author: BECK, Judge. CIRILLO, Judge, DEL SOLE, Judge,

text:
    676 A.2d 253
    Daniel CELLUCCI v. GENERAL MOTORS CORPORATION and Joseph V. DeFalco.
    Superior Court of Pennsylvania.
    Argued Nov. 2, 1995.
    Filed April 30, 1996.

      David Heilbron, San Francisco, CA, for appellant.
    Larry E. Coben, Scottsdale, AZ, for DeFalco, appellee.
    Arthur H. Bryant, Philadelphia, for Trial Lawyers for Public Justice, amicus curiae.
    Before ROWLEY, President Judge, and CAVANAUGH, McEWEN, CIRILLO, DEL SOLE, BECK, TAMILIA, JOHNSON and HOFFMAN, JJ.

       President Judge Rowley joined the majority’s opinion prior to his retirement from the court, but before the dissent was circulated. His vote; therefore, is not counted as a vote in favor of the majority.

      . See 15 U.S.C. § 1381 et seq. and 49 U.S.C. § 105. See also 49 C.F.R. Part 571.

      . President Judge Rowley did not participate in the consideration or decision of this case.

   BECK, Judge.

The issue is whether the instant products liability action against appellant General Motors Corporation (“GM”) is preempted by the National Traffic and Motor Vehicle Safety Act of 1966, 15 U.S.C. §§ 1381 et seq. (the “Safety Act”) and the pertinent Federal Motor Vehicle Safety Standards (“Safety Standards”) and regulations promulgated thereunder. GM asks that we overrule our decisions in Gingold v. Audi-NSU-Auto Union, AG., 389 Pa.Super. 328, 567 A.2d 312 (1989) and Heiple v. C.R. Motors, Inc., 446 Pa.Super. 310, 666 A.2d 1066 (1995), and adopt the reasoning of the United States Court of Appeals for the Third Circuit in Pokorny v. Ford Motor Co., 902 F.2d 1116 (3d Cir.1990), cert. denied, 498 U.S. 853, 111 S.Ct. 147, 112 L.Ed.2d 113 (1990). We do so, and thereby reverse the trial court’s denial of GM’s motion for partial summary judgment. Cf. Muntz v. Commonwealth of Pennsylvania, 674 A.2d 328 (1996) (air bag claim not preempted by federal law).

The relevant facts are not in dispute. Appellee Daniel Cellucci was injured when the 1986 Chevrolet Cavalier in which he was a passenger left the road and collided with a tree. The Cavalier was equipped with three-point lap and shoulder harness safety belts, and a dashboard light and buzzer designed to promote seat belt use. Cellucci maintains that he was wearing his seat belt at the time of the accident, but that he nevertheless sustained severe injuries, including permanent brain damage. Cellucci brought this action asserting, inter alia, that GM’s vehicle was defectively designed because it lacked passive restraints, specifically, air bags. GM filed a motion for partial summary judgment claiming that federal law impliedly preempts claims that an automobile is defective because it lacks air bags. The trial judge, although expressing his opinion that Cellucci’s action is in fact preempted by federal law, stated that he was bound by this court’s decision in Gingold, supra, and therefore denied GM’s motion.

In this appeal from the decision on a summary judgment motion, our review is plenary; summary judgment is proper where there exists no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Pa.R.Civ.P. 1035(b). Because the preemption issue raises a question of law in this setting of undisputed facts, the issue was ripe for summary judgment. See Pokorny, supra at 1119. In their briefs to this court, GM and amicus argue that Cellucci’s common law action is impliedly preempted by the Safety Act. On the other hand, Cellueci and amici argue that his action remains viable despite the existence of the Safety Standards and the Safety Act.

We first provide an overview of the relevant statutory context. The purpose of the Safety Act was “to reduce traffic accidents and deaths and injuries to persons resulting from traffic accidents.” 15 U.S.C. § 1381. Undoubtedly, a secondary goal was to promote nationwide uniformity among automobile safety standards. Pokorny, supra at 1122. By 1986, Safety Standard 208 had been promulgated pursuant to the Safety Act and provided automobile manufacturers with three options for occupant restraint systems: 1) a complete passive restraint system for front and lateral crashes; 2) passive restraints for frontal crashes plus lap belts, shoulder harnesses and a warning system; or 3) a three-point manual seat belt with a warning system. Gingold, supra at 336-38, 567 A.2d at 317 (citing 49 C.F.R. §§ 571.208 § 4.1.2.1, § 4.1.2.2, and § 4.1.2.3). Although a phase-in requirement for passive restraints (such as airbags) was instituted by Safety Standard 208, it was not to begin until 1987. Thus, GM was in compliance with Safety Standard 208 when it chose the third option, 3-point manual seat belts with a warning system, as installed in the 1986 Cavalier.

In addition, the Safety Act included the folio-wing language which we will refer to as the “preemption clause”:

§ 1392. Motor vehicle safety standards.
(d) Supremacy of federal standards; allowable higher standards for vehicles used by Federal or state governments Whenever a Federal motor vehicle safety standard established under this subchapter is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard. Nothing in this section shall be construed as preventing any State from enforcing any safety standard which is identical to a Federal safety standard. Nothing in this section shall be construed to prevent the Federal Government or the government of any State or political subdivision thereof from establishing a safety requirement applicable to motor vehicles or motor vehicle equipment procured for its own use if such requirement imposes a higher standard of performance than that required to comply with the otherwise applicable Federal standard.

15 U.S.C. § 1392(d) (emphasis added).

The Safety Act also includes a “savings clause” in section 1397(k):

(k) Continuation of common law liability
Compliance with any Federal motor vehicle safety standard issued under this subchapter does not exempt any person from any liability under common law.

15 U.S.C. § 1397(k). It is this section to which Cellucci and other opponents of preemption point for support of their argument that “no airbag” claims present valid common law causes of action.

We provide an overview of the relevant decisions courts in this Commonwealth have made on this issue. In Gingold v. Audi-NSU-Auto Union, AG, 389 Pa.Super. 328, 567 A.2d 312 (1989), the plaintiff claimed that the defendant’s 1983 Audi was defective because, inter alia, it lacked air bags. The trial court granted a partial summary judgment on the ground that the “no air bag” claim was preempted by the Safety Act. Id. at 330-32, 567 A.2d at 314. A panel of this court reversed, holding that the savings clause preserved the common law action against Audi for failure to install air bags. Id. at 333-34, 567 A.2d at 315. The court reasoned that unless the savings clause was interpreted as an “anti-preemption” clause, it would serve no purpose in the Act. Id. at 356-58, 567 A.2d at 327. In making its decision, the court conceded that it was joining “the ranks of the minority” Id. at 334, 567 A.2d at 315.

In 1990, the United States Court of Appeals for the Third Circuit decided Pokorny v. Ford, supra. Pokorny sued on behalf of her decedent John Duffy, who died when the 1981 Ford van in which he was a passenger crashed. The lawsuit included claims that the Ford was defective because it lacked air bags and window netting that would have prevented Duffy from being partially ejected from a window. 902 F.2d at 1118. Basing its decision primarily on the savings clause, the Third Circuit held that the Safety Act did not expressly preempt the air bag claim. Id. at 1121. However, the court reasoned that there was an actual conflict between the federal Safety Standards providing options to automobile manufacturers and the potential damages awards of common law actions essentially based on the manufacturers’ compliance with the federal regulatory framework. The court concluded that the Safety Act therefore impliedly preempted Pokomy’s air bag claims. Id. at 1125. The court did allow the window netting claim to proceed as there were no applicable federal Safety Standards regarding window netting, and therefore no conflict. Id. at 1126. The United States Supreme Court denied certiorari on the case. 498 U.S. 853, 111 S.Ct. 147, 112 L.Ed.2d 113 (1990).

Most recently, our court was faced with a “no air bag” claim in Heiple v. C.R. Motors, Inc., 446 Pa.Super. 310, 666 A.2d 1066 (1995), and the panel again decided that the common law action was not preempted by the Safety Act. The plaintiff was injured when he was involved in a motor vehicle accident while operating his 1986 Chevrolet Celebrity. In his lawsuit the plaintiff claimed, inter alia, that the car was defective because General Motors had failed to install an air bag. After considering whether the action was expressly preempted by the Act, the court decided that the language of the preemption clause, § 1392(d), was too narrow and specific to include common law tort actions within its purview. The court was persuaded that the savings clause at § 1397(k) preserved all common law actions such as the plaintiffs. The court reasoned that the savings clause expressly precluded a finding of federal preemption. On this issue, the court rejected the reasoning of the Third Circuit in Pokomy. In addition, the court rejected an implied preemption analysis.

Speaking generally on the subject of preemption, the United States Supreme Court stated in Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992):

Article VI of the Constitution provides that the laws of the United States “shall be the supreme Law of the Land; ... any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” Art VI, cl. 2. Thus, since our decision in McCullough v. Maryland, 4 Wheat. 316, 427, 4 L.Ed. 579 (1819), it has been settled that state law that conflicts with federal law is “without effect.” Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114 [2128-29], 68 L.Ed.2d 576 (1981). Consideration of issues arising under the Supremacy Clause “start[s] with the assumption that the historic police powers of the States [are] not to be superseded by ... Federal Act unless that [is] the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146 [1152], 91 L.Ed. 1447 (1947). Accordingly, “ ‘[t]he purpose of Congress is the ultimate touchstone’” of preemption analysis. Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185 [1190], 55 L.Ed.2d 443 (1978) (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219 [223], 11 L.Ed.2d 179 (1963)).
Congress’ intent may be “explicitly stated in the statute’s language or implicitly contained in its structure and purpose.” Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct 1305 [1309], 51 L.Ed.2d 604 (1977). In the absence of an express congressional command, state law is preempted if that law actually conflicts with federal law, see Pacific Gas & Elec. Co. v. [State] Energy Resources Conservation and Development Comm’n, 461 U.S. 190, 204, 103 S.Ct. 1713 [1722], 75 L.Ed.2d 752 (1983), or if federal law so thoroughly occupies a legislative field “‘as to make reasonable the inference that Congress left no room for the States to supplement it.’ ” Fidelity Federal Savings & Loan Assn. v. de la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014 [3022], 73 L.Ed.2d 664 (1982) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. at 230, 67 S.Ct. 1146 [1152], 91 L.Ed. 1447).

