author:
WIEAND, Judge:
      BECK, Judge, OLSZEWSKI, Judge,

text:
    583 A.2d 1205
    Barbara GAROFOLO, Appellant, v. Rajni C. SHAH, Appellee.
    Superior Court of Pennsylvania.
    Argued May 31, 1990.
    Filed Dec. 14, 1990.

      Jordon R. Pitock, Philadelphia, for appellant.
    James F. Albright, Ardmore, for appellee.
    Before ROWLEY, WIEAND, OLSZEWSKI, MONTEMURO, BECK, KELLY, POPOVICH, JOHNSON and FORD ELLIOTT, JJ.
   WIEAND, Judge:

Barbara Garofolo instituted an action against Rajni C. Shah, D.D.S., to recover damages for an unanticipated result which followed the injection of a local anesthetic into her mouth. After discovery proceedings had been completed and in response to a defense motion for summary judgment, the trial court ascertained that Garofolo was unable to establish that Shah’s treatment fell below accepted dental standards. Because Garofolo was unable to prove a prima facie case of negligence, the trial court entered summary judgment in favor of Shah “on all issues except lack of informed consent.” Garofolo thereupon filed the instant appeal.

Generally, an appeal will lie only from a final order unless otherwise permitted by statute or rule of court. Pugar v. Greco, 483 Pa. 68, 72-73, 394 A.2d 542, 544 (1978) . An order is interlocutory and not final unless it puts a litigant out of court. Allesandro v. State Farm Mutual Auto Ins. Co., 487 Pa. 274, 281, 409 A.2d 347, 351 (1979) ; Giannini v. Foy, 279 Pa.Super. 553, 556, 421 A.2d 338, 339 (1980). In Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983), the Court reviewed the applicable law and said:

As a general rule, an order dismissing some but not all counts of a multi-count complaint is interlocutory and not appealable. Gordon v. Gordon, [293 Pa.Super. 491, 499, 439 A.2d 683, 686-687] (1981); Stengena v. Madden, 291 Pa.Super. 364, 366, 435 A.2d 1269, 1270 (1981); Mitchell v. Center City Cadillac, [287 Pa.Super. 350, 353, 430 A.2d 321, 322 (1981) ]; Bagshaw v. Vickers, 286 Pa.Super. 246, 249, 428 A.2d 664, 666 (1981); Giannini v. Foy, supra 279 Pa.Super. at 556, 421 A.2d at 339. An examination of the cases so holding discloses that the basis upon which this general rule is founded is that in most instances when one count of a multi-count complaint has been dismissed, the plaintiff is not out of court and is not precluded from presenting the merits of his cause of action. In these cases the courts have adhered to a policy which seeks to avoid piecemeal litigation. Following the general rule, this Court has ... held that an appeal will not lie from an order granting partial summary judgment. See: Swift v. Milner, 296 Pa.Super. 463, 467, 442 A.2d 1144, 1146 (1982); Rohr v. Keystone Insurance Co., 294 Pa.Super. 179, 182, 439 A.2d 809, 811 (1982); Ruminant Nitrogen Products Co. v. J & M Machinery Co., Inc., 294 Pa.Super. 144, 439 A.2d 791 (1982); Inselberg v. Employers Mutual Companies, 291 Pa.Super. 406, 435 A.2d 1290 (1981); Shaefer v. American States Insurance Co., [272 Pa.Super. 67, 414 A.2d 672 (1979)].

Id., 313 Pa.Superior Ct. at 337-838, 459 A.2d at 1258.

It is correct, as appellant argues, that the decision in Praisner v. Stocker recognized that where a final judgment had been entered on a separate and distinct cause of action, neither its finality nor its appealability was defeated merely because other causes of action remained undetermined. In the instant case, however, appellant pleaded only one cause of action, i.e., the unanticipated result from the injection of anesthesia, and averred several theories in support of that cause of action. Thus, she alleged in a single count that the appellee-dentist had been negligent in failing to diagnose properly, in failing to use proper injection techniques, in failing to observe bleeding, in failing to provide adequate “follow-up treatment” such as antibiotics or treatment to reduce swelling, and in failing to obtain the services of a physician. In addition, appellant alleged that appellee had failed “to inform the plaintiff of the potential danger of the injection of anesthesia.”

A “cause of action” has been defined as “[t]he fact or facts which give a person a right to judicial relief[; t]he legal effect of an occurrence in terms of redress to a party to the occurrence. A situation or state of facts which would entitle [a] party to sustain action and give him [the] right to seek a judicial remedy in his behalf.” Black’s Law Dictionary, 5th ed. (1979). In many cases, but not all, whether separate causes of action have been stated or whether they are merely alternate theories of recovery can be determined by looking to the relief requested. Alternate theories of recovery are different means by which to recover the same damages or relief for a single harm. Separate causes of action request different relief for different harms. In other cases, additional factors must be considered in determining whether a party has alleged separate causes of action or different theories of recovery for a single cause of action.

Although it must be conceded that in close cases the distinction may not be immediately apparent, this is not such a case. Here, the result is clear. In a single count of her complaint, appellant alleged a cause of action for an unanticipated result which had occurred following the injection of anesthesia. In support thereof she averred negligence and also the defendant-dentist’s failure to inform her of the potential consequences of anesthesia. The partial summary judgment entered by the trial court did not put appellant “out of court” on her cause of action. It did nothing more than limit the theory on which appellant’s cause of action would be submitted to the jury. Such an order, like a trial ruling on requested points for charge narrowing the issues to be decided, is interlocutory and not immediately appealable. Appellate review is better delayed until the cause of action alleged by the plaintiff has been finally determined. See: Sweener v. First Baptist Church, 516 Pa. 534, 533 A.2d 998 (1987) (“[a] pivotal consideration in determining whether an order is final and appealable is whether the plaintiff aggrieved by it has, for purposes of the particular action, been put “out of court” on all theories of recovery asserted against a given defendant for a given loss”); Danko Development Corp. v. Econocast Corp., 369 Pa.Super. 120, 534 A.2d 1108 (1987) (appeal quashed where order dismissing one theory of recovery did not put plaintiff out of court on underlying cause of action); Hardy v. Pennock Insurance Agency, Inc., 365 Pa.Super. 206, 529 A.2d 471 (1987) (appeal quashed where order did not put plaintiff out of court because of remaining count alleging alternative theory of recovery on same cause of action); Canulli v. Allstate Insurance Co., 315 Pa.Super. 460, 462 A.2d 286 (1984) (appeal quashed where “effect of the trial court’s order was merely to hold that two of several theories were lacking in merit and could not be pursued upon a trial of the cause.”); 2 Goodrich-Amram 2d § 1035(b):10 (“[a]ny lesser partial judgment which might leave an issue of liability open, would clearly ... be interlocutory.”); 2 Std.Pa.Prac.2d, Decisions Appealable § 86:32 (an order granting summary judgment on one issue, where genuine issues remain, is generally nonappealable.).

Because an appeal will not lie from an interlocutory order, the present appeal must be quashed.

Appeal quashed.

BECK, J., files a concurring opinion.

OLSZEWSKI, J., files a concurring opinion in which KELLY, J., joins.

BECK, Judge,

concurring:

I concur in the result.

The majority quashes this appeal from an order dismissing some but not all of appellant’s claims for relief against appellee. The majority does so because it finds that under Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255, 1259 (1983), the order appealed from did not put appellant out of court on a separate cause of action.

I agree that the appeal should be quashed. However, my conclusion flows not from an application of Praisner’s appealability criteria, i.e., dismissal of a separate cause of action, but rather from the simple fact that appellant is not out of court on all of the claims for relief she set forth in her complaint against appellee. Appellant is still in court and there is no reason to allow an immediate appeal from an order dismissing only a portion of appellant’s case against this defendant.

As to the general viability of Praisner, I refer to and fully incorporate herein my opinion in Trackers Raceway, Inc. v. Comstock, 400 Pa.Super. 432, 583 A.2d 1193 (1990) (en banc) (Beck, J., dissenting), in which I conclude that the doctrine of appealability announced in Praisner should no longer be applied.

OLSZEWSKI, Judge,

concurring:

We concur completely in the result and reasoning of our learned colleague, Judge Wieand. Nevertheless, for the guidance of the bench and bar, we find it necessary to explain the difference between a separate cause of action and an alternate theory of recovery; accordingly, we write this concurring opinion.

In most cases, a separate cause of action can be distinguished from an alternate theory of recovery by looking at the relief requested. Alternate theories of recovery are different means for obtaining the samé relief for the same harm caused by the same party. A plaintiff cannot recover on all of the alternate theories, as this would constitute a duplicative recovery. On the contrary, a separate cause of action requests different relief for different harms. A party may potentially recover complete relief on each of the separate causes of action. In a few cases, this distinction may not be entirely clear; however, we believe this “relief test” will solve most of the problems raised by Praisner cases.

Applying the relief test to this case, we find one cause of action pursued through alternate theories of recovery. Garofolo alleges only one harm in this case: osteitis caused by an injection of local anesthetic. She sought one relief for that harm: $20,000 in monetary damages. She sought this relief under two alternate theories: negligence and lack of informed consent. The negligence theory was disposed of upon a motion for summary judgment, while the informed consent theory remains viable. Garofolo has not yet been put out of court, because she may still recover for the harm suffered on the informed consent theory. For this reason, there is no final order and this appeal must be quashed.

