author: POPOVICH, Judge: Judge JOHNSON,

text:
    638 A.2d 233
    Janine GUNTER, Appellee, v. CONSTITUTION STATE SERVICE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 7, 1993.
    Filed March 4, 1994.

      Diaiine A. Dichter, Philadelphia, for appellant.
    Allan J. Sagot, Philadelphia, for appellee.
    Before POPOVICH, JOHNSON and HOFFMAN, JJ.
   POPOVICH, Judge:

The Defendant/Appellant, Constitution State Service Company, appeals the order (reduced to judgment thereafter) of the Court of Common Pleas of Philadelphia County denying its motion for post-trial relief. We affirm in a case of first impression.

The facts of record disclose that on the 17th day of November, 1988, the Plaintiff, Janine Gunter, walked across one-half of a light-controlled intersection at Old York Road and 66th Avenue in Philadelphia. She came to rest on an island separating the lanes of traffic. Before proceeding, she looked to her right and observed a van stopped at the red light. With the traffic at a standstill, the Plaintiff proceeded across the remaining portion of the roadway when “a car came from behind the van and hit” her. The Plaintiff was knocked to the ground and needed the assistance of some employees at a nearby business to remove her to a safe location.

The striking vehicle left the scene and could not be identified by the Plaintiff. Shortly after the incident, the Philadelphia Fire Rescue Squad, consisting of two emergency medical technicians (EMT), was dispatched to the location and placed a flexible cast on the Plaintiffs leg before transporting her to the hospital. The Plaintiff spoke to no police officer either at the scene or at the hospital, from where she was released the same day.

The Plaintiff testified at trial, to which the Defendant objected on hearsay grounds, that once discharged from the hospital she did not file a report with the police because, as she told it:

When I talked—when the guy in the ambulance was talking to me he took the report and he said he would take care of it.

All parties agree that no report has been located as filed with the Philadelphia police department.

The Plaintiff was the sole witness to testify at the bench trial, after which the court entered an award in favor of the Plaintiff and against the Defendant in the amount of $6,000.00 for pain and suffering and $3,948.25 for medical bills. Post-trial motions were denied and this appeal was perfected by the Defendant as the assignee (for statutory first party medical and uninsured motorist benefits) under the Assigned Claims Plan operated pursuant to the Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S.A. § 1701 et seq. Benefits were denied by the Appellant on the basis that the Appellee did not file a report of the accident with the police under the Appellant’s interpretation of the MVFRL.

On appeal, the Appellant raises two issues for our consideration; to-wit:

I. Whether an Assigned Claims Plan claimant who reports an accident involving an unidentified motor vehicle only to the Philadelphia Fire Rescue Squad has reported the accident to a “proper governmental authority” within the meaning of 75 Pa.C.S.A. § 1702 so as to render the striking vehicle uninsured?
II. Whether the Plaintiff/Appellee’s testimony regarding a statement made to her by an Emergency Medical Technician, who she failed to call as a witness at trial,[] should have been admitted into evidence?

Appellant’s Brief at 2. We respond to the last issue first, for if the Plaintiffs complained-of testimony referring to the EMT employee’s offer to report the accident to the police was excludable on hearsay grounds, the reporting requirement of the MVFRL was not satisfied and the Plaintiff is not entitled to benefits.

It is well-established in this Commonwealth that “nothing is more adamantly established in American trial procedure than that no one may testify to what somebody else told him[/her].” Johnson v. People Cab Co., 386 Pa. 513, 126 A.2d 720, 721 (1956). The hearsay nature of the evidence is rendered inadmissible unless it qualifies under one of the recognized exceptions to that rule. 5 Wigmore, Evidence § 1420 et seq. (Chadbourn Rev.1974); McCormick, Evidence § 249 (2d ed. 1972).