Cipollone, 505 U.S. at 516, 112 S.Ct. at 2617.

Thus, federal preemption of state law can occur in three types of situations: where Congress expressly preempts state law, where preemption is implied because Congress has occupied an entire field, and where preemption is implied because there is an actual conflict between federal and state law. Pokorny, supra at 1120 (citing Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 108 S.Ct. 1145, 99 L.Ed.2d 316 (1988)). We first consider whether the “no air bag” claim asserted by Cellucci was expressly preempted by the Safety Act and the standards promulgated thereunder.

The Safety Act’s preemption clause explicitly states that when a federal Safety Standard is in effect, “no State shall have any authority either to establish, or to continue in effect any safety standard applicable to the same aspect of performance ... which is not identical to the Federal standard.” 15 U.S.C. § 1392(d). In this case, the Safety Standard applicable to occupant restraint systems provided a choice between three options; air bags were not required. Were Pennsylvania to pass legislation requiring air bags in all vehicles sold here, such a requirement would be a “safety standard ... which is not identical to the Federal standard,” and surely would be expressly preempted by § 1392(d). We are persuaded, however, that tort actions at common law likewise seek to impose standards upon and enforce the duty of defendants to comply with certain standards of conduct. See Green v. Dolsky, 433 Pa.Super. 556, 641 A.2d 600 (1994) (plaintiff’s lawsuit against drug manufacturer was preempted by Medical Device Amendments to Federal Food, Drug and Cosmetic Act which expressly prohibits states from establishing or continuing in effect “requirements” different from those in the federal Act), alloc. granted, 539 Pa. 678, 652 A.2d 1324 (1994). See also Burgstahler v. AcroMed Corp., 448 Pa.Super. 26, 670 A.2d 658 (1995) (federal MDAs preempt state common law actions based on inadequate labeling or failure to warn because these are governed by the Act, but other actions are not preempted); Rosci v. Acromed, Inc., 447 Pa.Super. 403, 669 A.2d 959 (1995) (same).

An award of damages in a common law action can have the same regulatory effect as an affirmative legislative enactment. “ ‘[State] regulation can be as effectively exerted through an award of damages as through some form of preventive relief. The obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy.’ ” Cipollone, 505 U.S. at 521, 112 S.Ct. at 2620 (quoting from San Diego Building Trades Council v. Garmon, 359 U.S. 236, 247, 79 S.Ct. 773, 780, 3 L.Ed.2d 775 (1959)). An award of damages in a “no air bag” case, designed to create and enforce a manufacturer’s duty to install air bags in its automobiles thus would be a “safety standard” that is not identical to the federal standard, in violation of § 1392(d).

In Cipollone, for example, the United States Supreme Court held certain common law actions — those asserting that the defendant cigarette manufacturers had failed to adequately warn smokers about the health consequences of smoking — to be preempted by language in the federal Public Health Cigarette Smoking Act of 1969 (the “Smoking Act”):

No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this Act.

15 U.S.C. § 1334(b) (§ 5(b)). The terms “requirement or prohibition” in the Smoking Act were held to include common law actions for damages, and therefore to expressly preempt them. In this case, the Safety Act’s preemption clause prohibits states from establishing or continuing in effect “safety standards” that are not identical to federal standards. 15 U.S.C. § 1392(d). If this clause stood alone, given our analysis of the term “standards,” we would not hesitate to conclude that the instant “no air bag” claim is expressly preempted.

However, because we must read the preemption clause at § 1397(d) together with the “savings clause” at § 1397(k), we find an ambiguity and thus ultimately decline to hold that Cellucci’s action is expressly preempted. See Pokorny, supra at 1121. Cf. Estate of Montag v. Honda Motor Co., 856 F.Supp. 574 (D.Colo.1994) (air bag claims are expressly preempted by Safety Act), aff'd, 75 F.3d 1414 (10th Cir.1996); Dykema v. Volkswagenwerk AG, 189 Wis.2d 206, 525 N.W.2d 754 (1994), cert. den., — U.S. —, 116 S.Ct. 60, 133 L.Ed.2d 23 (1995) (claim for failure to install lap belt explicitly preempted by Safety Act).

Many more courts, however, have found passive restraint claims not expressly preempted, because the preemption clause does not explicitly mention common law, and because the savings clause, when considered in combination with the preemption clause, makes ambiguous Congress’s intent with respect to preemption of state common law claims ... This court is persuaded that the Safety Act, when considered in its entirety, does not express an unambiguous congressional intent to preempt state common law passive restraint claims. By the same token, it does not unambiguously express an intent to preserve such claims....

Heath v. General Motors Corp., 756 F.Supp. 1144, 1147 (S.D.Ind.1991) (emphasis in original) (citations omitted).

Closer inspection reveals that the “no air bag” claims are impliedly preempted by the Safety Act. Allowing common law claims based on the failure to install air bags to proceed, in the face of specific federal safety standards that permit automobile manufacturers not to install them, would create an actual conflict between the federal and state law such that the state law is impliedly preempted. See Schneidewind, supra.

Once again, we are persuaded by the Third Circuit’s reasoning in Pokomy:

Allowing Pokorny to assert that the Ford van was defectively designed because it did not contain air bags or automatic seat belts frustrates the goals of the federal regulatory framework and undermines the flexibility that Congress and the Department of Transportation intended to give to automobile manufacturers in this area. Because potential common law liability interferes with the regulatory methods chosen by the federal government to achieve the Safety Act’s stated goals, we think Pokorny’s action is preempted to the extent that she alleges that the Ford van was defectively designed because it lacked air bags or automatic seat belts____

902 F.2d at 1123. In essence, because Cellucci’s theory of recovery on the “no air bag” claim effectively would remove the element of choice explicitly provided in Safety Standard 208, his action is preempted by the federal regulatory framework. The vast majority of courts that have considered such claims have reached this same conclusion in their reported opinions. Pokorny, supra; Kitts v. General Motors Corp., 875 F.2d 787 (10th Cir.1989), cert. denied, 494 U.S. 1065, 110 S.Ct. 1781, 108 L.Ed.2d 783 (1990); Wood v. General Motors Corp., 865 F.2d 395 (1st Cir.1988), cert. denied, 494 U.S. 1065, 110 S.Ct. 1781, 108 L.Ed.2d 782 (1990); Tammen v. General Motors Corp., 857 F.Supp. 788 (D.Kan.1994); Heath v. General Motors Corp., supra; Kelly v. General Motors Corp., 705 F.Supp. 303 (W.D.La.1988); Surles v. Ford Motor Co., 709 F.Supp. 732 (N.D.Tex.1988); Schick v. Chrysler Corp., 675 F.Supp. 1183 (D.S.D.1987); Staggs v. Chrysler Corp., 678 F.Supp. 270 (N.D.Ga.1987); Wattelet v. Toyota Motor Corp., 676 F.Supp. 1039 (D.Mont.1987); Panarites v. Williams, 216 A.D.2d 874, 629 N.Y.S.2d 359 (1995); Boyle v. Chrysler Corp., 177 Wis.2d 207, 501 N.W.2d 865 (App.1993); Nissan Motor Corp. v. Superior Court, 212 Cal.App.3d 980, 261 Cal.Rptr. 80 (1989), cert. denied, Meier v. Nissan Motor Corp., 494 U.S. 1066, 110 S.Ct. 1782, 108 L.Ed.2d 784 (1990); Wickstrom v. Maplewood Toyota, Inc., 416 N.W.2d 838 (Minn.App.1987), cert. denied, 487 U.S. 1236, 108 S.Ct. 2905, 101 L.Ed.2d 937 (1988).

Nor does the existence of a savings clause change our determination on this issue. Cf. Tebbetts v. Ford Motor Co., 140 N.H. 203, 665 A.2d 345 (1995) (savings clause preserves common law actions in no air bag claims), cert. denied, Ford Motor Co. v. Tebbetts, — U.S. —, 116 S.Ct. 773, 133 L.Ed.2d 726 (1996); Wilson v. Pleasant, 660 N.E.2d 327 (Ind.1995) (same). As broad as the language in § 1397(k) is, it cannot properly be read to preserve common law actions such as Cellueci’s that would effectively subvert a federal statutory or regulatory scheme. Like the court in Pokomy, we believe the better approach is to construe the savings clause to permit only those lawsuits that do not conflict with or undermine the federal scheme. Pokorny, 902 F.2d at 1125 n. 10. It is only in such cases that the savings clause precludes preemption; otherwise, the savings clause would tear down the “barriers against inconsistent state regulation that the preemption clause was written to erect.” Miranda v. Fridman, 276 N.J.Super. 20, 647 A.2d 167 (1994) (common law action claiming defect for failure to install lap belts preempted).

For example, the savings clause actually “saves” design defect claims arising out of an automobile manufacturer’s failure to install safety equipment not covered by the federal Safety Standards; in such cases, there is no conflict between state and federal law. See Freightliner Corp. v. Myrick, — U.S. —, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995) (claim regarding failure to install antilock brakes in tractor-trailers not preempted); Pokorny, supra (claim regarding failure to install window netting not preempted); Buzzard v. Roadrunner Trucking, Inc., 966 F.2d 777 (3d Cir.1992) (claim regarding additional truck illumination equipment not preempted); Swope v. STI Transit Co., 796 F.Supp. 160 (E.D.Pa.1992) (claim regarding failure to place reflective tape on trailer not preempted). The savings clause acts to prevent manufacturers from relying on their alleged compliance with federal standards as an affirmative defense to such lawsuits.