KELLY, J., joins.

      . In Praisner v. Stocker, the plaintiff had alleged separate causes of action for false arrest, assault and battery and malicious abuse of process. The trial court entered summary judgments in favor of the defendant on the separate counts of the complaint which alleged causes of action for false arrest and malicious abuse of process. The plaintiff appealed the entry of these summary judgments to the Superior Court, and the appeal was held to be proper. While the appeal was pending but before it had been decided, the cause of action for assault and battery was litigated to final judgment in the trial court.

      . Paragraph 5 of the complaint is as follows:
      5. On the same date, the Defendant did attempt to inject a local anesthetic in the mouth of the Plaintiff and did so in a careless and negligent manner, causing serious pain and injury to the Plaintiff. The negligence of the Defendant was as follows:
      (a) Failing to properly diagnose the condition of the Plaintiff;
      (b) Failing to inform the Plaintiff of the potential danger of the injection of anesthesia;
      (c) Injecting and puncturing an artery and/or vein in the Plaintiffs mouth;
      (d) Using improper injection techniques, puncturing and/or striking arteries and/or vessels of the Plaintiff’s mouth, including the failure to withdraw a needle inserted in an artery of the mouth of the Plaintiff;

        (e) Failing to observe blood in the aspirated needle when withdrawn from the Plaintiffs mouth;
      (f) Failing to promptly withdraw and aid or assist the Plaintiff after becoming aware of extreme pain of the Plaintiff;
      (g) Failing to apply ice or take any other action after becoming aware of the distress of the Plaintiff;
      (h) Failing to provide follow-up treatment or check for infection in the mouth and face area;
      (i) Failing to take any action with regard to substantial swelling from fluids gathering in the face and mouth area;
      (j) Failing to give antibiotics to prevent infection;
      (k) Failing to advise the Plaintiff to obtain the services of a physician; and
      (/) Was otherwise negligent under the circumstances.


source: Caselaw Access Project

author: WIEAND, Judge. DEL SOLE, Judge,

license: Public Domain

text:
    583 A.2d 1208
    COMMONWEALTH of Pennsylvania, Appellant, v. Edward S. WILCOX, Appellee.
    Superior Court of Pennsylvania.
    Argued May 9, 1990.
    Filed Dec. 18, 1990.

      Richard A. Linzer, Deputy Atty. Gen., Greensburg, for Com.
    John M. Purcell, Uniontown, for appellee.
    Before WIEAND, DEL SOLE and HESTER, JJ.
   WIEAND, Judge.

Edward Wilcox, a pharmacist, was tried by jury and was found guilty of fraudulently misrepresenting to the Department of Welfare the nature of drugs dispensed, this being a violation of the Fraud and Abuse Control Act of June 13, 1967, P.L. 31, as amended, 62 P.S. § 1407(a)(7). The trial court subsequently arrested judgment, believing that the Commonwealth had failed to show beyond a reasonable doubt that it had been Wilcox who had submitted the misinformation. The Commonwealth appealed. After careful review, we reverse.

Upon appeal by the Commonwealth from an order arresting judgment, a reviewing court

must determine whether the evidence offered by the Commonwealth was legally sufficient to support the verdict. Commonwealth v. Froelich, 458 Pa. 104, 326 A.2d 364 (1974). To reach this determination, we accept all of the evidence and all reasonable inferences therefrom, upon which the fact-finder could have based the verdict; we can affirm the granting of a motion in arrest of judgment if, viewed in that manner, the evidence was nonetheless insufficient in law to find guilt beyond a reasonable doubt as to the crime[] charged. Commonwealth v. Blevins, 453 Pa. 481, 309 A.2d 421 (1973). We must view the evidence in the light most favorable to the Commonwealth. Commonwealth v. Hazlett, 429 Pa. 476, 240 A.2d 555 (1968).

Commonwealth v. Robinson, 351 Pa.Super. 309, 311-312, 505 A.2d 997, 998 (1986), quoting Commonwealth v. Nelson, 245 Pa.Super. 33, 36, 369 A.2d 279, 280 (1976), aff'd, 476 Pa. 269, 382 A.2d 715 (1977).

The same standard is applicable in cases, such as the instant case, where [some or all of the evidence] supporting a conviction “is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt.” Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988). See also: Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977); Commonwealth v. Petrisko, 442 Pa. 575, 579-580, 275 A.2d 46, 49 (1971). There is no requirement that the Commonwealth exclude all possibility that a third party may have committed the crime. See: Commonwealth v. Sullivan, supra [472 Pa.] at 152-153, 371 A.2d at 479; Commonwealth v. Kravitz, 400 Pa. 198, 212-213, 161 A.2d 861, 868 (1960), cert. denied, 365 U.S. 846, 81 S.Ct. 807, 5 L.Ed.2d 811 (1961).

Commonwealth v. Akers, 392 Pa.Super. 170, 181, 572 A.2d 746, 751 (1990).

Section 1407 of the Fraud and Abuse Control Act provides in pertinent part:

§ 1407. Provider prohibited acts, criminal penalties and civil remedies
(a) It shall be unlawful for any person to:
(7) Submit a claim which misrepresents the description of services, supplies or equipment dispensed or provided; the dates of services; the identity of the recipient; the identity of the attending, prescribing or referring practitioner; or the identity of the actual provider.

Act of June 13, 1967, P.L. 31, § 1407, as amended, 62 P.S. § 1407(a)(7).

The background for this prosecution was described in the opinion of the learned trial judge as follows:

The defendant, Edward S. Wilcox, is the sole owner of Redstone Pharmacy located at 11 Main Street, Republic, Fayette County, Pennsylvania. Redstone Pharmacy has been a pharmaceutical provider enrolled in the Pennsylvania Department of Public Welfare (hereinafter “DPW”) Medical Assistance Program since 1984. (N.T. 3/6/89, at 6) Under this program, pharmacists sign an agreement with the Office of the Medical Assistance Program under which pharmacists provide pharmaceutical supplies and medications to recipients of public assistance and accept a fee from the Medical Assistance Program as payment in full for their services. (N.T. 3/6/89, at 3, 8-9) Once a provider renders a service to a medical assistance recipient, he completes a medical assistance invoice and submits it to the DPW Claims Processing Center in Harrisburg. The invoice is scanned for the presence of the provider and recipient signatures before it is microfilmed, assigned an identifying number, and processed through the computer system. (N.T. 3/6/89 at 12) If the claim is approved, a treasury tape is forwarded to the Pennsylvania Department of Treasury where a check is generated and mailed to the provider along with a remittance statement. (N.T. 3/6/89, at 13)
At trial, testimony was received from Marian G. Baker, who is employed by the DPW in the Bureau of Quality Assurance as Supervisor of the Pharmacy Review Section. (N.T. 3/6/89, at 62) Mrs. Baker testified that the Bureau of Quality Assurance is the agency which monitors medical assistance providers for compliance with the regulations promulgated in connection with the Medical Assistance Program. (N.T. 3/6/89, at 61) Mrs. Baker further stated that in March, 1986, an investigation of the Redstone Pharmacy was undertaken. She testified that she visited the pharmacy in March, 1986 and reviewed 15,000 prescription forms which had been received by the pharmacy from its customers in exchange for the pharmaceutical supplies and drugs ordered by various physicians during the period from 1984 until March, 1986. (N.T. 3/6/89, at 67) During this review of prescription forms and comparison with paid medical assistance invoices, some discrepancies were found.
These discrepancies prompted Mrs. Baker and her associate, John B. Hocker, to interview 26 DPW medical benefit recipients. (N.T. 3/6/89, at 67; 3/8/89, at 173-176) After the on-site visit to the Redstone Pharmacy and the homes of the 26 DPW medical benefit recipients, an indictment was filed against this defendant, Edward S. Wilcox.

The evidence established that between 1984 and 1986 several medical assistance recipients had had prescriptions filled at the Redstone Pharmacy which contained generic equivalents for the brand name drugs submitted to the Department of Public Welfare for payment. Wilcox was the sole owner of the pharmacy, and his signature appeared on the claims submitted to the Department for payment. Although some signatures may have been affixed by use of a rubber stamp, this evidence was nevertheless sufficient to permit an inference that Wilcox was criminally liable for violating the statute.

Wilcox offered in defense the fact that he had employed other pharmacists who, from time to time, had completed claim forms for submission to the Department and had affixed his signature thereto. From this evidence the jury might have found Wilcox innocent of a knowing attempt to defraud. If pharmacists employed by Wilcox mistakenly or fraudulently submitted false claims without Wilcox’s knowledge or complicity, criminal responsibility should not be imposed upon him vicariously for the conduct of his employees. Whether the defense evidence was credible and whether inferences of innocence were to be drawn therefrom, however, were issues of fact for the jury. It was for the jury to determine whether it believed the testimony of the defense witnesses and whether Wilcox’s stamped signature had been affixed to false claims by employees without Wilcox’s knowledge or complicity. If it rejected this testimony as not credible, the evidence that false claims had been submitted over appellant’s signature was sufficient to warrant a finding of guilt.