If the statement of the Plaintiff in refraining from filing a report with the police, on the strength of the EMT employee’s statement that he “would take care of it,” were offered to prove the truth of the content of the EMT employee’s remarks, the statement would be clearly hearsay. See Commonwealth v. Smith, 523 Pa. 577, 568 A.2d 600 (1989), wherein our Supreme Court responded to a similar evidentiary claim in a criminal setting, the applicability of which is just as germane to the civil case facing us; to-wit:

The predicate supporting the rejection of hearsay evidence is its assumed unreliability because the declarant from which the statement originates is not before the trier of fact and therefore cannot be challenged as to the accuracy of the information sought to be conveyed.
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The hearsay concern is not present where statements of an out-of-court declarant are not being offered for the truth of the content of those statements. For instance, a witness may testify to a statement made to him when the purpose of its introduction is the fact that the statement was, in fact, made.... Similarly, we have recognized that out-of-court statements which are offered to prove the declarant’s state of mind are not within the interdiction of the hearsay rule....
' In this instance the [Appellee] argues the testimonial value of these statements was the effect they had upon the listeners. The key to the admission of evidence for this purpose is that no assertive or testimonial use is sought to be made of the content of the utterance.... The test for relevancy is whether the proffered evidence tends to make a material fact more or less probable.

Id. at 593-94, 568 A.2d at 608-09 (Citations omitted).

At bar, the Appellee was not concerned with proving the truth of the statement made by the EMT employees, i.e., he would notify the police of the accident. Rather, she was preoccupied with establishing her state of mind at the time the conversation took place. She had just been struck and injured by a “hit and run” vehicle, and she reported the incident to an emergency medical technician en route to the hospital. She believed the incident would be reported to the police because of the technician’s remarks to that effect.

Viewed in such a light, we agree with the court that no evidentiary rules were violated in permitting the Appellee to testify to what she told the EMT employee and his response thereto. Id. The linchpin to admissibility is that the remarks were made and not whether the EMT employee carried out his statements to notify the police of the occurrence of the accident on behalf of the Appellee. Thus, we hold meritless the hearsay claim raised by the Appellant, concluding that the remarks testified to were both relevant (they increased the probability of a material fact at issue—whether the Appellee communicated to the EMT employee about the “hit and run”) and admissible. Id.

To obtain benefits through the Assigned Claims Plan, one must meet the eligibility requirements of 75 Pa.C.S.A. § 1752. Pennsylvania Financial Responsibility Assigned Claims Plan v. English, 427 Pa.Super. 105, 628 A.2d 847 (Pa.Super., filed May 28, 1993). Section 1752 provides:

(a) General rule.—A person is eligible to recover benefits from the Assigned Claims Plan if the person meets the following requirements:
(1) Is a resident of this Commonwealth.
(2) Is injured as the result of a motor vehicle accident occurring in this Commonwealth.
(3) Is not an owner of a motor vehicle required to be registered under Chapter 13 (relating to registration of vehicles).
(4) Is not the operator or occupant of a motor vehicle owned by the Federal Government or any of its agencies, departments or authorities.
(5) Is not the operator or occupant of a motor vehicle owned by a self-insurer or by an individual or entity who or which is immune from liability for, or is not required to provide, benefits or uninsured and underinsured motorist coverage.
(6) Is otherwise not entitled to receive any first party benefits under section 1711 (relating to required benefits) or 1712 (relating to availability of benefits) applicable to the injury arising from the accident.

As amended, Act of February 12,1984, P.L. 53, No. 12, § 3, 75 Pa.C.S.A. § 1752. The Appellant concedes that if the Appellee is found to have complied with Section 1752(a)(3), she is an eligible claimant and entitled to benefits under the Assigned Claims Plan. See N.T. 10/15/92 at 20.

Because the Appellee was not covered under any source of motor vehicle insurance when she was struck while crossing a roadway, she had the burden of proving that the vehicle which struck her was uninsured. Section 1702 of the MVFRL defines “uninsured motor vehicle”, as is herein relevant:

(3) An unidentified motor vehicle that causes an accident resulting in injury provided the accident is reported to the police or proper governmental authority and the claimant notifies his insurer within 30 days, or as soon as practicable thereafter, that the claimant or his legal representative has a legal action arising out of the accident.