In addition, the savings clause preserves actions arising out of the defective design or installation of systems mandated by the federal Safety Standards. See Perry v. Mercedes Benz of North America, Inc., 957 F.2d 1257 (5th Cir.1992) (claim of defectively designed air bag system not preempted by Safety Act); Hyundai Motor Co. v. Phillip, 639 So.2d 1064 (Fla.Dist.Ct.App.1994), cert. denied, — U.S. —, 115 S.Ct. 901, 130 L.Ed.2d 785 (1995) (claim of defectively designed automatic belt system not preempted). See also Johnson v. General Motors Corp., 889 F.Supp. 451 (W.D.Okl.1995) (savings clause preserves actions relating to standards of care in exercise of options in federal Safety Standards). Contrary to appellees’ argument and the court’s statements in Gingold, the savings clause is not made ineffectual under our analysis, but rather serves the purpose of demonstrating that Congress did not intend to occupy the entire field of automobile safety.

We are not persuaded by appellee’s argument that the United States Supreme Court in Cipollone rejected the implied preemption analysis we employ. In considering the preemptive scope of the Smoking Act, the Supreme Court stated that its analysis was governed by the express language of the preemption clause in § 5 of the Act:

When Congress has considered the issue of pre-emption and has included in the enacted legislation a provision explicitly-addressing that issue, and when that provision provides a “reliable indicium of congressional intent with respect to state authority, ... there is no need to infer congressional intent to preempt state laws from the substantive provisions” of the legislation ... Congress’ enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond that reach are not pre-empted....

Cipollone, 505 U.S. at 517, 112 S.Ct. at 2618 (footnotes omitted). Nevertheless, the Cipollone Court held the challenged failure to warn action was expressly preempted by the Smoking Act’s preemption clause, and therefore implied preemption analysis never became an issue. Moreover, in this case, the apparent ambiguity between the Safety Act’s preemption and savings clauses indicates that Congress did not provide a “reliable indicium” of its intent on this issue, and therefore implied preemption remains a necessary component of the analysis. Pokorny, supra. This is particularly true where, as here, a common law action seeking damages for the failure to install air bags certainly would undermine the federal regulatory scheme that affirmatively establishes a range of permissible options for automobile manufacturers.

In any event, the Supreme Court itself has recently clarified its statements in Cipollone:

The fact that an express definition of the pre-emptive reach of a statute “implies” — ie. supports a reasonable inference — that Congress did not intend to pre-empt other matters does not mean that the express clause entirely forecloses any possibility of implied pre-emption ... Our subsequent decisions have not read Cipollone to obviate the need for analysis of an individual statute’s pre-emptive effects ... At best, Cipollone supports an inference that an express pre-emption analysis forecloses implied pre-emption; it does not establish a rule.

Freightliner Corp. v. Myrick, — U.S. at —, 115 S.Ct. at 1488, 131 L.Ed.2d at 393 (citations omitted). It is clear that the Supreme Court has not abandoned implied preemption analysis since Cipollone.

Implied preemption analysis clearly remains a viable tool for reaching our ultimate conclusion, and its application compels our- holding that Cellucci’s common law action for failure to install air bags is preempted by federal law. With this decision, we overrule our earlier decisions in Gingold and Heiple.

Reversed and remanded for entry of summary judgment on appellee’s air bag claim. Jurisdiction relinquished.

CAVANAUGH, CIRILLO, TAMILIA and HOFFMAN, JJ., join this opinion.

CIRILLO, J., files a concurring opinion in which CAVANAUGH and HOFFMAN, JJ., join.

DEL SOLE, J., files a dissenting opinion in which McEWEN and JOHNSON, JJ., join.

Before ROWLEY, President Judge, and CAVANAUGH, McEWEN, CIRILLO, DEL SOLE, BECK, TAMILIA, JOHNSON, and HOFFMAN, JJ.

CIRILLO, Judge,

concurring.

I join in the majority’s opinion today overruling this court’s decisions in Gingold and Heiple, adopting the Third Circuit Court’s decision in Pokomy, and concluding that Cellucci’s action against GM is impliedly preempted by the National Traffic and Motor Vehicle Safety Act of 1966. I write separately, however, to offer additional insight into the ramifications of appellee’s suggestion that there exists a product liability cause of action against General Motors based on the theory of defective design.

Cellucci, a passenger in a 1986 Chevrolet Cavalier equipped with three-point lap and shoulder harness safety belts, was injured when the car struck a tree. In his action against GM, Cellucci averred that the Cavalier was defectively designed because it lacked air bags. There is no dispute here that GM was in compliance with the federal safety standards; the phase-in requirement for air bags was not to begin until the 1987 model year. Cellucci argues, nonetheless, that the car was defectively designed because it did not come equipped with air bags.

The doctrine of preemption springs from the simple mandate that the “Constitution, and the Laws of the United States ... shall be the Supreme Law of the Land----” U.S. Const. art. VI, cl. 2. Chief Justice Marshall first stated the doctrine in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23 (1824):

The nullity of any act, inconsistent with the Constitution, is produced by the declaration, that the Constitution is the supreme law. The appropriate application of that part of the clause which confers the same supremacy on laws and treaties, is to such acts of the state legislatures as do not transcend their powers, but though enacted in the execution of acknowledged state powers, interfere with, or are contrary to, the laws of Congress, in pursuance of the Constitution, or some treaty made under the authority of the United States. In every case, the act of Congress, or the treaty, is supreme; and the law of the state, though enacted in the exercise of powers not controverted, must yield to it.

22 U.S. (9 Wheat.) at 210-11. A state action that “frustrate[s] the accomplishment and execution of the full purposes and objectives of Congress” may provide a basis for implied preemption, despite the absence of express preemption. Freightliner Corp. v. Myrick, — U.S. —, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995) (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941)).

Here, as the majority correctly notes, allowing a common law claim “in the face of specific federal safely standards would create an actual conflict between the federal and state law such that the state law is impliedly preempted.” Majority Opinion at p. 450. In 1986, manufacturers could choose from three safety options; air bags were not required. A state mandate would eliminate the element of choice which is clearly set forth in the federal Safety Standard 208. See 49 C.F.R. § 571.208 § 4.1.2.1, § 4.1.2.2, and § 4.1.2.3. See also Pokorny v. Ford Motor Co., 902 F.2d 1116, 1124-25 (3d Cir.1990), cert. denied 498 U.S. 853, 111 S.Ct. 147, 112 L.Ed.2d 113 (1990) (a common law rule cannot prohibit the exercise of a federally granted option). Cf. Wilson v. Pleasant, 660 N.E.2d 327 (Ind.1995) (applying traditional implied conflict preemption analysis, court found common law action in negligence for failure to install an airbag was not preempted by the Federal National Traffic and Motor Vehicle Safety Act of 1966).

In addition to offending preemption principles, allowing a common law action against General Motors creates the anomalous circumstance of punishing a manufacturer for complying with the federal safety standards. See Taylor v. General Motors Corporation, 875 F.2d 816, 827 (11th Cir.1989) (quoting Chicago & N.W. Trans. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 318, 101 S.Ct. 1124, 1130-31, 67 L.Ed.2d 258 (1981)). See also Pokorny, supra. Further, it lays the foundation for a patchwork of differing standards throughout the country, and frustrates the uniformity Congress sought in enacting the federal safety law. Compare Wood v. General Motors Corp., 865 F.2d 395, 412 (1st Cir.1988), cert. denied 494 U.S. 1065, 110 S.Ct. 1781, 108 L.Ed.2d 782 (1990)(finding Congress’ chosen method of increasing automobile safety was to establish uniform national safety standards) with Pokorny, supra (suggesting uniformity was not a primary goal of Congress in enacting the Safety Act).

Cellucci’s argument that the availability of the air bags placed upon GM the duty to incorporate them into the design of its car, regardless of the federal safety standards, discounts the consumer’s ability to “design” his or her car to meet a certain safety level beyond that required under federal law. In today’s market, the consumer is, in the sense of safety options, a designer. The consumer who wishes protection beyond that required by federal law can obtain that protection for a cost. Other safety options, such as side air bags, roll bars, steel cages, even bullet proof windows, are available and can be incorporated if the consumer is willing to pay a higher price.

Mere availability, however, is insufficient to create a cause of action in products liability. This defies the purpose and theory of product liability law, and reaches instead toward a theory of absolute liability. See Davis v. Berwind Corporation, 433 Pa.Super. 342, 352-54, 640 A.2d 1289, 1295 (1994), citing Azzarello v. Black Bros. Co., 480 Pa. 547, 551-55, 391 A.2d 1020, 1023 (1978); Ellis v. Chicago Bridge & Iron Co., 376 Pa.Super. 220, 225, 545 A.2d 906, 909 (1988); Dambacher by Dambacher v. Mallis, 336 Pa.Super. 22, 61, 485 A.2d 408, 429 (1984). When the National Highway Transportation Safety Administration determines that a safety feature is required, only then can we reasonably conclude that its exclusion supports a product liability action based on defective design.

Before ROWLEY, President Judge, CAVANAUGH, McEWEN, CIRILLO, DEL SOLE, BECK, TAMILIA, JOHNSON and HOFFMAN, JJ.

DEL SOLE, Judge,

dissenting.

Today the Majority, by its decision to shield automakers from our state’s liability laws, has taken the unenlightened approach, refusing to recognize the current trend, sanctioned by no less than the United States Supreme Court, which would allow plaintiffs claim to proceed.

The question presented to the court is whether under the terms of the National Traffic and Motor Vehicle Safety Act of 1966, 15 U.S.C. §§ 1381 et. seq. (the “Safety Act”), a common law cause of action against an auto manufacturer may be based upon the failure to install an airbag in a vehicle built before such safety equipment became federally mandated. A resolution of this issue is grounded on the language of the Act which must be examined to determine whether Congress has exercised its power to preempt state law. Such a determination can be made only by ascertaining “the intent of Congress.” California Federal Savings and Loan Association v. Guerra, 479 U.S. 272, 107 S.Ct. 683, 93 L.Ed.2d 613 (1987). It has been stated:

Congress is empowered to preempt state law by the Supremacy Clause, Art. VI, cl.2, of the United States Constitution---- Thus, preemption ‘is compelled [when] Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.’

Gingold v. Audi-NSU-Auto Union, A.G., 389 Pa.Super. 328, 338, 567 A.2d 312, 318 (1989). (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977)).

Two provisions of the Act are relevant to ascertain Congressional intent on this subject. They provide:

Whenever a Federal motor vehicle safety standard established under this subchapter is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item' of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard....