Although we agree that the trial court erred in reversing the findings of the jury, we reject the Commonwealth’s argument that Wilcox can be held criminally responsible vicariously for any and all erroneous information contained in claims submitted by employees, even though he had no knowledge that false information was being submitted. Recently, the Supreme Court discussed the mens rea of the offense in Commonwealth v. Lurie, 524 Pa. 56, 569 A.2d 329 (1990), as follows:

Subsection (a)(7) of § 1407 makes it unlawful to submit a claim which misrepresents the service or merchandise delivered, the date or dates of delivery, the identity of the person or persons who received the services or merchandise, the identity of the provider, etc. Again, it is fundamental that to purposely misrepresent any of the information described in subsection (a)(7), is to knowingly present a false or fraudulent claim for payment. On the other hand, a claim which recklessly or negligently misrepresents any of the described information does not involve a knowing presentment of a fraudulent claim and is not accorded criminality.

Id., 524 Pa. at 61-62, 569 A.2d at 331-332 (emphasis added). From this and also from a reading of the statute, it is eminently clear that criminal responsibility attaches only to the knowing or intentional submission of false claims and not to misinformation which is submitted negligently or without the knowledge or complicity of a person whose signature has been affixed by stamp.

In its opinion, the trial court made reference to a jury instruction which, on reflection, it deemed erroneous. The relief for an erroneous jury instruction, however, is the award of a new trial. See: Jones v. Montefiore Hospital, 494 Pa. 410, 420, 431 A.2d 920, 925 (1981); Vaughn v. Philadelphia Transportation Co., 417 Pa. 464, 468, 209 A.2d 279, 282 (1965); Commonwealth v. Myers, 376 Pa.Super. 41, 54, 545 A.2d 309, 315 (1988); Hoffman v. Memorial Osteopathic Hospital, 342 Pa.Super. 375, 382, 492 A.2d 1382, 1386 (1985). An erroneous jury instruction, even if adequately preserved by timely objection, does not warrant an arrest of judgment. Cf. Commonwealth v. Allen, 13 Lycoming 50 (1974) (arrest of judgment limited to errors appearing on face of record or sufficiency of evidence); Commonwealth v. Mock, 49 Berks 183 (1957) (motion in arrest of judgment has no basis where it challenges court’s charge to the jury). In this case, moreover, the record is clear that the defendant did not object to the instruction which the court deemed erroneous. It seems clear, therefore,, that the jury instruction deemed erroneous by the trial court was not a proper basis for arresting judgment. Consequently, we assume that the trial court’s reference to a possibly incorrect jury instruction was an attempt to explain a verdict with which the trial court disagreed and not an explanation for its order arresting judgment.

We express no opinion on appellee’s post-trial assertion that the verdict was so contrary to the weight of the evidence as to require a new trial. This and other issues were raised in a defense motion for new trial and not considered by the trial court because of its decision to arrest judgment. Upon remand, the trial court should consider and decide issues which remain undetermined in the motion for new trial.

The order arresting judgment is reversed, and the case is remanded for a determination of appellee’s motion for new trial. Jurisdiction is not retained.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting:

While I agree with the majority that the questions of whether the defense evidence was credible and whether inferences of innocence were to be drawn therefrom, were issues of fact for the jury, I must nevertheless agree with the trial court that the Commonwealth failed to offer evidence from which the jury could conclude beyond a reasonable doubt that Appellee knowingly submitted fraudulent claims to the Department of Public Welfare (DPW), and therefore would affirm the trial court’s arrest of judgment.

A jury convicted Appellee of seven counts of violating the Welfare Fraud and Abuse Act, 62 Pa.C.S. § 1407(a)(7) which in pertinent part states:

(a) It shall be unlawful for any person to:
(7) Submit a claim which misrepresents the description of services, supplies or equipment dispensed or provided; the dates of services; the identity of the recipient; the identity of the attending, prescribing or referring practitioner; or the identity of the actual provider.

In discussing the mens rea of the offense of violating Subsection (a)(7) of § 1407, the Pennsylvania Supreme Court recently stated:

... Again, it is fundamental that to purposely misrepresent any of the information described in subsection (a)(7), is to knowingly present a false or fraudulent claim for payment. On the other hand, a claim which recklessly or negligently misrepresents any of the described information does not involve a knowing presentment of a fraudulent claim and is not accorded criminality.

Commonwealth v. Lurie, 524 Pa. 56, 569 A.2d 329, at 332 (1990). As the majority notes, it is eminently clear that criminal responsibility attaches only to the knowing or intentional submission of false claims and not to misinformation which is submitted negligently or without the knowledge or complicity of a person whose signature has been affixed by a stamp.

In light of the language of the statute, it is initially necessary to review the testimony and determine if the Commonwealth presented sufficient evidence to prove beyond a reasonable doubt that Appellee submitted any improper claims.

My review of the testimony convinces me that the evidence failed to establish Appellee personally prepared, signed and submitted the medical invoices in question. Testimony from seven DPW medical benefit recipients showed that Appellee was not the sole pharmacist dispensing medications from his pharmacy during the period in question. Two clerks, employed at the pharmacy stated they had filled out invoices which were submitted to the DPW and had either signed Appellee’s name or used a signature stamp embossed with Appellee’s signature, and had seen other pharmacists completing invoices and affixing the signature stamp. A Certified Public Accountant qualified as an expert, testified that the fourteen errors discovered out of fifteen thousand prescriptions reviewed, is an error rate of less than one-tenth of one percent. (N.T. at 320). Furthermore, a pharmacist called by the Commonwealth testified that the total dollar value difference between the brand medications and the generic drugs substituted was less than one hundred dollars. (N.T. at 210).

It is the burden of the Commonwealth to prove Appellee knowingly submitted fraudulent claims to the DPW. From my thorough review of the record I can discern no evidence that would establish Appellee submitted claims with the knowledge they contained erroneous information.

For the foregoing reasons, I would affirm the trial court.

      . Wilcox was acquitted of charges under the Generic Equivalent Drugs Act of November 24, 1976, P.L. 1163, No. 259 § 3, 35 P.S. § 960.3(a), and the Controlled Substance, Drug, Device and Cosmetic Act of April 14, 1972, P.L. 233, No. 64, § 13, as amended, 35 P.S. § 780-113(a)(7).

      . Section 1407(a)(1) provides that it shall be unlawful to
      (1) Knowingly or intentionally present for allowance or payment any false or fraudulent claim or cost report for furnishing services or merchandise under medical assistance, or to knowingly present for allowance or payment any claim or cost report for medically unnecessary services or merchandise under medical assistance, or to knowingly submit false information, for the purpose of obtaining greater compensation than that to which he is legally entitled for furnishing services or merchandise under medical assistance, or to knowingly submit false information for the purpose of obtaining authorization for furnishing services or merchandise under medical assistance.


author: HOFFMAN, Judge: DEL SOLE, Judge,

text:
    583 A.2d 1213
    Deborah STOLTZ and Aloysius Stoltz, h/w, Appellants, v. DATASCOPE CORPORATION and Waterloo Industries Inc. and Mastrin and Mastrin Architects PC a/k/a Philip Mastrin Aia Architect and Associates PC TN Ward Company a/k/a Frank H. Wilson Co. and Williard Inc. v. ROY LARRY SCHLEIN AND ASSOCIATES and Day and Zimmerman and Associates.
    Superior Court of Pennsylvania.
    Argued March 2, 1989.
    Filed Dec. 18, 1990.

      Lee Belfer, Philadelphia, for appellants.
    Patricia A. Harper, Philadelphia, for Datascope, appellee.
    Before CIRILLO, President Judge, and DEL SOLE and HOFFMAN, JJ.

      . This case was originally heard by a panel consisting of Del Sole, Melinson, and Hoffman, JJ. While the case was pending in the Supreme Court of Pennsylvania, Judge Melinson’s appointment expired. President Judge Cirillo has replaced Judge Melinson on this panel.

   HOFFMAN, Judge:

This case is before us on remand from our Supreme Court and concerns the opening of a default judgment. Appellants contend that the court below abused its discretion in opening the default judgment because (a) appellee failed to take depositions in accordance with Pa.R.Civ.P. 209 and specific court order, and (b) when the petition to open and appellants’ answers are considered in light of Rule 209, appellee failed to establish a reasonable excuse for its failure to file an answer to the complaint. In a Memorandum filed May 31, 1989, we remanded to the court below to file a supplemental opinion explaining its reasons for not insisting on compliance with Rule 209. Before the supplemental opinion was filed, however, our Supreme Court amended Rule 311 of the Rules of Appellate Procedure, and Palermo v. Bowers, 388 Pa.Super. 49, 564 A.2d 996 (1989), was decided. In light of Palermo, we determined that we could not reach the merits, and thus we entered an order on November 16, 1989, quashing the appeal. Our Supreme Court granted allowance of appeal, and on August 7, 1990, issued a per curiam order vacating our quashal. In its per curiam order, the Supreme Court stated that:

[application of Pa.R.A.P. 311(a)(1), as amended March 31, 1989, effective July 1, 1989, to this case is not ‘just and practicable,’ especially in view of the time and money expended by the petitioners in filing, briefing, and arguing their appeal before the effective date of the amended rule, indeed before the amended rule was even published.

See Per Curiam Order at 1.

In light of the Supreme Court order, we have reexamined the case on the merits, and for the reasons set forth below, we find that the court abused its discretion in opening the default. Accordingly, we vacate the order and reinstate the default judgment.