As amended, Act of February 7, 1990, P.L. 11, No. 6, § 7, 75 Pa.C.S.A. § 1702 (Supp.1993) (Emphasis added).

All parties agree, and our research confirms the fact, that nowhere in the statute or case law (of this or other jurisdictions) has the language “proper governmental authority” been interpreted. Thus, resolution of whether the Appellee’s communication to an EMT employee of the accident satisfies the notice requirement under the MVFRL to a “proper governmental authority” requires us to construe Section 1702. When construing statutory provisions, this Court is guided by the Statutory Construction Act of 1972. 1 Pa.C.S.A. § 1501 et seq. “The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly.” 1 Pa.C.S.A. § 1921(a); see also Frontini v. Pennsylvania Dept. of Trans., 527 Pa. 448, 593 A.2d 410, 411-12 (1991). On this same point, and in analyzing the same statutory provision under different facts, this Court has remarked:

... in interpreting the Uninsured Motorist Act, and the No-Fault Act (repealed and replaced by the MVFRL), the statutes are to be construed liberally. Brader v. Nationwide Mutual Insurance Co., 270 Pa.Super. 258, 264, 411 A.2d 516, 519 (1979). Our Supreme Court stated in Harleysville Mutual Casualty Co. v. Blumling, 429 Pa. 389, 395, 241 A.2d 112, 115 (1968), that “[t]he purpose of the uninsured motorist law is to provide protection to innocent victims of irresponsible drivers.” The MVFRL’s chief policy goal is the establishment of a liberally compensatory scheme of uninsured and underinsured motorist protection. Ronca, Sloane and Mundy, Pennsylvania Motorist Vehicle Insurance: An Analysis of the Financial Responsibility Law, (1968), p. 96. The liberal compensatory intent of the Uninsured Motorist Act is preserved, if not strengthened, in the MVFRL, because the MVFRL has essentially adopted the language of the Uninsured Motorist Act as to the purpose of uninsured motorist coverage. The MVFRL states, in pertinent part:
Uninsured motorist coverage shall provide protection for persons who suffer injury arising out of the maintenance or use of a motor vehicle and are legally entitled to recover damages therefor from owners or operators of uninsured vehicles. 75 Pa.C.S. § 1731(b).

Hatcher v. Travelers Insurance Co., 421 Pa.Super. 225, 617 A.2d 808, 810 (1992).

Lastly, we add the precept that “[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S.A. § 1921(b); see also Rivenbark v. Pennsylvania Bd. of Probation & Parole, 509 Pa. 248, 501 A.2d 1110, 1114 (1985).

The phrase “proper governmental authority” in Section 1702 is not clear and unambiguous. Nor has the language under scrutiny been the subject of interpretation by case law. As such, we need to peruse other sources to supplement our research, being ever vigilant to achieve the legislature’s principal goal of establishing a liberally compensatory scheme. Hatcher, supra; Sturkie v. Erie Insurance Group, 407 Pa.Super. 117, 595 A.2d 152 (1991).

We commence with the case of Dixon v. Motor Vehicle Accident Indemnification Corp., 56 A.D.2d 650, 391 N.Y.S.2d 898 (1977), wherein the appellate division of the Supreme Court of New York was confronted with an appeal from an order denying the Appellant/Dixon’s motion for leave to sue to recover monies claimed due from a governmental agency comparable to Pennsylvania’s Assigned Claims Plan, i.e., the Motor Vehicle Accident Indemnification Corporation (MVA-IC).

The Appellant’s claim in Dixon was refused by MVAIC because the report of the hit-and-run accident was not made by the Appellant/vietim to the police within 24 hours of the accident. Rather, an eyewitness dialed “0” from a nearby phone and asked the operator to contact the police and an ambulance. The ambulance arrived and removed the victim to the hospital, where the eyewitness remained with the victim. It was conceded that the police never arrived at the scene or hospital and counsel for the Appellant admitted that, if the police were called, the authorities would state they had no record of the accident.