15 U.S.C. § 1392(d).

Also included is a provision referred to as a “savings clause.”

Compliance with any Federal motor vehicle safety standard issued under this subchapter does not exempt any person from any liability under common law.

15 U.S.C. § 1397(k).

The Majority, in reading these clauses together, found that Congress did not expressly preempt the “no air bag” claim made in this case. Majority slip opinion at 259. I agree with this conclusion. There is nothing expressly written in this statute which would evidence an unambiguous congressional intent to preempt state claims of this nature. Such clear language would be necessary to overcome the presumption which exists against preemption. Silkwood v. Kerr-McGee Corporation, 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984). It has been stated:

‘Consideration of issues arising under the Supremacy Clause starts with the assumption that the historic police powers of the States (are) not to be superseded by ... Federal Act unless that (is) the clear and manifest purpose of Congress.’ Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947).
Cipollone v. Liggett Group Inc., 505 U.S. 504, 515-16, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407 (1992).
Courts must tread cautiously in this arena because the authority to displace a sovereign state’s law is ‘an extraordinary power ... that we must assume Congress does not exercise lightly.’ Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 2400, 115 L.Ed.2d 410 (1991).

Mazaika v. Bank One, Columbus, N.A. 439 Pa.Super. 95, 653 A.2d 640, 644 (1994), (quoting Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 2400, 115 L.Ed.2d 410 (1991).

Thus, I do not hesitate to agree with the Majority’s conclusion that Congress has not, by the terms set forth in the Act, expressly preempted the type of claim made by plaintiff in this case. However, unlike the Majority, I do not conclude that the language of the Act is “ambiguous” making it necessary to determine whether Congress has by implication preempted this type of claim. In my view, a view which follows the lead of the United States Supreme Court in its recent action with respect to a New Hampshire case, the question of implied preemption cannot be reached because Congress has clearly and expressly preserved all common law claims.

The Supreme Court of New Hampshire in the case of Tebbetts v. Ford Motor Company, 140 N.H. 203, 665 A.2d 345 (1995) was also asked to consider whether to grant summary judgment to defendant-automaker and rule that the plaintiffs claim of defective design for failure to install an airbag was preempted. The court refused to grant this relief and reversed a lower court ruling holding that the plaintiffs “no airbag” claim was impliedly preempted. The United States Supreme Court on January 16, 1996, denied a Petition for Writ of Certiorari filed in this matter, and a petition for rehearing. Id., — U.S. —, 116 S.Ct. 773, 133 L.Ed.2d 726 (1996) .

In reaching its decision the Tebbetts court first looked to the United States Supreme Court’s decision in Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). The Tebbetts court, as well as my colleagues in the Majority cite to the same passage in the Cipollone decision:

When Congress has considered the issue of pre-emption and has included in the enacted legislation a provision explicitly addressing that issue, and when that provision provides a reliable indicium of congressional intent with respect to state authority, there is no need to infer congressional intent to pre-empt state laws from the substantive provisions of the legislation.

Cipollone, 505 U.S. at 517, 112 S.Ct. at 2618.

The Tebbetts court, however, determined that the Act did provide a “reliable indicium of congressional intent” and that the clear intent of Congress as expressed in the Act was to preserve not preempt common law causes of action. It remarked that “given the express utilization of the term ‘common law' in the savings clause, we agree with the analysis of those courts that have held that actions such as this are not preempted.” Tebbetts, 665 A.2d at 348. In support of this interpretation the court looked to the history of the Act. It stated:

Although the original Senate version of the proposed Safety Act contained no saving clause, the committee report noted that the compliance with federal standards would not preempt common law claims: ‘[T]he Federal minimum safety standards need not be interpreted as restricting State common law standards of care. Compliance with such standards would thus not necessarily shield any person from product liability at common law.’ S.Rep. No. 1301, 89th Cong., 2d Sess. 12 (1966), reprinted in 1966 U.S.C.C.A.N. 2709, 2720. The bill’s sponsor, Senator Warren Magnuson, commented: ‘Compliance with Federal standards would not necessarily shield any person from broad liability at the common law. The common law on product liability still remains as it was.’ 112 Cong. Rec. 14230 (1966).
An examination of the House committee report is equally instructive. By inserting the saving clause, the committee ‘intended ... that compliance with safety standards is not to be a defense or otherwise to affect the rights of parties under common law particularly those relating to warranty, contract, and tort liability,’ H.R.Rep. No. 1776, 89th Cong., 2d sess. 24 (1966).

665 A.2d at 347-48.

Like the court in Tebbetts, I too read the language of the Act as a clear and plain attempt by Congress to preserve, rather than preempt, common law claims. My position in this matter is strengthened by the recent action of the United States Supreme Court and its denial of certiorari in Tebbetts, where the issue at hand had been clearly defined and presented.

The Majority’s position is that the language set forth by the Supreme Court in Cipollone, which directs the court to refrain from inferring congressional intent where that intent is evident from the explicit provisions of the Act itself, is tempered by the Court’s later comments in Freightliner Corp. v. Myrick, — U.S. —, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995). Therein the Court wrote that Cipollone does not preclude an implied preemption analysis whenever there is a express preemption provision. The Court stated:

The fact that an express definition of the pre-emptive reach of a statute ‘implies’ — i.e. supports a reasonable inference— that Congress did not intend to pre-empt other matters does not mean that the express clause entirely forecloses any possibility of implied preemption.... At best, Cipollone supports an inference that an express pre-emption clause forecloses implied pre-emption; it does not establish a rule.

Freightliner Corp. v. Myrick, — U.S. at —, 115 S.Ct. at 1488, 131 L.Ed.2d at 393.

The Court’s statements in Myrick advise that an implied preemption analysis remains appropriate even where there is an express definition of pre-emption contained in the Act, whenever that language merely “implies” Congressional intent. The provisions of the Act in question do not leave open the question of what matters are and are not preempted. The savings clause found in the Safety Act explicitly preserves common law claims. Because this language provides more than a “rehable indicium” of Congressional intent and expressly states that compliance with safety standards does not exempt any person from liability under common law, an implied preemption analysis is inappropriate.

I also find it necessary to respond to three points raised in the concurring opinion. First, refusing to find pre-emption does not punish a manufacture for complying with federal safety standards. Rather, allowing a claim based on product defect, would hasten the goal of providing safe products for the public.

Second, suggesting that permitting this type of action would lay “the foundation for a patchwork of differing standards throughout the country” ignores the fact that throughout our history, each state has developed its own body of common-law. It is the nature of the Republic that states set individual standards for liability. The concurring opinion seems to be suggesting a federalized approach, to the detriment of the citizens of the individual states.

Third, while I agree that customers have the ability to select and pay for options, this argument ignores the issue, should this case be initially permitted to proceed. The availability of options has nothing to do with the question of pre-emption.

My review of the issue at hand causes me to concur with the statement of my colleague, the Honorable Kate Ford Elliott, in her opinion in Heiple v. C.R. Motors, Inc., 446 Pa.Super. 310, 666 A.2d 1066 (1995). Therein she stated “we find a clear statement by Congress that common law causes of action are not in conflict with the goals and purposes of the Safety Act. Therefore, we are precluded from finding such a conflict by implication.” 446 Pa.Super. at 351, 666 A.2d 1066. In closing she cites to a passage from the decision of this court in Gingold v. Audi-NSU-Auto Union, A.G., supra., which I too find compelling:

A finding of no federal preemption [of state law causes of action] merely allows [plaintiff] to raise [his] passive restraint claims at trial. This by no means insures that [he] will prevail. It is not inconceivable that a jury could reject the claims ... [T]he only issue before us is whether Congress intended that such issues go before juries. It did. Congress articulated this intent in section 1397[k]....
... Tort actions can lead to greater insights into the inherent hazards or shortcomings of existing occupant restraint systems and test the public’s acceptance of new systems through jury verdicts. Moreover, ‘the specter of damages actions may provide manufacturers with added dynamic incentives to continue to keep abreast of all possible injuries stemming from the use of their product so as to forestall such actions through product improvement.’ ... Viewed in this manner, section 1397[k] is in complete harmony with the purpose of the Act as set forth in section 1381.
Gingold, supra at 54-55, 360, 567 A.2d at 326, 329 (citations omitted).

Heiple v. C.R. Motors, Inc., 666 A.2d at 1086-7.

For the above reasons I would find that plaintiffs “no air bag” claim is not preempted by federal law, and, therefore, I dissent from the Majority’s ruling. See also the recent decision of the Commonwealth Court following the reasoning in Heiple, Muntz v. Commonwealth of Pennsylvania, 674 A.2d 328 (Pa.Cmwlth.1996).

      . We recognize that we are not bound by the decisions of federal intermediate appellate court panels. Cianfrani v. Johns-Manville Corp., 334 Pa.Super. 1, 482 A.2d 1049, 1051 (1984); Breckline v. Metropolitan Life Ins. Co., 406 Pa. 573, 178 A.2d 748 (1962). Nonetheless, where the Third Circuit has spoken on a federal issue, the ultimate answer to which has not yet been provided by the United States Supreme Court, it is appropriate that we follow the Third Circuit decision. Nobers v. Crucible, Inc., 431 Pa.Super. 398, 636 A.2d 1146 (1994). See also Com. v. Negri, 419 Pa. 117, 122, 213 A.2d 670 (1965) (Third Circuit's decision on federal question should be followed in Pennsylvania so that individuals do not improperly "walk across the street” to gain a different result); Murtagh v. County of Berks, 535 Pa. 50, 634 A.2d 179 (1993) (same). Because the Pokomy case involves the identical question raised here, we find its holding to be particularly compelling.

      . An appeal from the denial of summaiy judgment ordinarily is interlocutory and not appealable. However in this case, the trial court included in its order denying summary judgment a statement that the order involved a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter. The case was thereby certified for interlocutory appeal by permission in accordance with Pa.R.App.P. 1311 and 42 Pa.C.S. § 702(b). This court granted GM’s Petition for Permission to Appeal on May 19, 1994.

      . Filing a brief on behalf of GM as amicus curiae was Product Liability Advisory Council, Inc.