The facts related to the litigation below were summarized in our May 31, 1989 Memorandum as follows:

On or about October 5, 1983, appellant-wife sustained injuries while using a product that had been designed and manufactured by appellee. On September 30, 1985, appellants filed their complaint and on October 7, they served the complaint on appellee. In the meantime, appellants had ascertained the identity of additional defendants, and on October 4, 1985, they instituted by writ of summons a second suit against both the original and the newly identified defendants. On November 26, appellants filed their complaint in the second action. Appellee was served with a copy of the complaint on December 2, 1985.
Thereafter, on December 31, 1985, appellants and general counsel for appellee reached an agreement to extend until January 17, 1986, the time for filing an answer to the complaint in the second action. On January 23, appellants filed a praecipe for entry of default judgment against appellee. A little over a month later, on February 27, local counsel for appellee entered his appearance and filed a petition to open the default judgment. On March 25, appellants filed their answer to the petition to open. [One month later,] the court below, by the Honorable Thomas A. White, issued an order directing appellee to take depositions in accordance with Pa.R.Civ.P. 209 by May 27, 1986. The court further noted that “[s]hould petitioner [appellee] fail to file such depositions, all averments of fact properly pleaded in the Answer shall be deemed admitted.” Lower Court Order, [April] 25, 1986 (entered [April] 29, 1986).

Memorandum, May 31, 1989 at 1-2 (footnotes omitted). Although appellee failed to comply with Rule 209 and the court’s order, no action was taken in the suit for almost two years. On July 11, 1989, the Honorable Samuel Lehrer granted appellee’s petition to open. This appeal followed.

Appellants contend that the court below abused its discretion in opening the default judgment because appellee failed to take depositions in accordance with Pa.R.Civ.P. 209 and Judge White’s prior order. Appellants also argue that when Rule 209 is properly applied, it is clear that appellee failed to establish a reasonable excuse for its failure to answer the complaint. We agree. Pa.R.Civ.P. 209 states:

If after filing and service of the answer, the moving party does not within fifteen days:
(a) Proceed by rule or by agreement of counsel to take depositions on disputed issues of fact; or
(b) Order the cause for argument on petition and answer (in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule); the respondent may take a rule as of course on the moving party to show cause why he should not proceed as above. If after hearing the rule shall be made absolute by the court, and the petitioner shall not proceed, as above provided, within fifteen days thereafter, the respondent may order the cause for argument on petition and answer, in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule.

Id.

Here, on April 25, 1986, a month after appellants filed their answer to the petition to open, Judge White ordered appellee to take depositions in accordance with Rule 209 and to file them with the court by June 27, 1986. Appellee failed to comply with this order. On July 1, 1986, appellants filed a supplemental memorandum of law in response to appellee’s petition to open. In this memorandum, appellants requested that the petition to open be denied because appellee had not taken or scheduled depositions as required by Judge White’s April 25, 1986 order. Approximately two years later, appellee scheduled depositions of appellant-wife but she did not appear. Appellee filed a motion for sanctions against appellant-wife along with a motion to compel her to appear for depositions. On March 4, 1988, the Honorable Bernard J. Avellino granted the motion and ordered that appellant-wife “be produced for deposition within sixty days” and awarded appellee’s counsel attorney fees “for time spent preparing for this motion.” Order, March 4, 1988 (docketed March 9, 1988). There was no further action in the case until four months later, when, on July 11, 1988, Judge Lehrer granted appellee’s petition to open. On the July 11 order, Judge Lehrer noted, “[depositions unnecessary. Plaintiff’s counsel acted precipitously in taking default.”

Judge Lehrer concluded that Rule 209 depositions were unnecessary because nothing indicated that depositions would provide support for the facts alleged in appellants’ answer to the petition. The difficulty with this disposition is that it is completely at odds with the operation of Rule 209. Under the Rule, appellee’s failure to comply operates as an admission of all properly pleaded facts in appellants’ answer to the petition to open, see Pa.R.Civ.P. 209(b), and, if all properly pleaded facts in appellants’ answer are accepted as true, it is clear that appellee failed to satisfy the prerequisites to opening a default judgment.

It is well-settled that before a court can exercise its discretion to open a default judgment, the party seeking to open the judgment must (1) promptly file a petition to open, (2) state an adequate excuse why a timely answer was not filed, and (3) show a meritorious defense. Cross v. 50th Ward. Comm. Ambulance Co., 365 Pa.Super. 74, 78, 528 A.2d 1369, 1371 (1987) (citations omitted). These three criteria must be met and coalesce before a default judgment will be opened. Id. Furthermore, because the weighing of these elements depends on equitable considerations, the decision to open a judgment rests on the particular facts of each case. DiNardo v. Central Penn Air Serv. Inc., 358 Pa.Super. 75, 80, 516 A.2d 1187, 1189 (1986); see also McPherson v. Tube City Taxicab Co., 321 Pa.Super. 144, 467 A.2d 1170 (1983). A court reviewing the opening of a default has a limited scope of review because such decision is addressed to the equitable and discretionary powers of the court. The reviewing court will not disturb the trial court’s ruling on appeal absent a manifest abuse of discretion or error of law. Davis v. Burton, 365 Pa.Super. 160, 529 A.2d 22 (1987), allocatur denied, 518 Pa. 655, 544 A.2d 1342 (1988).

In the case at bar, it is undisputed that the petition was promptly filed and that appellee alleged a meritorious defense. Thus, the only issue this court must consider is whether the lower court erred in finding that there was a reasonable excuse for appellee’s failure to file an answer to appellants’ complaint within the prescribed time.

In its petition to open, appellee alleged that (a) appellants did not provide it with the requisite ten days notice of intent to take default in accordance with Pa.R.Civ.P. 237.1, and (b) it did not realize that the documents it received on December 2, 1986 were related to a separate suit and required an answer. See Petition to Open Judgment, February 27, 1986 at 2. If appellee were able to prove these allegations, we would have no choice but to affirm the order below. As we noted in Instapak v. Weisbrod Lamp & Shade, 248 Pa.Super. 176, 374 A.2d 1376 (1977):

[i]f appellee had proved these allegations, and if the lower court had found on the basis of them that appellee had a reasonable excuse for having failed to file an answer ..., we should not reverse, for the decision to grant a petition to open a judgment is within the sound discretion of the lower court and will not be reversed absent a mistake of law or abuse of discretion____ The difficulty is, however, that appellee did not prove its allegations.

Id., 248 Pa.Superior Ct. at 179-80, 374 A.2d at 1377-78 (emphasis added); see also Lazzarotti v. Juliano, 322 Pa. Super. 129, 135-36, 469 A.2d 216, 219 (1983); Getzik v. Spiegel, 280 Pa.Super. 175, 177, 421 A.2d 462, 463 (1980); Arthurs Travel Center, Inc. v. Alten, 268 Pa.Super. 330, 334 n. 1, 408 A.2d 490, 492 n. 1 (1979). Here, as in Instapak, the petitioner failed to prove that it had a reasonable excuse.

Appellee’s allegations regarding its excuse were not uncontradicted. Appellants filed an answer to the petition to open and specifically denied that they had failed to comply with Pa.R.Civ.P. 237.1 and that appellee’s counsel had any mistaken belief about the suit at bar. In regard to whether notice was sent, appellants averred that their counsel had an agreement with appellee’s general counsel to provide appellee with an extension of time to obtain local counsel and answer the complaint. Appellants maintained that, when the extension date had passed and no answer had been filed, they attempted to contact appellee’s general counsel by phone to question him about the matter, but appellee’s counsel did not return their calls. It was not until six days after the extension deadline passed that the default judgment was entered. See Answer to Petition to Open Judgment filed March 25, 1986 at 1-2. Because the parties disputed whether appellee had properly been notified and whether appellee realized that the suit was separate, it was incumbent on the court below to make a finding about which version of the facts was accurate. See Instapak, supra. It is at this point that appellee’s failure to file 209 depositions becomes crucial. As we noted above, the effect of a failure to file is that all properly pleaded facts in the answer are deemed admitted. Here, considering, as we must, appellants’ properly pleaded facts as admitted, it is clear that appellee failed to establish a reasonable excuse.

First, there is no doubt that notice was in conformity with the Rules of Civil Procedure. Rule 237.1 states in relevant part that:

[n]o judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of filing of the praecipe. If a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under the rule. A copy of the notice or agreement shall be attached to the praecipe.

Id. at 237.1(a). Here, because a written agreement for an extension existed, appellant had no further duty to give appellee ten days notice before seeking to enter the default.

Second, the properly pleaded facts in appellants’ answer also contradict appellee’s claim that it mistakenly believed that the December 2 complaint was part of a prior litigation. Appellants noted in their answer that the captions on the two suits were different and that appellee had separate service in the second suit. Thus, appellee should have been aware of the separate suit and the need for counsel to file an answer to appellants’ complaint. Moreover, attached to appellee’s petition to open is a letter from counsel in the earlier suit which states, “I am aware that a companion action has been filed.” Petition to Open Default Judgment, Exhibit D. In short, aside from appellee’s allegations, there is nothing to contradict the properly pleaded answers in appellants’ response to the petition to open.

In summary, it appears that at the time the lower court granted the petition to open, it decided that depositions were unnecessary and inexplicably accepted appellee’s version of the facts rather than appellants’ version. Because the burden was on appellee to support his allegations of fact by depositions, see Pa.R.Civ.P. 209(b), and because appellee did not do so, the lower court’s decision not to accept appellants’ properly pleaded answers as true was plain error. Therefore, we conclude that the lower court abused its discretion in granting the petition to open. Accordingly, we reverse the order of the lower court and reinstate the default judgment against appellee.