In reversing, the New York court made statements germane to the case at bar; to-wit:

It must be noted that the statute does not require the injured party to make the report. Subdivision [b] of section 608 of the Insurance Law states that the protection provided by the MVAIC is available to “[a]ny qualified person having a cause * * * of action * * * arising out of a motor vehicle accident * * * reported within twenty-four hours” (see, also, Matter of Davis [MVAIC], 38 A.D.2d 663, 305 N.Y.S.2d 12). Moreover, the statute is silent regarding the type of report which is to be made to the police. In Gordon v. Motor Vehicle Acc. Ind. Corp. [90 Misc.2d 382, 394 N.Y.S.2d 509 (N.Y.Sup.1976). (NYLJ, Aug. 4, 1976 p. 9 col. 3) petitioner, injured by a hit-and-run driver, calléd the police several hours after the accident through the police emergency number, “911”. Petitioner in Gordon was unable to discover if the police had in fact received the call. The insurer argued that it would be impossible to refute this type of testimony and that notice through the emergency telephone number, “911”, did not satisfy the statute.
The court in Gordon granted petitioner’s application, noting that the legislative purpose in establishing the MVAIC was to afford the injured person the same protection he would have if the tort-feasor were covered by insurance and that the statute should be liberally construed to serve rather than defeat those ends____ Moreover, it is evident that the Legislature provided for prompt notification to the police in order to prevent the filing of fraudulent claims ... In Matter of Casanova v. Motor Vehicle Acc. Ind. Corp, 36 Misc.2d 489, 490, 232 N.Y.S.2d 713, 714, the court stated that “[a] failure by the Police Authorities to record the report does not invalidate an otherwise proper claim.”
It is clear, therefore, that each application brought pursuant to this statute must depend upon the evidence adduced and the credibility of the witnesses.
In our view the testimony of the disinterested witness, that he saw the hit-and-run accident and thereupon called the telephone operator and advised her to call the police and an ambulance, could satisfy the notice requirement of the statute, if the Special Term believed that the operator in fact called the police.

391 N.Y.S.2d at 900 (Citations omitted in part).

At bar, as in Dixon, the statute does not stipulate that only the injured party is permitted to make an accident report to police, nor does the statute detail the manner in which the report is to be made to the police, i.e., in writing or orally. See Hatcher, supra (No written report need be produced by claimant to establish communicating “hit and run” accident to police; question of fact for factfinder to decide).

Likewise, we do not subscribe to the view espoused by the Appellant that the Pennsylvania Department of Transportation would be the only other “proper governmental authority” to whom an accident could be reported. See Appellant’s Brief at 18. We find most compelling the fact that in the definitional section of the MVFRL (75 Pa.C.S.A. § 1702) both terms appear: “Department”, which includes the Department of Transportation or Insurance Department, and “uninsured motor vehicle”, whereby the latter makes no reference to the term “department” as the optional governmental body (in addition to the police) to which a report could be made if an accident by an unidentified vehicle occurred. Rather, the Legislature inserted the phrase “proper governmental authority” as the alternative source with whom a report could be lodged involving an “uninsured motor vehicle.” We may not merely ignore such a fact.

Because of the liberal interpretation accorded the MVFRL, we read “governmental authority” to embrace, given its context and location in the statute regarding reporting requirements, the party receiving the information and (of necessity) equating him/her with an “agent” of the governmental body engaged in the performance of a governmental “function” at the time “reporting” transpires. As much can be garnered from Black’s Law Dictionary (6th ed. 1990) at 695 & 696, which defines the preceding terminology thusly:

Governmental agents. Those performing services and duties of a public character for benefit of all citizens of community. The term includes firemen and policemen.
* * * * * Hi
Governmental functions. The functions of a municipality which are essential to its existence, in sense of serving public at large, and are to be distinguished from those which are private, which are not necessary to its existence, and which enure to advantage of its inhabitants. Activities which are carried on by city, pursuant to state requirement, in discharge of state’s obligation for health, safety or general welfare of public generally, or which are voluntarily assumed by city for benefit of public generally rather than for its own citizens, are performed in governmental capacity and as “governmental function”.
Governmental. Of, pertaining to, or proceeding from government. [Citations omitted]