      . Filing amicus briefs on behalf of Cellueci were Trial Lawyers for Public Justice, Public Citizen, Center for Auto Safety, Motor Voters, and the Pennsylvania Trial Lawyers.

      . The Safety Act recently was recodified so all “laws related to transportation [appear] in one comprehensive title," and was moved from Title 15 to Title 49 of the United States Code. H. Rep. No. 103-108, 103rd Cong., 2d Sess. 3 (1994), reprinted in 1994 U.S.C.C.A.N. 818, 820. There were some “technical improvements” to the language to promote “clarity” and "consistency,” and avoid “surplusage”; precautions were taken against "making substantive changes in the law.” Id. The substance of Section 1392(d) now appears as 49 U.S.C. § 30103(b):
      (b) Preemption.—

        (1) When a motor vehicle safety standard is in effect under this chapter, a State or political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter. However, the United States Government, a State, or a political subdivision of a State may prescribe a standard for a motor vehicle or motor vehicle equipment obtained for its own use that imposes a higher performance requirement than that required by the otherwise applicable standard of this chapter.
      (2) A state may enforce a standard that is identical to a standard prescribed under this chapter.
      49 U.S.C. § 301003(b). The preemption case law we discuss refers to the Safety Act’s provisions as previously codified in Title 15 and we continue to do so here in order to avoid confusion.

      . Section 1397(k) also was recodified at 49 U.S.C. § 30103(e) as follows:
      (e) Common law liability. — Compliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law.

      . In 1974, during the course of a failed attempt to enact certain additional requirements, including an ignition interlock system designed not to allow the operator to start the engine without first putting on seat belts, which provoked great public opposition, Congress enacted the following measure:
      (1) No Federal motor vehicle safety standard may—
      (A) have the effect of requiring, or
      (B) provide that a manufacturer is permitted to comply with such standard by means of any continuous buzzer designed to indicate that safety belts are not in use, or any safety belt interlock system.
      (2) Except as otherwise provided in paragraph (3), no Federal motor vehicle safety standard respecting occupant restraint systems may—
      (A) have the effect of requiring, or
      (B) provide that the manufacturer is permitted to comply with such standard by means of an occupant restraint system other than a belt system ...
      15 U.S.C. § 1410(b). Such additional requirements could be enacted only after the measures had been submitted to both houses of Congress and not disapproved by them. § 1410(b)(3).

      . As previously noted, federal preemption may also be implied through the legislative occupation of an entire field, or "field preemption.” Schneidewind, supra. Because we decide that the common law claim at issue here is impliedly preempted based upon an actual conflict, under "conflict preemption,” we need not address the question of whether Congress intended with the Safety Act to occupy the entire field of motor vehicle safety. As is discussed infra, however, the Safety Act should not be interpreted so broadly, especially in light of the many types of equipment not covered by the relevant standards. At least one purpose of the savings clause was to preserve common law actions in areas that had not been the subject of Safety Standards, in contrast to air bags. See infra at 450-454; Pokorny, supra at 1122.

      . The Court declined to find preemption of the plaintiff's other causes of action, including breach of warranty, fraudulent misrepresentation, and conspiracy to conceal material facts. Cipollone, supra.

      . We note the Supreme Court’s recent action in vacating the decision in Hernandez-Gomez v. Leonardo, 180 Ariz. 297, 884 P.2d 183 (1994). There, the Arizona Supreme Court had refused to engage in an implied preemption analysis in a common law action for failure to install lap belts, holding that Cipollone precluded it. The United States Supreme Court granted certiorari, vacated the decision, and remanded the case “for further consideration in light of” Myrick, supra. Volkswagen of America, Inc. v. Hemandez-Gomez, — U.S. —, 115 S.Ct. 1819, 131 L.Ed.2d 742 (1995).


source: Caselaw Access Project

author: POPOVICH, Judge.

license: Public Domain

text:
    676 A.2d 266
    COMMONWEALTH of Pennsylvania, Appellee, v. Michael H. WILKES, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 26, 1996.
    Filed May 9, 1996.

      James F. Geddes, Jr., Wilkes-Barre, for appellant.
    Peter Paul Olszewski, Jr., Dist. Atty., Wilkes-Barre, Melissa A. Berlot, Asst. Dist. Atty., Nanticoke, for appellee.
    Before McEWEN, President Judge, CIRILLO, President Judge Emeritus, and CAVANAUGH, DEL SOLE, BECK, TAMILIA, POPOVICH, JOHNSON and HUDOCK, JJ., en banc.
   POPOVICH, Judge.

In the present appeal, we are asked to review the decision of the Court of Common Pleas of Luzerne County wherein the court determined that the evidence was sufficient to sustain appellant’s convictions for theft by unlawful taking and theft by deception. 18 Pa.C.S.A. §§ 3921, 3922. Upon review, we disagree with the trial court’s conclusions. Rather, we find the present facts, when viewed in a light most favorable to the Commonwealth as verdict winner, reveal nothing more than a business transaction which went awry, and we are convinced that appellant did not possess the necessary mens rea to commit either crime. Nothing in the record justifies the use of criminal prosecution to collect a simple business debt.

“The test of the sufficiency of the evidence in a criminal case is whether, viewing the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences in the Commonwealth’s favor, there is sufficient evidence to enable the trier of fact to find every element of the [crime] charged beyond a reasonable doubt.” Commonwealth v. Carter, 329 Pa.Super. 490, 495-96, 478 A.2d 1286, 1288 (1984); Commonwealth v. Peduzzi, 338 Pa.Super. 551, 553-55, 488 A.2d 29, 31-32 (1985). Applying the foregoing standard, the record reveals the following:

Appellant, a New York resident, operated a business called European Automobiles, Inc. His company was engaged in the import and export of European automobile components, chemicals and related products. In August of 1993, appellant received an order for a large quantity of Castrol motor oil from an overseas client. In attempting to fill the order, appellant contacted A & A Auto Parts Stores, Inc., in Luzerne County. A & A indicated that it could fill the order, and appellant “faxed” Patrick Judge, A & A’s general manager, a purchase order for 1200 cases of Castrol 10W-40 motor oil with twelve quarts per case. The price was $1.26 per quart which amounted to $18,144.00, to be paid upon delivery. It is significant to note that the purchase order also indicated that appellant required the oil to be from new stock with the current National Football League advertising program. N.T., 4/15/94, p. 21.

On August 19, 1993, appellant then dispatched a truck to A & A’s warehouse to pick up the oil, and appellant drove to A & A’s headquarters. Once there, appellant issued a check for $ 18,144.00 to Brian Durkin, assistant manager of the Moosic A & A Auto Parts store in exchange for 1,200 cases of Castrol motor oil. At time the check was issued, appellant had approximately $ 28,000.00 in the account upon which the check was drawn. N.T., 4/15/94, pp. 84, 100. The cases of oil were then loaded onto the cargo container. During the loading process, appellant noticed that the cartons of oil were embossed with an expired N.F.L. promotion, rather than the current N.F.L. advertising program as requested. Appellant discussed the problem with Mr. Durkin, and, although no resolution of the problem was reached because Mr. Judge was unavailable, appellant accepted the oil. The motor oil was loaded onto a cargo freighter and shipped to Croatia the following morning.

Appellant attempted to contact Mr. Judge over the weekend in order to negotiate a reduction in the price of the oil because of the expired promotion on the Castrol oil cartons. On Monday, August 23, 1993, appellant and Mr. Judge discussed his problem with the oil and appellant demanded a reduction in the price of the oil because of the out-dated promotion. He thought the lack of the current N.F.L. advertising program on the carton reduced the value of the order by as much as $4,500.00. After a number of telephone conversations with appellant concerning the matter, Mr. Judge offered various alternatives, including return of the oil, coupons for the current or up-coming Castrol promotion or a nominal discount. N.T., 4/15/94, pp. 110-111. However, the alternatives offered by Mr. Judge were unacceptable to appellant since the product had already been shipped to Croatia and the oil cases did not bear the current N.F.L. promotion as specified in the purchase order. N.T., 4/15/94, pp. 107,110.

Appellant testified that he stopped payment on the check on August 25, 1993, upon advice of counsel after appellant and A & A were unable to reach an agreement regarding a reduction in the price of the oil. N.T., 4/15/94, p. 109. Significantly, at the time appellant stopped payment on the check, over $26,-000.00 remained in the bank account upon which the check was drawn. N.T., 4/15/94, p. 109. Further, both Mr. Judge of A & A and appellant testified that they had extensive negotiations in an attempt to settle their dispute over the value of the oil. However, those negotiations ended when Mr. Judge contacted the authorities, and the Luzerne County District Attorney’s Office filed a criminal complaint against appellant for the charges sub judice.

Turning now to the merits of appellant’s challenge to the sufficiency of the evidence, we cite to the Crimes Code which defines theft by unlawful taking or disposition as follows: “A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof.” 18 Pa.C.S.A. § 3921(a). To be convicted of theft by unlawful taking, appellant must have had a conscious intention to take unlawfully the property of A & A Auto Parts Stores, Inc., for the purposes of depriving it thereof. See, Commonwealth v. Dombrauskas, 274 Pa.Super. 452, 418 A.2d 493 (1980); 18 Pa.C.S.A. § 3921(a).

The Crimes Code defines theft by deception, in pertinent part, as follows: “A person is guilty of theft if he intentionally obtains or withholds property of another by deception. A person deceives if he intentionally: (1) creates or reinforces a false impression, including false impression as to law, value, intention or other state of mind; but deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise.” Thus, to be convicted of theft by deception, appellant needed to obtain the property of A & A by deception, intending not to pay for it. See, Commonwealth v. Bruce, 414 Pa.Super. 419, 607 A.2d 294 (1992); 18 Pa.C.S.A § 3922(a). Significantly, we cannot infer that appellant did not intend to pay for the motor oil at the time he took possession of the oil from the fact that he subsequently refused to pay for the oil. 18 Pa.C.S.A § 3922(a)(1); Brace, supra.