Order reversed. Default judgment reinstated.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting.

I must dissent. At the time this case was filed, there existed another civil action between the Appellants and Appellee. Further, that case, 5114 September Term, 1985, was pending at the time the default was entered in this matter. Also, that case was actively being litigated. Almost three months after the default in this case, the previous lawsuit was discontinued by the Appellants. I would find that the trial court did not abuse its discretion by opening the default judgement, where a companion case was pending at the time of the default involving the same parties, and where that case was being actively litigated. For this reason, I dissent.

      . The Honorable Joseph A. Del Sole dissented from this Memorandum.

      . The amendment to Pa.R.A.P. 311(a)(1), effective July 1, 1989, in relevant part, reads as follows:
      (a) ... an appeal may be taken as of right from:
      (1) Affecting Judgments. An order refusing to open, vacate or strike off a judgment. If orders opening, vacating, or striking off a judgment are sought in the alternative, no appeal may be filed until the court has disposed of each claim for relief.
      Thus, under the new Rule, an order which opened a judgment is not appealable as of right. Palermo held that the amended rule "applies to all cases pending on appeal on the effective date unless to deny review would result in the irrevocable loss of a litigants’s [sic] rights.” 388 Pa.Super. at 53, 564 A.2d at 998.

      . It is unclear why Judge White allowed appellee to take depositions rather than deeming appellants’ answers admitted as required by Rule 209.

      . This memorandum was time-stamped and included in the record but was not entered on the docket.

      . The record contains no explanation as to why no further action was taken for almost two years.

      . In this petition, appellee alleged .that "[d]efendant will be greatly prejudiced if it is forced to litigate without deposing the plaintiff.” Motion, March 4, 1989 (docketed March 9, 1988) at 2.

      . We note that in light of the United States Supreme Court decision in Peralta v. Heights Med. Centers, Inc., 485 U.S. 80, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988), it is unclear how specific a petition must be in alleging a meritorious defense. Here, because appellee alleged a meritorious defense, we need not address the impact of Peralta on this case.

      . The answer thus seems to contradict the lower court’s statement in its supplemental opinion that ‘‘[t]here is no indication that depositions would establish counsel for moving party telephoned to advise that the deadline had passed...." Supplemental Opinion, August 18, 1989 at 2.


author: HESTER, Judge:

text:
    583 A.2d 1218
    Gregory LACONIS, Appellant, v. BURLINGTON COUNTY BRIDGE COMMISSION and John Doe, Contractor and Richard Roe, Architect. Gregory LACONIS v. BURLINGTON COUNTY BRIDGE COMMISSION and John Doe, Contractor and Richard Roe, Architect. (Two Cases) Appeal of BURLINGTON COUNTY BRIDGE COMMISSION (Two Cases).
    Superior Court of Pennsylvania.
    Argued June 11, 1990.
    Filed Dec. 18, 1990.

      John F.X. Fenerty, Philadelphia, for appellant (at 7) and for appellee (at 128 and 1045).
    Thomas A. Wallitsch, Allentown, for appellants (at 128 and 1045) and appellees (at 7).
    Before POPOVICH, HOFFMAN and HESTER, JJ.
   HESTER, Judge:

This is an appeal and cross-appeal from judgment entered following the trial court’s denial of post-trial motions in this trespass action where the liability portion of the trial was heard before the trial court and the damages award was made by a jury. The plaintiff, Gregory Laconis, challenges the trial court’s assessment of comparative negligence in the amount of forty-nine percent against him. The main contention of the Burlington County Bridge Commission (“the Commission”) is that it is immune from suit. We reject all allegations of error and affirm the judgment.

The material facts are not disputed. Mr. Laconis instituted this action against the Commission to recover for severe personal injuries that rendered him paralyzed below his mid-body. The injuries were sustained in a single car accident which occurred on September 6, 1979, following a heavy rainfall. Mr. Laconis, who was alone, lost control of his automobile when it hydroplaned in water retained in a depression located along a portion of highway located immediately after the Burlington Bristol Bridge, which links New Jersey and Pennsylvania. The stretch of highway where the accident occurred is a toll road. The Commission operates the bridge, but the portion of the highway where the depression existed is owned by the Commonwealth of Pennsylvania.

After Mr. Laconis filed his complaint, the Commission raised as new matter the affirmative defense of governmental immunity under both New Jersey and Pennsylvania law. It also repeatedly attempted to join the Pennsylvania Department of Transportation as an additional defendant. The trial court denied the Commission’s petitions to join the Commonwealth.

The issue of the Commission’s liability for the accident was submitted to the bench during a four-day period. The Honorable Oscar S. Bortner rendered a verdict in favor of Mr. Laconis and determined that the Commission was fifty-one percent liable for the injuries and that Mr. Laconis was comparatively negligent in causing his injuries in the amount of forty-nine percent. The trial court explained that its assessment of liability on the Commission for the accident was based partially on the following evidence presented to it:

We concluded that the Commission had special knowledge that the PennDot Road was in a state of disrepair resulting in the road becoming flooded (and thereby dangerous) during rainfall. Since the Commission had on its own taken steps to correct the flooding hazard on the PennDot Road, we found it had a common law duty to warn bridge commuters of the danger they would encounter exiting the bridge, during days of extraordinary rainfall.

Trial court opinion, 12/1/89, at 3 (footnote omitted). In assessing liability on the Commission, the trial court also specifically determined that the Commission had actual knowledge of this very dangerous condition along the toll road, that the Commission previously had undertaken to warn motorists when it rained heavily by sending its police to the area to slow down motorists, that it had rained heavily in the area for hours prior to the accident, and that “the condition was in the process of being corrected at the sole initiative and expense of the Commission when the accident occurred.” Id. at 6. Further, the trial court noted that the “Commission had conducted a series of negotiations with PennDot for taking over responsibility of that road.” Id. Thus, the trial court determined that the Commission actually knew about the flooding hazard on the road which resulted in Mr. Laconis’s hydroplaning. The evidence also establishes that on prior occasions during heavy rainfall, the Commission sent its police to the site to warn motorists to slow down. Despite this knowledge, the Commission failed to place any warning signs on the bridge, one-half of which is located in Pennsylvania, in order to warn motorists about the water accumulation in the depression. Moreover, the flooding condition had existed for at least two years, and the Commission unsuccessfully had attempted to repair the problem in June, 1979.

The damages portion of the case subsequently was tried before a jury, which awarded Mr. Laconis $2,125,000. The verdict was molded by the liability determination and delay damages were added. Judgment was entered in favor of Mr. Laconis in the amount of $1,755,985.40. This appeal and cross-appeal followed denial of cross-motions for post-trial relief.

We first address the contention of Mr. Laconis. He alleges that there are no facts in the record to support the trial court’s assessment of comparative negligence against him and that he must be considered fault-free as a matter of law. We strongly disagree. We note initially that there were no eyewitnesses to this accident. Stripped of all rhetoric, his argument is that since he was the only witness, the trial court was required to believe his testimony that he was not speeding prior to the accident and that it could not rely upon expert testimony that indicated that he had been speeding. Mr. Laconis’s argument ignores the fact that expert testimony is an established part of our tort law. The testimony of the Commission’s experts was premised upon observed facts, such as the trajectory of the car when it landed and skid marks on the highway. These experts premised their opinions that Mr. Laconis was speeding on these observations.

As we stated in Lopa v. McGee, 373 Pa.Super. 85, 88, 540 A.2d 311, 312 (1988), quoting Burns v. City of Philadelphia, 350 Pa.Super. 615, 626, 504 A.2d 1321, 1326-27 (1986), when we review a trial court’s assessment of parties’ respective negligence in causing an accident, the issue is not whether we “would have come to a different conclusion, but whether there are ‘evidentiary circumstances or incontrovertible facts of such weight as to convince the court that an injustice has been done.’ ” In this case, the trial court premised its determination of Mr. Laconis’s negligence on the testimony of two expert witnesses who had conducted tests on the road and viewed either the accident scene or photographs of the scene. The investigating police officer offered his opinion that Mr. Laconis lost control of his car because he was driving too fast for conditions. An accident reconstructionist expert, who based his opinion on the car’s trajectory when it exited the road and the tire tracks left by the vehicle on the road, testified that he believed that the accident occurred because Mr. Laconis was traveling in excess of the legal speed. Although Mr. Laconis testified that he was traveling at forty to forty-five miles per hour and that his car left the road solely due to hydroplaning, the trial court was free to believe all, part, or none of the evidence presented to it. Id. We cannot say that its determination that both Mr. Laeonis’s speed and the dangerous condition of the road contributed to the accident is a manifest injustice. Accordingly, we affirm its apportionment of negligence to Mr. Laconis.

Similarly, we reject the Commission’s argument that the evidence was insufficient to support a finding of liability against it. The Commission not only knew about the dangerous drainage problem, but it had assumed responsibility to correct it. In June, 1979, it unsuccessfully attempted to repair the highway. In addition, it sent bridge police to the area when heavy rain fell in order to warn motorists to slow down prior to reaching the accumulation of water. Despite the fact that it both had failed to repair the problem and that it also monitored the situation by warning motorists to slow down after a heavy rainfall, the Commission did not warn motorists the night the accident occurred. The trial court determined that heavy rain had been falling the entire evening prior to the accident. We affirm the trial court’s assessment of liability against the Commission based on its negligent failure to perform the duty which it had undertaken to perform. See Restatement (Second) of Torts §§ 323, 324.