Instantly, the Philadelphia Fire Rescue Squad is the byproduct of that first class City’s efforts to implement the Emergency Medical Services Act, 35 P.S. § 6921 et seq., which is a coordinated program to assure that the Commonwealth’s emergency medical services will be handled by communicative facilities which are accessible to the general public through a common telephone number (e.g., “911”). In particular, Section 12-102 of Philadelphia Traffic Code defines emergency vehicles to include police and fire departments. Section 12-310 provides that firemen may assist the police in directing traffic at the scene of a fire and that no person shall fail or refuse to comply with any lawful order or direction of a fireman assisting the police. Thus, it would appear, the two departments have some co-extensive functions.

Further, of interest to this Court is the fact that a volunteer fire company has been considered a “local agency” for purposes of being granted immunity from suit under 42 Pa.C.S.A. § 8541. See Guinn v. Alburtis Fire Co., 531 Pa. 500, 614 A.2d 218 (1992). Upon closer examination of the statute, we learn that “local agency” is defined as a “government unit other than the Commonwealth government.” 42 Pa.C.S.A. § 8501. A “government unit” includes any government agency. Id. at § 102. A “government agency” includes any political subdivision, or any officer or agency of any such political subdivision. Id.

Therefore, we find that a fire rescue service created, maintained and governed by a city to benefit the health, safety or welfare of the public is a “unit” of ‘local government/agency.” Id.; Black’s Law Dictionary, supra; cf. Schulmeister v. Union Tp. Ambulance, 35 Pa.D. & C.3d 83 (1984) (An ambulance service which is an independent, nonprofit corporation that is neither a subordinate governmental activity of a township nor an agency of the municipality is not immune from suit under Municipal Tort Claims Act, 42 Pa.C.S.A. § 8541). This translates into a determination that as a “unit” of local government, the employees of Philadelphia’s Fire Rescue Squad would be entitled to immunity from suit while in the performance of their duties as health care provider or involvement in charitable work on behalf of the “local agency.” Cf. Guinn, supra.

Based on the preceding, we find it appropriate to hold that members of Philadelphia’s Fire Rescue Squad (as representatives and/or agents of the City acting on its behalf for the public good) be considered an integral part of a “governmental authority.”

Having so found, our next subject of inquiry is whether the Appellee’s communication of her accident to the rescue squad should be equated with a “proper governmental authority” to whom such a report could be made. The qualifying adjective: “proper” circumscribes the list of governmental authorities to exclude some, but not all, agencies that exist as an extension of state, county and local government. However, we do not intend to embark on an analysis as to the breadth of the phrase “proper governmental authority”. This would be beyond the scope and necessity of the facts before us.

We do find, nonetheless, that the appearance of the Fire Rescue Squad to provide medical aid and transportation to the Appellee, under the City of Philadelphia’s aegis as parens patriae, would cause that governmental agency (EMT employee) to appear to be a “proper” repository of “governmental authority” allowing for the Appellee to report the motor vehicle accident involving an unidentified/uninsured motor vehicle. It was for the trier-of-fact to weigh the credibility of the claimant/Appellee in regard to whether a report of the accident was communicated to the EMT employee. From the result, it is obvious that the court below believed the Appellee’s account of what transpired. See Dixon, supra. We see. no reason to disturb the finding of the court below in the absence of any indication that the purpose of MVFRL—to prevent fraud—is being compromised. Id.; Hatcher, supra.

No one denies that the Appellee was struck by a hit-and-run vehicle and sustained injuries requiring medical attention documented in the EMT employee’s “Fire Rescue Service Report”, as called for by the City of Philadelphia’s Fire Department forms. In particular, the form completed and signed by the attending EMT employee contained information as to the time the rescue service was dispatched, arrival time at the location of service, name of patient and injuries complained-of. The report also contained the medical services which were performed and that the Appellee was transported to the nearest hospital for follow-up treatment.

With the inability of the Appellee to identify her assailant or the vehicle driven in the assault, any type of subsequent investigation by the police is not guaranteed to have produced a suspect to determine if he/she had insurance allowing for payment to the victim for her injuries.

