIA CATASTROPHIC LOSS TRUST FUND, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 12, 1989.
    Filed Jan. 19, 1990.

      Herbert N. Rosenberg, Pittsburgh, for appellant.
    Arthur Selikoff, Harrisburg, for Pennsylvania Catastrophic Loss, appellee.
    Neil R. Rosen, Pittsburgh, for Ochs, appellee.
    Before WIEAND, TAMILIA and HESTER, JJ.
   WIEAND, Judge:

The issue in this appeal is whether an insurance company which has insured an injured plaintiff under two policies, one issued pursuant to the Motor Vehicle Financial Responsibility Law and the other pursuant to the Pennsylvania No-fault Motor Vehicle Insurance Law, can elect to pay benefits only under the former policy which has a limit of $100,000.00 and thereby avoid liability for monetarily unlimited medical expenses under the No-fault policy.

On July 6,1985, Lisa D. Ochs, while riding as a passenger in a vehicle, was involved in an accident which caused fractures of her thoracic and lumbar vertebrae (T-12 to L-l). She now suffers paraplegia and is permanently disabled. At the time of the accident, Ms. Ochs resided in Clarion, Pennsylvania, with her father and brother. She was not the named insured in any policy of automobile insurance at the time of the accident, but was an insured under a policy of automobile insurance which had been issued to her father by Erie Insurance Exchange (Erie) pursuant to the Motor Vehicle Financial Responsibility Law of February 12, 1984, P.L. 26, No. 11, 75 Pa.C.S. §§ 1701 et seq., effective October 1, 1984 (hereinafter MVFRA). This policy provided for the payment of medical benefits in amounts not to exceed $100,000.00. Ochs was also an “eligible person” under a policy of insurance which had been issued by Erie to her brother. This policy had been issued under the prior No-fault Motor Vehicle Insurance Act of July 19, 1974 and had neither been renewed nor reissued after the effective date of MVFRA. Following the accident, Erie paid to Ochs lost income in the amount of $8,504.10 and medical benefits in the amount of $100,000.00. Thereafter, Erie refused to reimburse Ochs for additional medical expenses, contending that it had paid to the limit of its liability under the MVFRA policy and that the Catastrophic Loss Trust Fund (CAT Fund) was responsible to reimburse her for additional medical expenses. When Ochs made a claim for CAT fund benefits, however, her claim was denied. A claim under the No-fault provisions of the policy which had been issued to Ochs’ brother was also denied by Erie, which contended that it had no duty to pay benefits until the CAT fund had paid medical benefits up to a million dollars.

Ochs commenced the instant action against Erie, and Erie caused the Pennsylvania Catastrophic Loss Trust Fund (CAT Fund) to be joined as an additional defendant. Based upon stipulated facts, the trial court held that Erie was liable for plaintiffs medical expenses under its No-fault policy. A motion for post-trial relief was denied, and Erie appealed.

Section 11 of the Motor Vehicle Financial Responsibility Law provides that the Act “applies to insurance policies issued or renewed on or after the effective date of this act.” Therefore, the No-fault policy, which had been issued by Erie to plaintiffs brother prior to October 1, 1984 and not renewed prior to the accident, remained in effect and subject to the provisions of the No-fault Act. See: Soles v. Pennsylvania Mutual Insurance Co., 372 Pa.Super. 605, 608, 539 A.2d 1360, 1362 (1988), allocatur granted, 521 Pa. 622, 557 A.2d 725 (1989); Borysowski v. State Farm Mutual Insurance Co., 368 Pa.Super. 399, 407, 534 A.2d 496, 500 (1987). Under the provisions of the No-fault Act, an insurer’s liability for medical and rehabilitation expenses is unlimited. See: 40 P.S. §§ 1009.103 and 1009.-202.

Under the provisions of MVFRA, an automobile insurance policy may contain monetary limits. An insurer must provide medical benefits in the amount of at least $10,000.00 (75 Pa.C.S. § 1711) and must make available for purchase first party benefits which include up to $100,000.00 in medical benefits (75 Pa.C.S. § 1715). The CAT Fund was directed to provide catastrophic loss benefits for the payment of expenses for medical treatment and rehabilitative services in excess of $100,000.00. See: 75 Pa.C.S. § 1766(a), now repealed. The CAT Fund provisions of MVFRA have no effect on the obligations of an insurer under a policy issued pursuant to the No-fault Law. Employee Benefit Plan of Harleysville Mutual Ins. Co. v. Grode, 112 Pa.Cmwlth. 470, 535 A.2d 739 (1988). There is no coordination between the two; CAT Fund benefits can come into effect only after a no-fault policy has expired. Id. at 475, 535 A.2d at 742.

When plaintiff was injured in the summer of 1985, she was insured under both policies which had been issued by Erie. Her rights under these policies were contractual. Neither the language of the policies, the provisions of MVFRA, nor the language of the No-fault law established a priority for the payment of benefits pursuant to the policies. Therefore, the plaintiff could properly claim benefits under the No-fault policy which contained no monetary limit on the amount of medical benefits which she could receive. Erie could not require that she proceed solely under the MVFRA policy which had a limit of $100,000.00 on the amount of medical benefits which could be recovered.