Insight into the analysis of whether appellant did not intend to pay for the motor oil at the time he took possession of the shipment is found in Commonwealth v. Bruce, 414 Pa.Super. 419, 607 A.2d 294 (1992). Therein, the defendant, a broker-wholesaler of lumber, was engaged in a series of business transactions with Steven Ongley, the owner of a sawmill. During their business relationship, the defendant failed to pay for several lumber shipments. Ongley then refused to supply any more lumber, and the defendant transferred his interest in a lumber mill to Ongley in lieu of cash payment. Ongley then supplied an additional thirteen loads of lumber to the defendant without advance payment. Again, the defendant failed to pay for the lumber shipments. Eventually, he did issue a check for three of the loads, but the check was returned by the bank due to insufficient funds. While the defendant subsequently satisfied the “bad” check, he did not pay for the remaining ten loads of lumber. In the end, the defendant owed Ongley approximately $47,000.00.

After several months of negotiations to settle the debt, the defendant was charged with and convicted of theft of the lumber by deception. During their business relations, the defendant represented to Ongley that he was late in his payments because his buyers were not paying him on time. However, at trial, it was clearly established that the defendant sold 90 % of the lumber to a single purchaser who always provided prompt payment, and the defendant was actually using those monies to pay other creditors.

Upon review of the facts, we found that the evidence was insufficient to convict the defendant of theft (of lumber) by deception because there was no evidence that, at the time of the transactions, the defendant did not intend to pay for the lumber. Further, we held that the defendant’s intention not to pay for the lumber at the time he received it could not be inferred from the fact alone that he did not subsequently pay for it. Bruce, 607 A.2d at 297. Specifically, we stated:

The record also reveals that the parties entered into extensive negotiations to settle the balance due on the lumber shipments delivered after September 6, 1988, and only after the negotiations failed to bear fruit did Ongley file a private criminal complaint. At no time during their relationship did appellant conceal his whereabouts or true identity from Ongley.

Bruce, 607 A.2d at 297.

Finally, we stated: “Clearly, this case represents nothing more than a failed business relationship and is properly the subject of a civil suit, not criminal action.” Bruce, 607 A.2d at 297.

In the present case, the Commonwealth’s allegations were essentially the same with respect to both theft charges, i.e., that at the time appellant took possession of the oil, he had no intention to pay A & A Auto Parts for the 1200 cases of motor oil. The Commonwealth cites to the fact that, despite A & A’s offer of various alternatives to settle this matter, appellant nevertheless stopped payment on the check, and the parties were unable to reach a settlement.

However, upon review, we conclude that the evidence fails to demonstrate that appellant took the oil with the intention of depriving A & A of it or that appellant obtained the oil by deception, intending not to pay A & A. Undisputed testimony revealed that appellant issued A & A a “good” check for the full purchase price of the oil. Further, appellant did not stop payment on that check until after several days of negotiations with A & A regarding a reduction in the price of the oil had produced no agreement. Significantly, at the time appellant stopped payment on the check, the account had more than sufficient funds to satisfy the instrument.

The fact that appellant and A & A were unable to reach an amicable settlement to their dispute over the value of the oil does not prove that appellant never intended to remit the value of the oil. Clearly, appellant had the necessary funds to pay for the oil, and at no time during their business transaction did appellant conceal his whereabouts or his true identity. Simply put, there is absolutely no reason why a civil action could not adequately insure full compensation to A & A Auto Parts Stores.

In sum, we are convinced that the present facts reveal nothing more than a business transaction which went awry, and we find nothing in the record which justifies the use of criminal prosecution to collect a simple business debt. Accordingly, we reverse appellant’s conviction for theft by unlawful taking and theft by deception. Cf., Bruce, supra.

Judgments of sentence vacated. Jurisdiction relinquished.

      . Appellant also questions: 1) Did the jury improperly disregard the Court’s instructions on the essential element of intent; 2) Did the lower court improperly deny appellant’s pre-trial motions; 3) Did the lower court improperly deny appellant’s demurrer and motion for directed verdict; 4) Did the lower court improperly admit Commonwealth exhibits nos. 2, 3, 4 and 5 over objection; and 5) Did the lower court improperly deny appellant’s requested points for charge nos. 1 and 9? Given our resolution of appellant’s challenge to the sufficiency of the evidence, we need not address the remaining issues.


author: HESTER, Judge.

text:
    676 A.2d 270
    Paul S. KARPIAK and Connie A. Karpiak, his wife; Francis Bodnar and Judith Bodnar, his wife; Andrew J. Tomko and Lucille A. Tomko, his wife; James A. Werley, Jr., and Barbara A. Werley, his wife, Appellants, v. J.S. RUSSO and Patricia Russo, t/d/b/a Plum Boro Supply Company; J.S. Russo, t/d/b/a J.S. Russo Construction Company; The Dixie Corporation; and J.S. Russo and Patricia Russo, individually.
    Superior Court of Pennsylvania.
    Argued Feb. 8, 1996.
    Filed May 10, 1996.

      Roy E. Leonard, Pittsburgh, for appellants.
    Frank W. Jones, Pittsburgh, for appellee.
    Before JOHNSON, FORD, ELLIOTT and HESTER, JJ.
   HESTER, Judge.

Appellants, Paul and Connie Karpiak, Francis and Judith Bodnar, Andrew and Lucille Tomko, and James and Barbara Werley, appeal the September 12,1995 order wherein the trial court refused to lift a compulsory nonsuit entered at trial. This action involves allegations of nuisance, trespass, violation of the zoning laws and was instituted against appellees, J.S. and Patricia Russo, Plum Boro Supply Company J.S. Russo Construction Company, and The Dixie Corporation, as the result of their operation of a landscaping supply business on Saltsburg Road in Plum Borough. We affirm.

This action was instituted by home-owners who live near appellees’ landscaping supply business. Appellants claimed that the business was a public and private nuisance, constituted a trespass against their property, and violated the local zoning laws. They also requested punitive damages. Since 1984, appellees have been in the business of selling topsoil, shredded bark, compost, sand, and river rock at the intersection of Saltsburg Road and Willow Village Drive, where appellants reside or resided. Saltsburg Road is traveled heavily with trucks, buses, and many cars. Reproduced Record (“R.R.”) at 69a, 397a-98a.

Appellants requested a preliminary injunction which was granted in part. The case proceeded to trial as to appellants’ request for a permanent injunction and damages. Before trial, the court ruled that the case would proceed only as to the counts of private and public nuisance and that proof regarding damages would be limited to appellants’ out-of-pocket expenses.

After appellants’ evidence regarding nuisance was present ed, the trial court granted appellees’ motion for a compulsory nonsuit and dismissed the jury. This appeal followed denial of post-trial motions.

The following transpired at the hearing on the preliminary injunction. William A. Berchick, Jr., a zoning officer for Plum Borough, testified that appellees’ business is located in an area zoned as “regional commercial.” R.R. at 23a. Other businesses along Saltsburg Road include banks, funeral homes, a flower, shop, an electronics( store, a beauty shop, an insurance agent’s office, and a doctor’s office. There also is another landscaping supply business on Saltsburg Road.

The zoning ordinance was changed in Plum Borough in 1993; appellees established their landscaping supply business in 1984. Prior to 1993, under the applicable zoning ordinance enacted in 1947, appellees’ property was zoned as “business.” Id. at 31. With the 1993 changes, the zoning of Willow Village Drive was changed to residential; however, as noted, appellees’ land remained zoned as regional commercial.

Mr. Berchick testified that appellees’ business was in conformity with the 1947 ordinance. Mr. Berchick also opined that since the landscaping business had been in operation when the 1993 ordinance was passed, the business did not violate the 1993 ordinance. This testimony was inconsistent with a deposition given by Mr. Berchick wherein he stated that he was not able to state an opinion as to whether the landscaping business violated the 1947 zoning ordinance.

Appellants’ expert zoning witness, Victor Delle Donne, testified that the landscaping business violated the 1993 ordinance. He also examined the 1947 ordinance, explaining that the 1947 ordinance classified appellees’ business as a “B” classification. B classification had a list of permitted uses and a list of prohibited uses. Appellees’ use was not listed as a permitted use, but it also was not listed as a prohibited use. The use simply is not covered in the 1947 ordinance. He did opine, however, that since the use is not listed as a permitted use in the 1947 ordinance, it was an illegal use under that ordinance.

It was established at the hearing on the preliminary injunction that no action had been taken by Plum Borough against appellees for their use of the land as a landscaping business in the eight years that lapsed between the inception of their business and the lawsuit at issue herein.

After Mr. Tomko described appellees’ activities on the property and the effect of those activities, the trial court issued an order denying a preliminary injunction but placing some restrictions on the hours that appellees were permitted to operate and ordering them to install concrete pads under manure piles. The case proceeded to a jury trial.

Prior to the start of trial, the trial court made certain rulings, which will be discussed in more detail as we decide the issues presented on appeal, and the case proceeded before the jury solely on the issues of whether appellees’ activities constituted a public or private nuisance and whether punitive damages could be imposed. After the close of evidence, the trial court issued an order granting appellees’ motion to dismiss the punitive damages claim and motion for compulsory nonsuit as to the private and public nuisance claims.

Appellants first contend that their evidence was sufficient to go to the jury on the tort of public nuisance. In Waschak v. Moffat, 379 Pa. 441, 109 A.2d 310 (1954), our Supreme Court adopted Restatement of Torts § 822 as the law of Pennsylvania. In Kembel v. Schlegel, 329 Pa.Super. 159, 478 A.2d 11 (1984), we ruled that the successor section in the Restatement (Second) of Torts § 822 contained the authoritative definition of the tort of private nuisance. Section 822 provides:

§ 822. General Rule
One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion is either
(a) intentional and unreasonable, or
(b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.

The Restatement indicates that a defendant is not subject to liability for an invasion unless the invasion caused significant harm, which is defined as:

§ 821F. Significant Harm
There is liability for a nuisance only to those to whom it causes significant harm, of a kind that would be suffered by a normal person in the community or by property in normal condition and used for a normal purpose.