The Commission also claims that the trial court erred in failing to apply the full faith and credit clause of the United States Constitution by not granting it governmental immunity under the New Jersey Tort Claims Act. We disagree. In Nevada v. Hall, 440 U.S. 410, 425, 99 S.Ct. 1182, 1190-91, 59 L.Ed.2d 416, 428 (1979), the Supreme Court expressly held that whether one state is required to accord sovereign immunity in its courts to another state is purely a question of comity. The Court specifically stated that if the public policy of the home state is to allow suit against another state, the full faith and credit clause does not require the home state to grant the other state immunity. Therefore, we now address the real issue before us, which is whether under principles of comity, the trial court should have applied New Jersey law in this action and allowed the Commission to assert the defense of sovereign immunity under the New Jersey Tort Claims Act.

We note initially that in Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978), the doctrine of sovereign immunity was abolished in Pennsylvania, and it is now our stated policy to hold an entity, regardless of its nature, responsible for its tortious conduct. We also note the following additional facts that are relevant to our comity analysis. The Burlington Bristol Bridge links New Jersey and Pennsylvania. One-half of the bridge is in Pennsylvania. When it was built in 1931, the bridge was owned by a private New Jersey corporation formed specifically to acquire it. In 1948, the Commission was formed, and it acquired the bridge from the private corporation. This acquisition was made while New Jersey and Pennsylvania jointly sought to assume control of the bridge through Congress, and the acquisition of the bridge by the Commission terminated these efforts. The Commission is not funded with tax money and operates from tolls collected on the bridge and interest on money that it has invested. See generally Driscoll v. Burlington Bristol Bridge Co., 8 N.J. 433, 86 A.2d 201 (1952). However, it is a public entity under New Jersey state law.

Mr. Laconis is a citizen of Pennsylvania and was injured as a result of the Commission’s tortious conduct in this state. We note that the Commission suggests that all liability against it is premised upon actions that occurred in New Jersey; however, we reject this suggestion for several reasons. First, the Commission’s argument ignores that one-half of its operations are conducted in Pennsylvania since one-half of its bridge is located in Pennsylvania. Furthermore, the Commission owns property in Pennsylvania that links its bridge to the Commonwealth-owned highway where the accident occurred. Therefore, there is no basis for the Commission’s position that the warning signs that it should have posted would have been in New Jersey. Since the problem existed on the Pennsylvania side of the bridge, the warning signs that may have prevented this accident would have been posted on the portion of the bridge located in Pennsylvania or on the Commission-owned land in Pennsylvania that is linked to the highway where the accident occurred. In its arguments before us, the Commission ignores the fact that one-half of its asset (the bridge) is located in Pennsylvania. Furthermore, despite the Commission’s indications to the contrary, its failure to place warning signs was not the only reason the trial court gave for its assessment of liability against it. The trial court stated that since the Commission had “undertaken to correct the problem on its own,” it owed the duty to motorists to warn them about the problem. Trial court opinion, 12/1/89, at 3. Presumably, warning could have been made either with a sign or with police, as in the past. The trial court, as noted supra, specifically assessed liability on the Commission due to its assumption of control over the problem by performing repairs on the hazard and by its provision of police when flooding occurred. All of these actions occurred in Pennsylvania.

It is clear, then, that the following facts govern the comity analysis: the injured party is a citizen of Pennsylvania, the injury occurred in Pennsylvania, the tortious conduct occurred in Pennsylvania, and the tortfeasor, while a creature of New Jersey law, conducts a significant portion of its business in Pennsylvania. Furthermore, the Commission is not funded by tax money. We conclude that under these circumstances, principles of comity do not require us to apply the New Jersey sovereign immunity statute.

Under principles of comity, the rights and liabilities of the parties with respect to a tort action are determined by the law of the state which has the most significant relationship to the occurrence and the parties. See Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964); Restatement (Second) of Conflicts of Laws, §§ 145,146; see also Giovanetti v. Johns-Manville Corp., 372 Pa.Super. 431, 539 A.2d 871 (1988); Miller v. Gay, 323 Pa.Super. 466, 470 A.2d 1353 (1983). The following contacts, which are to be applied qualitatively rather than quantitatively under the case law, that are taken into account in determining which state law applies: the place where the injury occurred; the place where the conduct causing the injury occurred; the domicile, residence, nationality, place of incorporation, and place of business of the parties; and the place where the relationship between the parties is centered. Furthermore, in an action for personal injuries, the law of the state where the injury occurred normally determines the rights and liabilities of the parties, unless another state, applying the contacts test, has a more significant relationship to the occurrence and parties.

Applying these principles to the present case, Pennsylvania clearly has the most significant relationship to these parties and this tortious occurrence. The place of the injury and tortious conduct occurred here. The plaintiff is domiciled in Pennsylvania, which has a strong interest in protecting its citizens against tortious conduct, and the Commission conducts at least one-half of its operations in Pennsylvania. The only contact New Jersey has with this action is that the Commission was incorporated under its laws and conducts business there also. These contacts both qualitatively and quantitatively compel application of Pennsylvania law. Thus, under principles of comity, the trial court was not required to afford the Commission immunity under the New Jersey Tort Claims Act.

The Commission's final contention is that the trial court erred in denying its motion to join the Pennsylvania Department of Transportation as an additional defendant. The Commission concedes that its first joinder motion was denied on December 26, 1985, and that it never obtained a ruling on its second motion. The case law is clear that a motion denying joinder of a defendant is a final, appealable order. National Liberty Life Insurance Co. v. Kling Partnership, 350 Pa.Super. 524, 526 n. 1, 504 A.2d 1273, 1274 n. 1 (1986); see also Keech v. Mead Johnson and Co., 398 Pa.Super. 329, 580 A.2d 1374 (1990). In order to obtain appellate review of the propriety of the December 26, 1985 order denying joinder, the Commission was required to appeal within thirty days of entry of the order.

Based upon the foregoing, the judgment is affirmed.


author: CIRILLO, President Judge.

text:
    583 A.2d 1223
    Marcia OVIATT v. AUTOMATED ENTRANCE SYSTEM COMPANY, INC., Appellant, v. ST. MARGARET MEMORIAL HOSPITAL and Gyro Tech., Inc.
    Superior Court of Pennsylvania.
    Submitted Sept. 19, 1990.
    Filed Dec. 19, 1990.

      W. Alan Torrance, Jr., Pittsburgh, for appellant.
    Arnold D. Wilner, Pittsburgh, for Oviatt, appellee.
    David M. McQuiston, Pittsburgh, for St. Margaret, appellee.
    David A. Presser, Pittsburgh, for Gyro Tech., appellee.
    Before CIRILLO, President Judge, and TAMILIA and HOFFMAN, JJ.
   CIRILLO, President Judge.

This is an appeal from an order of the Court of Common Pleas of Allegheny County granting the motions for summary judgment of additional defendant-appellees, St. Margaret Memorial Hospital and Gyro Tech., Inc. We reverse.

This case arises from a personal injury claim filed by Marcia Oviatt against Automated Entrance Systems Company, Inc. (hereinafter “Automated”) for injuries that she received on August 21» 1986 while walking through automatic glass doors at St Margaret Memorial Hospital. Oviatt claimed that the doors closed on her before she was through them, and that this was the result of Automated’s negligent installation.

On November 28, 1988, Automated joined St. Margaret Memorial Hospital and Gyro Tech., Inc. (hereinafter “additional defendants”) as additional defendants. Gyro Tech., Inc. is the manufacturer of the electronic device that is designed to keep the automatic doors open until the individuals pass through them. St. Margaret Memorial Hospital controlled the facility where Oviatt was injured and allegedly failed to notify Automated of prior similar problems.

After the additional defendants were joined, Oviatt executed a release in favor of all defendants in the amount of $27,500.00. Automated paid this sum to Oviatt. The release, which had the effect of discharging the liability of all parties who could have contributed to Oviatt’s injury, has been defined under Pennsylvania law as a general release. See Brosius v. Lewisburg Craft Fair, 383 Pa.Super. 454, 557 A.2d 27 (1989). After executing the release, Oviatt could no longer proceed against the additional defendants as joint tortfeasors. Brosius, 388 Pa.Super. at 457, 557 A.2d at 29; see also 42 Pa.C.S. § 8826 (“A release by the injured person of one joint tort-feasor, whether before or after judgment, does not discharge the other tort-feasors unless the release so provides....”).

The Honorable Maurice Louik, by his opinion and order of February 9, 1990, granted the additional defendants’ motions for summary judgment. The court reasoned that under the Uniform Contribution Among Tort-Feasors Act, 42 Pa.C.S. §§ 8321-8327 (hereinafter “UCATA”), the liability of these parties to Oviatt was not extinguished by the settlement agreement between Automated and Oviatt, as section 8324(c) requires, because the additional defendants had already been relieved of liability to Oviatt by reason of the statute of limitations. 42 Pa.C.S. § 5524(2). Additionally, the trial court reasoned that because Automated voluntarily settled with Oviatt, it was therefore not entitled to contribution from the additional defendants.