It is clear, therefore, that Erie is liable to the plaintiff under the terms of its No-fault policy for medical benefits in an amount which is not monetarily limited. It follows that the CAT Fund is not liable to the plaintiff for medical expenses incurred in excess of $100,000.00, because, as we have seen, it does not come into effect to relieve or limit the obligations of an insurer whose liability is determined according to a policy issued under the No-fault law.

Because Erie is liable for benefits under the No-fault policy issued to plaintiff’s brother, the CAT Fund is also relieved of liability by the express language of the statute which created it. At 75 Pa.C.S. § 1761, now repealed, the legislature stated: “Catastrophic loss benefits shall not duplicate any other payments for medical treatment or rehabilitation services.”

Appellant argues that the CAT Fund is liable because Ms. Ochs falls within the definition of “eligible claimant” in section 1761 of MVFRA. Specifically this section provides:

Otherwise eligible claimants shall not be disqualified from participating in or receiving benefits from the Catastrophic Loss Trust Fund for injuries suffered after the effective date of this subchapter but prior to their first registration renewal after the effective date of this sub-chapter.

Id. Appellant argues that “the use of the phrase ‘first registration renewal’ implies that [where] an existing and valid no-fault policy was in force on October 1, 1984” a claimant cannot be disqualified from participation in the CAT Fund. We disagree. The reference to registration renewal in the definition of eligible claimant does not refer to the existence of a no-fault policy. It refers, rather, to the requirement of section 1762 that each motor vehicle registrant pay a charge which provides revenue for the CAT Fund. Therefore, we agree with the Commonwealth Court which, in Employee Benefit Plan of Harleysville Mutual Insurance Co. v. Grode, supra, said the following:

As already mentioned, Section 11 of the Financial Responsibility Law renders the Law applicable to all insurance policies issued or renewed after October 1,1984, and here the polic[y] unquestionably [was] not issued or renewed after that date. We believe that the reference to the five dollar funding fee in the definition of “eligible claimant” recognized that the date for issuance of insurance policies did not necessarily coincide with the date an insured’s automobile registration expired. The situation therefore could arise where an insured would be covered by a policy issued or renewed after October 1, 1984 and have an accident before the then current registration expired. To foreclose any argument that the insured was not eligible for CAT Fund benefits, the Legislature explicitly provided for this possibility in its definition of “eligible claimant.” While appellants argue that the Legislature could have specifically excluded those covered by a no-fault insurance policy if that was its intent, we believe the Legislature addressed this problem in Section 11 by stating that the provisions of the Financial Responsibility Law applied only to insurance policies issued or renewed after October 1, 1984, thereby leaving in force any no-fault policies until those policies expired.

Id. at 475, 535 A.2d at 741-742.

Appellant also relies on Section 1766(c), which provides:

(c) Effect of other benefits. — Except for workers’ compensation, catastrophic loss benefits paid or payable by the fund shall be primary to any other available source of accident or health benefits including any program, group contract or other private or public source of benefits unless the law authorizing or providing those benefits makes the benefits primary to the benefits provided under this subchapter.

75 Pa.C.S. § 1766. Appellant contends that this section specifies only worker’s compensation benefits as primary to CAT Fund benefits and that nothing in the No-fault Act suggests that No-fault benefits should be primary to CAT Fund benefits. Appellant argues, therefore, that the CAT Fund is primarily liable for plaintiff’s additional losses. As we have already observed, however, the No-fault policy is not subject to the provisions of the MVFRA. There is no coordination between MVFRA and the No-fault Law. Therefore section 1766(c) of MVFRA cannot be read to prioritize CAT Fund benefits and No-fault benefits.

We conclude, therefore, that Erie could not transfer its liability for No-fault medical benefits to the CAT Fund by the expediency of labelling medical payments as MVFRA benefits under a separate policy of insurance which provided lesser benefits. MVFRA was not liable for medical benefits so long as plaintiff’s medical expenses were being paid under and pursuant to Erie’s No-fault policy.

Finally, the trial court did not err when it awarded interest at the rate of eighteen (18%) percent on overdue payments. Authority for such interest appears in the No-fault Law, 40 P.S. § 1009.106(a)(2), as follows:

“(2) No-fault benefits are overdue if not paid within thirty days after the receipt by the obligor of each submission of reasonable proof of the fact and amount of loss sustained____ Overdue payments bear interest at the rate of eighteen per cent (18%) per annum.

Because these issues were correctly decided by the trial court, its adjudication is affirmed.

      . The No-fault Act was repealed by MVFRA, effective October 1, 1984.

      . The CAT Fund provisions of MVFRA were repealed by the Act of Dec. 12, 1988, P.L. 1120, No. 144.

      . The CAT Fund provisions of MVFRA contain lifetime limits of one million dollars and annual limits of $50,000.00. See: 75 Pa.C.S. § 1766. Erie agrees that it is responsible under its No-fault policy for medical benefits in excess of these CAT Fund/MVFRA limits.

      . See: 75 Pa.C.S. § 1701, Historical Note.