Comment C to section 821F further explains the meaning of significant harm:

c. Significant harm. By significant harm is meant harm of importance, involving more than slight inconvenience or petty annoyance. The law does not concern itself with trifles, and therefore there must be a real and appreciable invasion of the plaintiffs interests before he can have an action for either a public or private nuisance____ [I]n the case of a private nuisance, there must be a real and appreciable interference with the plaintiffs use or enjoyment of his land before he can have a cause of action.
When [the invasion] involves only personal discomfort or annoyance, it is sometimes difficult to determine whether the invasion is significant. The standard for the determination of significant character is the standard of normal persons or property in the particular locality. If normal persons living in the community would regard the invasion in question as definitely offensive, seriously annoying or intolerable, then the invasion is significant.

Herein, the trial court concluded that while appellees’ actions may have been annoying and a cause of inconvenience, as a matter of law, appellants failed to establish that the invasion was seriously annoying or intolerable. We agree.

Appellants’ testimony was fairly consistent and may be summarized as follows. Appellees’ business is located on a portion of Saltsburg Road which includes other businesses, a bank, a funeral home, a flower shop, an electronics store, and an insurance office. Appellees sell topsoil, river rock, mushroom manure, limestone, gravels, shredded bark, mulch, and sand from their property. Their hours of operation are from approximately 8:00 a.m. until 4:00 p.m. or 5:00 p.m. Monday through Saturday. Occasionally, they operate on Sunday. The business is seasonal, is closed in the winter, and is not as heavy in summer as in spring and fall. The various products are loaded onto trucks with backhoes and payloaders. Thus, noisy machinery operates weekdays and Saturdays. In addition, foul odors emanate from the manure and decaying mulch. Finally, dust from bark, limestone and topsoil continuously blows onto appellants’ property.

Appellant Tomko, admitted that there are several other commercial establishments at or near the intersection of Salts-burg Road and Willow Village Drive, including a funeral home, a bank, a flower shop, and an electronics store. There also is an American Legion Club and a swimming pool in the area. Mr. Tomko works weekdays from 7:30 a.m. until 4:00 p.m., Monday through Friday, and the only damages he has incurred from appellees’ business are expenses for cleaning his car, his house, and outside furniture. When Mr. Tomko returns from work, the business is closed. Further, the business is closed for months each year. His chief complaint is the loud banging of truck tailgates, but he acknowledged that the banging occurs perhaps three or four times a day. Mr. Tomko also stated that borough officials have not taken any action with respect to the business even though he and other appellants attended five or six council meetings between 1984 and 1993.

Charles and Laurel Balentine testified that they moved into a home at 106 Willow Village Drive in January, 1993, and moved out in March, 1994. They complained of smell, noise, and dust, but acknowledged that at times, there is no activity whatsoever on appellees’ property. Rosabelle Skinner lives nine houses from appellees’ business. She can hear appellees’ equipment but also admitted that there is heavy traffic on Saltsburg Road, including trucks and buses that can be heard at her home.

James A. Werley, Jr. testified that he lived at 106 Willow Village Drive, across the street from appellees’ business, until January, 1993. He also complained about dust and noise. However, he was a car salesman and worked during the typical work hours that appellees are open for business.

Paul S. Karpiak testified that he works on most weekdays. There are two days a week, usually Thursday or Friday, when he does not go to work until noon. He has spoken informally with borough officials, including councilmen, the borough manager and the borough solicitor, regarding the problem. However, no official of the Borough of Plum has ever taken any action in response to appellants’ requests. He also testified that appellees’ business was not open on Sundays and that he rarely hears noise after 4:00 p.m. the remaining days. He agreed that the traffic on Saltsburg Road was very heavy and that there were other businesses in the area.

Judith Ann Bodnar indicated that Saltsburg Road was travelled heavily and that typically, she is not home during the working day. Mrs. Bodnar saw one rat come from appellees’ property.

It also is significant that none of appellants testified as to any damages they have incurred as a result of the conduct of the appellees’ business. Other than Mr. Tomko, who testified that he had to clean his car, house, windows, and outside furniture, there was no evidence that appellees’ business caused any damage to appellants’ properties.

In light of this evidence, the trial court’s decision clearly was correct. Dust and noise are the two intrusions complained about by appellants. The noise, meanwhile, is during daylight hours and occurs, for the most part, when all but one appellant is at work. Compare Anderson v. Guerrein Sky-Way Amusement Co., 346 Pa. 80, 29 A.2d 682 (1943)(fifty-four plaintiffs brought action against drive-in theatre which operated with bright lights and loud noise inconsistent with the residential character of the neighborhood and prevented plaintiffs from sleeping). Furthermore, this noise is not out of character with the area since appellants admitted that Salts-burg Road is traveled heavily with trucks, buses, and cars, which make the same noises as appellees’ machinery which consists of backhoes, loaders, and trucks. Compare Bedminster Township v. Vargo Dragway, Inc., 434 Pa. 100, 253 A.2d 659 (1969) (noise from drag cars could be heard three miles away in this residential and farming community, and people who lived one mile away could not hear themselves talk and had their windows rattle from the noise).

In Molony v. Pounds, 361 Pa. 498, 64 A.2d 802 (1949), our Supreme Court reversed the issuance of an injunction against a restaurant. The injunction was issued from the hours of 1:00 a.m. to 6:00 a.m. because the restaurant emanated noise and foul odors. The Court noted that no one is entitled to absolute quiet in the enjoyment of their property and that all that is required is that the degree of quietness be consistent with the standard of comfort in the relevant locality. The Court opined that people who reside in a neighborhood with businesses close by must compromise their comfort to the commercial necessities of the business.

Herein, appellees’ property unquestionably was zoned business when they started selling landscaping supplies. While other businesses in the area are largely office buildings, the evidence establishes that Saltsburg Road is traveled heavily and is noisy during the same hours when appellees operate their business. Saltsburg Road is busy with vehicular traffic and appellees’ noise is from vehicles.

Now we address whether the dust is sufficient to constitute a nuisance. We note that this dust all emanates from benign natural substances. These substances are topsoil, rock, sand, and vegetable manure. Further, the dust is neither poisonous nor harmful. We also note no one testified that the dust causes physical ailments such as dizziness, headaches, and vomiting.

Therefore, appellants’ attempt to equate this case with that of Evans v. Moffat, 192 Pa.Super. 204, 160 A.2d 465 (1960), is unconvincing. In Evans, plaintiffs suffered physical symptoms of headaches, nausea, and dizziness from defendant’s release of noxious, poisonous, and foul-smelling gases emanating from a mine refuse dump.

The production of a sufficient amount of dust from a business can constitute a nuisance as long as the dust causes significant harm to the aggrieved party. Harford PennCann Service, Inc. v. Zymblosky, 378 Pa.Super. 578, 549 A.2d 208 (1988). Herein, the dust created does not rise to that level. There was no evidence that the dust caused appellants health problems or that it affected their ability to carry on their daily activities. This can be contrasted to the situation present in Harford, where the business generated such a vast amount of dust that the trial court issued an injunction based on a finding that the plaintiffs experienced health problems and lost business due it.

Since appellants failed to establish the existence of a private nuisance, it necessarily follows that they are not entitled to damages for public nuisance as requested at pages twenty-two through twenty-five of their brief. It also follows that they have failed to establish the existence of a public nuisance since appellants admit that a public nuisance does not exist unless a nuisance exists and affects the community at large and not merely the complaining parties. See Appellants’ brief at 17.

Appellants next claim that the trial court erred in granting a nonsuit as to their claim for punitive damages. In accordance with Kirkbride v. Lisbon Contractors, Inc., 521 Pa. 97, 555 A.2d 800 (1989), we look to Restatement (Second) of Torts section 908(2) for our standard in determining whether punitive damages may be awarded:

(2) Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the defendant’s act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant.

Restatement (Second) of Torts § 908(2). Appellees’ conduct in engaging in a legitimate business can hardly be viewed as evil, outrageous, or indifferent. This claim therefore fails.

Appellants also charge the trial court with error in dismissing their trespass claim, arguing that the evidence established a cause of action for trespass pursuant to Restatement (Second) of Torts § 165:

§ 165. Liability for Intrusions Resulting From Reckless or Negligent Conduct and Abnormally Dangerous Activities
One who recklessly or negligently, or as a result of an abnormally dangerous activity, enters land in the possession of another or causes a thing or third person so to enter is subject to liability to the possessor if, but only if, his presence or the presence of the thing or the third person upon the land causes harm to the land, to the possessor, or to a thing or a third person in whose security the possessor has a legally protected interest.

Appellants state that the airborne dust constituted an “entry” onto their land. However, we need not address this claim, which is whether dust is sufficient enough of a particle to constitute a trespass, since the evidence failed to establish that the dust caused appellants harm. There was no evidence that appellants suffered ailments from the dust nor was there evidence that the dust caused any corrosive damage to their property. Hence, the trial court correctly dismissed this cause of action prior to trial.

Next, appellants claim they were entitled to maintain a private action for violation of the zoning ordinance pursuant to 53 P.S. § 10617, which states that a private action for a zoning violation may be maintained if the municipality has been given thirty days notice that the action will be maintained before the action is instituted. The trial court observed that appellants failed to give the thirty-day prior notice to the municipality of this action and that its dismissal of the count regarding zoning violations rested on this ground. Appellants fail to refute this finding of fact, see appellants’ brief at 29-32; thus we affirm. Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984) (the appellant has the burden to demonstrate the trial court’s decree is erroneous due to the evidence or the law).

Appellants’ final contention is that the trial court improperly considered evidence from the preliminary hearing in granting the nonsuit. A reading of the trial court opinion in this matter clearly demonstrates the inaccuracy of this assertion as that opinion establishes that the court relied upon nothing other than the evidence at trial in supporting its decision to dismiss this action.

Order affirmed.

      . In this portion of their brief, appellants refer us to case law which does not address the issue of whether ex post facto notice of a judicial proceeding fulfills a statutory requirement that a priori notice be given.


author: OLSZEWSKI, Judge:

text:
    676 A.2d 662
    COMMONWEALTH of Pennsylvania v. Robert Arthur MYERS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 10, 1995.
    Filed March 26, 1996.
    Reargument Denied June 11, 1996.