In this action, Automated asks us to decide whether it is entitled to contribution from the additional defendants under the UCATA, where Oviatt’s claims against the non-settling additional defendants were barred by the statute of limitations before settlement. A proper interpretation of the UCATA and related case law compels a holding that Automated is entitled to pursue a contribution claim against the additional defendants.

When reviewing an order granting a motion for summary judgment, our function is to determine whether there are any genuine issues of material fact, and additionally, whether the moving party is entitled to judgment as a matter of law. Bobb v. Kraybill, 354 Pa.Super. 361, 511 A.2d 1379, allocatur denied, 513 Pa. 633, 520 A.2d 1384 (1986); Ciafrani v. Johns-Manville Corp., 334 Pa.Super. 1, 482 A.2d 1049 (1984); Husak v. Berkel, Inc., 234 Pa.Super. 452, 341 A.2d 174 (1975); Pa.R.C.P. 1035. We have previously stated that “[t]o determine the absence of a genuine issue of material fact, we must view the evidence in the light most favorable to the non-moving party and any doubts must be resolved against the entry of judgment.” Bobb, 354 Pa.Super. at 364, 511 A.2d at 1380. Moreover, we must “accept as true all well-pleaded facts in appellant’s pleadings and give appellant the benefit of all reasonable inferences to be drawn therefrom.” Bobb, 354 Pa.Super. at 364, 511 A.2d at 1380 (citing Spain v. Vincente, 315 Pa.Super. 135, 461 A.2d 833 (1983)).

In Pennsylvania, the right of contribution among joint tortfeasors is provided by statute. The UCATA defines joint tortfeasors as “two or more persons jointly or severally liable in tort for the same injury to persons or property, whether or not judgment has been recovered against all or some of them.” 42 Pa.C.S. § 8322. Two parties may be jointly liable for an injury if their conduct “causes a single harm which cannot be apportioned ... even though [the actors] may have acted independently.” Mattia v. Sears, Roebuck & Co., 366 Pa.Super. 504, 507, 581 A.2d 789, 791 (1987) (quoting Capone v. Donovan, 882 Pa.Super. 185, 189, 480 A.2d 1249, 1251 (1984)).

Under the UCATA, joint tortfeasors are not entitled to contribution unless they have discharged the common liability by payment or paid more than their pro rata share of common liability. 42 Pa.C.S. § 8824(b). The UCATA also provides that a joint tortfeasor who settles with the original plaintiff is not entitled to seek contribution from another joint tortfeasor whose liability to the original plaintiff is not extinguished by the settlement. 42 Pa.C.S. § 8824(c).

We point out initially that the case law does not require that judgment be entered before the defendant may seek contribution from other joint tortfeasors. Rather, the only requirement is that one tortfeasor discharge the common liability of all joint tortfeasors by payment to the plaintiff. In the ease of Swartz v. Sunderland, 403 Pa. 222, 169 A.2d 289 (1961), our supreme court expressly permitted an original defendant to seek contribution from an additional defendant after the original defendant had settled the claim with the injured party by securing a release of all claims against the original and additional defendants.

In Swartz, the court stated that the entry of judgment is not a prerequisite to or an “absolute foundation of the right to seek contribution.” Swartz, 403 Pa. at 224, 169 A.2d at 290-91. Sections one and two of the Uniform Contribution Among Tort-Feasors Act, 12 P.S. § 2082 et seq. (repealed 1976) (hereinafter “Act”), are the legislative predecessors to, and are essentially the same as, sections 8322 and 8324 of the UCATA. The court noted that sections one and two of the Act make it clear that only two conditions must be met in order for a contribution claim to arise. According to the court, contribution arises where “one joint tort-feasor has discharged the common liability or paid more than his pro rata share ... [and] the liability of the other joint tort-feasor to the injured persons has been extinguished by the settlement.” 403 Pa. at 224, 169 A.2d at 291. Justice Eagan, writing for a unanimous court, emphasized that the Act was “designed to effectuate a just result for all of the parties involved and to stimulate and permit settlements of valid claims without expensive and time consuming litigation.” Id., 403 Pa. at 225, 169 A.2d at 291. The court bolstered its interpretation of the Act by citing a comment by the Commissioners of the Act:

Nobody would deny that payment of an injured person’s claim by one of the tort-feasors, pursuant to a settlement instead of after judgment in a lawsuit, should entitle the paying tort-feasor to recover contribution to his payment from other joint-tortfeasors.

Id., 403 Pa. at 225, 169 A.2d at 291 (citing Comment in section 2(3) by the Commissioners of the Act, (Note, 9 ULA 236) (emphasis in original)). Moreover, the court emphasized that the non-settling parties that are called upon to discharge their responsibilities will not be prejudiced because no court judgment has been entered in favor of the injured party. Id., 403 Pa. at 225, 169 A.2d at 291. “They [non-settling parties] will still have their day in court with full opportunity to defend against liability and the reasonableness of the amount paid in settlement of the existing claim.” Id., 403 Pa. at 226, 169 A.2d at 291 (emphasis in original).

In the present case, the additional defendants argue that because settlement did not discharge their liability to Oviatt and because settlement was effected prior to the entry of any judgment, no contribution rights arise in favor of Automated. We disagree.

The right of contribution may be asserted during the original proceeding, as Automated has done in the present case, via joinder of the additional defendants, see Pa.R.C.P. 2252, or it may be pursued in a separate action by an original defendant who has previously been held liable to the original plaintiff. National Liberty Life Ins. Co. v. Kling Partnership, 350 Pa.Super. 524, 504 A.2d 1273 (1986). “In the latter instance, the party seeking contribution must stand in the shoes of that original plaintiff and prove that the new defendant was a joint tortfeasor in that his tortious conduct also caused the harm at issue.” Mattia, 366 Pa.Super. at 508, 531 A.2d at 791.

Automated may assert a contribution claim since it has satisfied the two statutory conditions that our supreme court outlined in Swartz, supra. Automated has discharged the common liability of itself and the potential liability of the additional defendants, and has also extinguished their potential liability to Oviatt by securing a general release from Oviatt. 42 Pa.C.S. § 8324(b), (c). Under the UCATA, Automated will be required to show that these additional defendants are joint tortfeasors. 42 Pa. C.S. § 8324(a).

Our reading of Swartz leads us to conclude that Automated is entitled to pursue its contribution claim against the additional defendants even though no judgment has been entered by the trial court. Swartz made it clear that joint-tortfeasors who voluntarily settle with the injured party retain contribution rights against other non-settling joint tortfeasors. Here, as in Swartz, the non-settling additional defendants will have the opportunity to defend against liability and the reasonableness of the amount which Automated paid to Oviatt in consideration of the general release. Swartz, 403 Pa. at 225, 169 A.2d at 291.

We also agree with Automated’s assertion that the statute of limitations applicable to Oviatt’s underlying claim against the additional defendants has no effect on Automated’s ability to enforce a contribution claim against them. It is well settled that a joint tort-feasor’s right to contribution is distinct from the original action. Pa. Nat. Mut. Ins. v. Nicholson Const., 374 Pa.Super. 13, 542 A.2d 123, alloc. denied, 521 Pa. 605, 555 A.2d 116 (1988); Svetz For Svetz v. Land Tool Co., 355 Pa.Super. 230, 513 A.2d 403 (1986); Hughes v. Pron, 286 Pa.Super. 419, 429 A.2d 9 (1983).

In Svetz, we discussed the rights and obligations of defendants and the basic rationale underlying the UCATA. We noted that “contribution is not a recovery for the tort [committed against the plaintiff,] but the enforcement of an equitable duty to share liability for the wrong done.” Id., 355 Pa.Superior Ct. at 238, 513 A.2d at 407. Of particular significance to this action is our observation that “[a] claim for contribution is separate and distinct from [the] underlying tort; the rights and obligations of the defendants flow not from the tort, but from the judgment or settlement itself” Id., 355 Pa.Superior Ct. at 238, 513 A.2d at 407 (emphasis added) (citing Coniaris v. Vail Associates, Inc., 196 Colo. 392, 586 P.2d 224 (1978)). It follows, therefore, that the running of the statute of limitations on the underlying tort claim does not preclude a defendant from pursuing a contribution action. Shaw v. Megargee, 307 Pa. 447, 161 A. 546 (1932) (recognizing rule).

In the case of Hughes v. Pron, 286 Pa.Super. 419, 429 A.2d 9 (1981), this court made it clear that the statute of limitations in the underlying tort action has no effect upon a defendant’s contribution rights. Hughes involved a contribution claim against a developer for negligent construction of a home. Mr. and Mrs. Hughes, who were joint owners of a piece of property, brought suit against the Prons, because the Prons had mistakenly erected a house on the Hughes’ property. The Prons joined Yamulla Trucking and Excavating Co., (“Yamulla”) a developer, as an additional defendant, alleging that the house was mistakenly built upon the Hughes’ property because of Yamulla’s negligence. We held that the trial court had improperly refused Yamulla’s motion to amend its answer to include the statute of limitations as a defense to the Prons’ complaint. Nonetheless, we noted that even if Yamulla had been permitted to assert the statute of limitations as a defense, this would not have prevented the Prons from asserting a contribution claim. Yamulla, one of the additional defendants, theorized that its negligence occurred, if at all, when the Prons first discovered that their house was erected on the wrong lot. Therefore, Yamulla argued, it could not be liable because the statute of limitations had expired by the time the suit was filed. We rejected Yamulla’s theory and stated:

Appellant, [Yamulla], however, has misconstrued his status as an additional defendant in this litigation. While the plaintiffs herein, Robert and Anne Hughes, may have been barred by the statute from bringing suit against appellant, this had no effect upon the Prons’ ability to join appellant as an additional defendant: “The fact that the statute of limitations will bar the plaintiff from a direct recovery against the additional defendant can have no effect on the defendant’s right to enforce his claim of contribution or indemnity ...”