      Donald E. Lewis, Meadville, for appellant.
    Mark D. Waitlevertch, Assistant District Attorney, Mead-ville, for the Commonwealth, appellee.
    Before CIRILLO, POPOVICH and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

Once again, we are called upon to determine whether a defendant’s comments were “oral communications” within the Wire-tapping and Electronic Surveillance Control Act (Act), 18 Pa.C.S.A. § 5701, et seq. Finding that such comments were properly within the Act, we reverse and remand for retrial.

On October 1, 1993, Larry Whitmore met with Pennsylvania State Trooper Danny Lloyd concerning two 1989 robberies of a Ponderosa steakhouse. After implicating appellant Robert Arthur Myers in these crimes, Whitmore consented to wearing an electronic recording device on his body while attempting to elicit incriminating statements from Myers. Further, Whit-more agreed that his encounter with Myers would take place on October 14,1993.

On the date of the encounter, Whitmore, who had been fitted with a body recorder and transmitter, travelled to Myers’ home, which was on a large isolated plot of land. What transpired next is best summarized by the trial court:

[Whitmore] found [Myers] not at home and walked from [Myers’] home to his parents’ residence up the road. Before he got to [Myers’] parents’ residence, [Myers] came out to greet him and they walked back to [Myers’] residence.
During the course of a subsequent approximately 15 minute conversation, [Myers] made statements that could constitute inculpatory evidence with respect to the current prosecution.
Whitmore had been instructed that he should not engage in conversation that might be incriminating to [Myers] while in [Myers’] residence. Accordingly, once Whitmore and [Myers] arrived at [Myers’] trailer, [Myers] went inside and apparently sat on a couch and Whitmore attempted to stay out of the trailer and talk to [Myers] from a porch adjoining the trailer. Whitmore did indicate on one occasion he went in briefly to get a beer from the refrigerator and then returned to the porch area. He further testified that during their conversation there was no screen door in place and the door to the trailer was left open and the couch on which the defendant was seated was about two feet to the left of the door.

Opinion, 10/26/94 at 3-4.

On November 12, 1993, the Pennsylvania State Police filed charges against Myers concerning the steakhouse robberies. Subsequently, Myers filed a motion to suppress the tape which Whitmore’s body recorder had produced. Said motion was denied by the trial court, and, consequently, the Commonwealth introduced the tape into evidence at Myers’ jury trial. Ultimately, the jury found Myers’ guilty on two counts of robbery, for which he was later sentenced to 10-to-30 years imprisonment plus restitution. In this timely appeal, Myers contends the trial court erred in refusing to suppress the tape produced by Whitmore’s body recorder, because the Commonwealth had failed to obtain an order from a Superior Court judge authorizing this recording.

The Wiretapping and Electronic Surveillance Control Act (the Act) prescribes criminal penalties for wiretapping and other interceptions of oral communications. Commonwealth v. Brion, 539 Pa. 256, 258, 652 A.2d 287, 288 (1994); 18 Pa.C.S.A. § 5703. The Act also authorizes law enforcement officers to engage in such activities subject to a stringent procedure for showing probable cause before a Superior Court judge. Brion, supra. See 18 Pa.C.S.A. §§ 5708-5726. If an order from a Superior Court judge is not obtained, however, an aggrieved person in any trial “may move to suppress the contents of any ... oral communication [on the ground that] [t]he communication was unlawfully intercepted.” 18 Pa. C.S.A. § 5721(a).

Instantly, the Commonwealth concedes that the police never obtained a Superior Court order authorizing its recording. Nevertheless, the Commonwealth attempts to circumvent this requirement by alleging that Myers’ statements to Whitmore were not “oral communications” and, thus, the Act should not apply. We disagree.

An “oral communication,” for purposes of the Act, is “[a]ny oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation.” 18 Pa. C.S.A. § 5702. A great deal of ink has been expended in this state’s law books, however, attempting to define what constitutes such a justified expectation. During recent years, this issue has been jostled between our esteemed court and our state’s distinguished Supreme Court. The aftermath of this activity: our state has been left with a coherent and just approach for making such a determination.

In Commonwealth v. Schaeffer, 370 Pa.Super. 179, 536 A.2d 354 (1987) (en banc), Judge Cirillo wrote upon the subject in a most eloquent and insightful manner. In Schaeffer, a police informant brought a recorder inside the defendant’s home and, unbeknownst to the defendant, taped his incriminating statements. Since the police had not obtained a proper Superior Court order authorizing the recording, the defendant sought its suppression. Upon the case reaching our court en banc, Judge Cirillo identified the issue as being “whether society recognizes as legitimate the ordinary expectation of the individual that his words are not being electronically recorded and transmitted beyond the four walls of his home or office.” Id. at 206, 536 A.2d at 368. After noting that the defendant’s right to privacy was clearly implicated in this inquiry, our distinguished colleague found that, ordinarily, a person does not expect that a visitor to his home brings along “the added intrusion of the government’s recording or listening.” Id.

Seven years later, our state’s highest court expressly approved Judge Cirillo’s scholarly analysis. Commonwealth v. Brion, 539 Pa. 256, 652 A.2d 287 (1994). In so doing, the Supreme Court reversed a three-judge panel decision of this court which had found that our court’s en banc decision in Schaeffer had been overruled sub silentio by subsequent Supreme Court cases. Commonwealth v. Brion, 381 Pa.Super. 83, 552 A.2d 1105 (1989), rev’d, 539 Pa. 256, 652 A.2d 287 (1994). More importantly, however, the Supreme Court offered valuable insight into the interplay between a person’s right to privacy and his/her expectation that his/her oral communication is not subject to interception. Specifically, the Supreme Court stated that

[w]e reiterate [] that the Act requires that a person uttering an oral communication, as that term is defined under the Act, must have a specific expectation that the contents of a discussion will not be electronically recorded. However, this expectation must be justifiable under the existing circumstances. Implicit in any discussion of an expectation that a communication will not be recorded is a discussion of the right to privacy.

Brion, 539 Pa. at 260, 652 A.2d at 288.

Benefiting from our Supreme Court’s decision in Brion, a recent en banc panel of this court was enabled to state the definitive approach for determining whether a person has a justified expectation under 18 Pa.C.S.A. § 5702. Commonwealth v. McIvor, 448 Pa.Super. 98, 670 A.2d 697 (en banc) (1996). Expressly finding that there is a distinction between the expectation of privacy and the expectation of non-interception, the Mclvor court stated that

[i]n Pennsylvania, our Legislature has determined that that although intercepting a communication to which one is a party may not be a violation of a constitutional privacy interest, it so threatens the private nature of social communication as to be considered unlawful in this Commonwealth. Recognizing this concern of the legislature, any analysis of what constitutes an oral communication under the Wiretap Act cannot be limited to an analysis on strict constitutional privacy grounds. The interest protected by the Wiretap Act is directed to a right not to have one’s words electronically seized under circumstances which are reasonably justified.
[In Brian ], the [Sjupreme [C]ourt did not rule that there must be an expectation of privacy in the recorded communication in order to bring it under the definition of “oral communication” as used by the Wiretap Act. The court merely indicated that an expectation of privacy is an important consideration in the total analysis and is crucial when the interception occurs in one’s home.

448 Pa.Super. at 108, 112, 670 A.2d at 701, 704.

The Mclvor court further noted that

in varying situations this analysis can yield differing results as to whether there is either an expectation of privacy or a expectation of non-interception. Generally, where there is an expectation of privacy there is also an expectation of non-interception. Such is not always the case, however. For instance, if one is being examined by his or her physician and knows from past experience that the doctor often carries a small tape recorder in a pocket to record patient interviews, one’s expectation of non-interception is nearly non-existent, but the expectation of privacy is still extremely high. On the other hand, if one is speaking with the town gossip at a public swimming pool under circumstances insuring that the gossip is not wearing a body wire, one’s . expectation of non-interception is very high, but the expectation of privacy is very low. Thus, an expectation of privacy does not always carry a concomitant expectation of non-interception, and vice versa. For purposes of violation of the Wiretap Act, while we consider the expectation of privacy as a factor, it cannot be the determining factor in our analysis.

Id. at 104, 670 A.2d at 700.

Thus, our inquiry in the present case becomes whether Myers had a justified expectation of non-interception. Our review of the record reveals that such a justified expectation did exist. Under the normal circumstances of everyday life, there are few instances when one would expect his/her spoken words to be intercepted. Unless a person is forewarned or simultaneously creates his/her own recording, a person is generally safe in assuming that words leaving his/her lips travel only as far as can be heard by the naked ear and then vanish into oblivion. As Judge Cirillo stated in Schaeffer, “[w]e find it perfectly reasonable and legitimate for an individual even in this day and age to expect that his words are not subject to warrantless government surveillance.” 370 Pa.Super. at 206, 536 A.2d at 368.

In the instant case, Whitmore testified at the suppression hearing that he had been friends with Myers since boyhood. N.T. 7/22/94 at 16-17. Moreover, the Commonwealth concedes that Myers’ trailer is located “in a rural area and the likelihood of being encountered by passers-by is far less than in an urban home.” Commonwealth’s brief at 9. Thus, we have Myers sitting on his couch, drinking beer with his childhood friend who is positioned two feet away on the door step of Myers’ rural home. Are these circumstances under which Myers could have reasonably expected that his spoken words were not subject to interception? Of course they are. Any other result would ignore the realities of our daily lives/ Here, the circumstances establish not only a large expectation of privacy, but, moreover, an even greater expectation that spoken words will not go beyond the listener. Accordingly, since an order was never obtained from a Superior Court judge authorizing Whitmore to tape his conversation with Myers, we find that the lower court erred in refusing to suppress the recording.

In closing, we note that our decision does nothing to inhibit Whitmore from recounting at trial any inculpatory admission Myers may have uttered. Our decision merely serves to exclude evidence which the Commonwealth never had a right to obtain without a Superior Court judge’s authorization order.

Judgment of sentence reversed and case remanded for retrial with all fruits of the illegal electronic surveillance suppressed. Jurisdiction relinquished.

POPOVICH, J., concurs in the result.