286 Pa.Super. at 426, 429 A.2d at 12 (citing Goodrich-Am-ram Rules of Civil Procedure, Comments on Rule 2252(a)-9) (quotation marks and additional citations omitted).

Here, the trial court reasoned that because the statute of limitations in Oviatt’s claim against the additional defendants had expired, this had the effect of precluding Automated from asserting a contribution claim under the UCA-TA. According to the trial court’s rationale, the additional defendants’ liability to Oviatt could not have been extinguished by the general release, as section 8324(c) requires, because it had already been extinguished by expiration of the statute of limitations in Oviatt’s direct claim against the additional defendants. 42 Pa.C.S. § 5524(2). This construction of the UCATA, however, does not comport with the principle that a tortfeasor’s right to contribution is distinct from the underlying tort action. See Nicholson, Svetz, Hughes, supra.

In this action, as in Svetz, the rights and obligations of the defendants [Automated, Gyro and St. Margaret] flow not from the tort, but from the general release that Oviatt executed in favor of Automated and “all other persons, firms, partnerships, and corporations which ... [may be] liable to [Oviatt].” General Release, supra, note 2. Since the rights and obligations of defendants in a contribution action “do not flow from the tort,” it necessarily follows that the statute of limitations applicable to the plaintiffs underlying tort claim cannot relieve additional defendants from contribution claims. Shaw, Hughes, Svetz, supra.

This court has also stated that the IJCATA must be read with equity in mind. Mattia, 366 Pa.Super. at 507, 531 A.2d at 791. Automated’s right to assert a contribution claim against the additional defendants derives from the equitable principle that it would be unfair to impose the burden of Oviatt’s loss on Automated to the exclusion of the additional defendants. Svetz, supra. Of course, as we have stated in the above discussion, the additional defendants will have the opportunity to prove that they did not contribute to Oviatt’s injuries. Swartz, 403 Pa. at 225, 169 A.2d at 291. If successful, Automated’s contribution claim will fail.

For the above reasons, we conclude that the additional defendants, the moving parties in this action, are not entitled to judgment as a matter of law.

Summary judgment in favor of the additional defendants is reversed and the case is remanded for further proceedings. Jurisdiction relinquished.

      . Oviatt initiated her action by Writ of Summons on August 4, 1988 and filed her complaint, wherein she alleged negligence on the part of Automated, on November 9, 1988.

      . The release executed by Marcia Oviatt states, in pertinent part: [I] being of lawful age, hereby fully and forever release, acquit and discharge the said defendant and any and all other persons, firms, partnerships and corporations which are or might be claimed to be liable to me ... from any and all actions, causes of action, claims and demands of whatsoever kind or nature on account of any and all known and unknown injuries ... sustained or received on or about the 21st day of August, 1986.

      . In the case of Charles v. Giant Eagle Markets, 513 Pa. 474, 522 A.2d 1 (1987), our supreme court discussed the definition of "voluntary settlement” in the context of a contribution claim under the UCATA. In their briefs, the additional defendants direct our attention to Chief Justice Nix’s observation that a settling tortfeasor who elects to pay consideration for a release enjoys no contribution rights. The Chief Justice stated that the settling tortfeasor would receive a “windfall” if he were permitted to assert contribution rights after discovering that he "overestimated the extent of his liability." Id., 513 Pa. at 481, 522 A.2d at 4. While this language may be persuasive, the holding of Charles related only to the effect of a joint tortfeasor’s overpayment of its share on the right of contribution between settling and non-settling defendants.
      In Charles, unlike the case before us, a settling tortfeasor paid in excess of its share of the verdict as subsequently determined by a jury. The non-settling tortfeasor took the position that the verdict against it should have been reduced by the amount that the settling tortfeasor had paid in excess of its share of the verdict. Our supreme court rejected this argument and concluded, "where a release has been executed, the verdict is reduced only by the proportionate share of the settling tortfeasor. The actual amount of the release, if it exceeds this sum, is of no consequence in the satisfaction of the judgment of the remaining defendants.” Id., 513 Pa. at 479, 522 A.2d at 3. The reasoning in the Charles opinion is therefore inapplicable to this action because the general release discharged all defendants from liability to Oviatt, while in Charles only the original defendant was released by the plaintiff. See also Svetz For Svetz v. Land Tool Company, 355 Pa.Super. 230, 238, 513 A.2d 403, 407 (1986) ("tort-feasor's right to receive contribution from a joint tortfeasor derives not from his liability to plaintiff, but rather from the equitable principle that once the joint liability of several tortfeasors has been determined, it would be unfair to impose the financial burden of the plaintiffs loss on one tortfeasor to the exclusion of the other.”)

      . Yamulla demanded a jury trial and joined the building contractor, averring that it was the contractor’s negligence that caused the errant construction.

      . Yamulla had moved for summary judgment and requested leave under Pa.R.C.P. 1033 to file an amended answer to the Prons’ complaint so that it could plead the statute of limitations. The trial court refused Yamulla’s motion to amend the answer on the ground that the statute of limitations defense would have been meritless. We held that this was an improper basis upon which to deny Yamulla’s petition. 286 Pa.Super. at 423, 429 A.2d at 11.

      . The rationale for this general rule is that otherwise an injured party could foreclose a tortfeasor’s right to contribution by waiting to bring his action until just before expiration of the statute of limitations on his claim. Annotation, When Statute of Limitations Commences to Run Against Claim for Contribution or Indemnity Based on Tort, 57 A.L.R.3d 867, § 3, at 875-877 (1989). The defendant’s right of contribution, a doctrine based upon principles of fairness, could be frustrated by such a plaintiff. Id. Here, Oviatt, who was injured on August 21, 1986, did not initiate her action against Automated by Writ of Summons until August 4, 1988. This was little more than two weeks before the two-year statute of limitations would have barred her claim. Moreover, Oviatt filed her complaint asserting negligence on the part of Automated on November 9, 1988. Therefore, Automated did not receive notice of Oviatt’s allegation that it had negligently installed the automatic doors at St. Margaret Memorial Hospital until more than two months after the statute of limitations had expired in any claim that Oviatt had against the additional defendants. Consequently, Automated could not have joined the additional defendants before the statute of limitations had expired on August 21, 1988. If we were to adopt the additional defendants’ interpretation of the UCATA, Oviatt, by her unilateral actions, could elect where to place the burden of a potentially common fault. Oviatt’s failure to commence an action against Automated until her claim had almost expired would have the effect of insulating the additional defendants from sharing the burden of Oviatt’s loss with Automated. We will not countenance an injustice of this nature.
      The additional defendants have made no allegation that they have been improperly brought into this action under the applicable rules of civil procedure. See Pa.R.C.P. 2251-2275 (relating to "Joinder of Additional Defendants”). Rule 2252 states in pertinent part:
      (a) Except as provided by Rule 1706.1 (relating to the three bases of joinder applicable in class action suits), any defendant or additional defendant may join as an additional defendant any person, whether or not a party to the action, who may be
      (1) solely liable on the plaintiffs cause of action, or
      (2) liable over to the joining party on the plaintiff’s cause of action, or
      (3) jointly or severally liable with the joining party on the plaintiffs cause of action, or
      Pa.R.C.P. 2252.
      If the statute of limitations prevents a direct suit by a plaintiff against an additional defendant, joinder of the additional defendant is improper on the ground that he is alone liable to the plaintiff. Goodrich--Amram 2d, Standard Pennsylvania Practice, § 2252(a):9, at 58 (hereinafter "Goodrich-Amram”). However, where an original defendant joins an additional defendant on alternative theories of sole liability and liability over, the fact that the statute of limitations may bar a claim based on sole liability will not defeat the joinder; the claim over remains viable. Hughes, supra; Dickson v. Lewandowski, 228 Pa.Super. 57, 323 A.2d 169 (1974).
      Here, after Oviatt served Automated with her complaint. Automated filed a timely complaint to join the additional defendants on November 28, 1988. See Pa.R.C.P. 2253 (“... neither praecipe for a writ to join an additional defendant nor a complaint if the joinder is commenced by a complaint, shall be filed by the original defendant ... later than sixty days after the service upon the original defendant of the initial pleading of the plaintiff ...”). In its complaint. Automated averred that the additional defendants are alone liable to Oviatt or, in the alternative, are liable over to Automated upon principles of contribution and/or indemnity. Automated further stated that St. Margaret Memorial Hospital is alone liable to Oviatt or, in the alternative, liable jointly and severally with Automated and Gyro Tech, Inc. Since Automated has stated alternative theories of recovery in its pleadings, it has therefore properly joined the additional defendants. See Pa.R.C.P. 2252 & 2253; Hughes, supra; Dickson, supra; GoodrichAmram, supra.