Consequently, under the particular facts sub judice, we fail to detect how holding that the Appellee’s failure to report the accident to a police officer, in contrast to an EMT employee, advances the preclusion of fraudulent claims. Cf. Calabrese v. Motor Vehicle Accident Indemnification Corp., 43 A.D.2d 970, 352 N.Y.S.2d 221 (1974) (Parole officer, as a matter of law, is a peace officer for purpose of insurance law requiring notice to police within 24 hours of accident); Hanavan v. Motor Vehicle Accident Indemnification Corp., 33 A.D.2d 1100, 308 N.Y.S.2d 114 (1970) (Notification by claimant to State Police that she had been struck by hit-and-run vehicle satisfied reporting requirements of Insurance Law); Rodriques v. Motor Vehicle Accident Indemnification Corp., 54 Misc.2d 361, 282 N.Y.S.2d 625 (1967) (Victim telling hospital guard of accident, which was recorded in hospital records, was sufficient to met “notice to police” requirement under N.Y. Insurance Law).

Accordingly, after assiduously reviewing the facts against the applicable statutory and case law, we reject the claims proffered by the Appellant.

Order affirmed.

JOHNSON, J., files a dissenting opinion.

Judge JOHNSON,

dissenting.

I believe the trial court erred in admitting the hearsay declaration of the emergency medical technician. I also conclude that the Philadelphia Fire Rescue Squad is not a “proper government authority” within the meaning of Section 1702 of the Motor Vehicle Financial Responsibility Law (MVFRL) so as to render the striking vehicle uninsured. For these reasons, I must respectfully dissent.

Out-of-court statements which are offered to prove the • declarant’s state of mind are not within the interdiction of the hearsay rule. Commonwealth v. Smith, 523 Pa. 577, 594, 568 A.2d 600, 609 (1989). Likewise, an out-of-court statement is not hearsay if it is offered to explain a course of conduct. Spotts v. Reidell, 345 Pa.Super. 37, 42, 497 A.2d 630, 633 (1985). The waiver trial in this matter was brief. Counsel for Constitution State Service Company (CSSC) timely objected to any testimony regarding what the emergency medical technician said to Janine Gunter (the claimant) as hearsay. Waiver Trial Transcript, (W.T.T.), October 15, 1992, at 11, R.R. at 27a. The trial court reserved its ruling on the hearsay objection, wanting to first hear what was said. Id. at 12, R.R. at 28a.

The claimant’s counsel then asked the following question on direct examination:

Q. Why did you not go to the police department to file the police report?
A. When I talked—when the guy in the ambulance was talking to me, he took the report and he said he would take care of it.
MS. DICHTER [CSSC’s COUNSEL]: Same objection, Your Honor.
THE COURT: I’ll overrule it. I’ll hear it.
BY MR. SAGOT [CLAIMANT’S COUNSEL]:
Q. He told you he would take care of it?
A. Yes. He said he would take care of it.
MR. SAGOT: Thank you. I have no further questions of this witness.

Id. at 12-13, R.R. at 28a-29a.

Arguably, statements made to the claimant by the emergency medical technician would go to establish the claimant’s state of mind just prior to her being transported to the hospital by a Philadelphia Fire Rescue ambulance. As CSSC correctly points out to this Court on appeal, the claimant’s state of mind, on these facts and when reviewing this statute, is irrelevant.

Our supreme court instructs us that in seeking to invoke the state-of-mind exception to the hearsay rule, the proffered evidence must tend to make a material fact more or less probable, that is to say, the out-of-court statement must be relevant. Commonwealth v. Smith, supra 523 Pa. at 594, 568 A2d at 609. Compare Baker v. Morjon, 393 Pa.Super. 409, 415, 574 A.2d 676, 679 (1990) (state of mind of plaintiff upon learning of casket’s deteriorated condition from third persons irrelevant to suit against defendant where not causally related to defendant’s tortious acts). The only possible fact which would be illuminated by the hearsay evidence before us on this appeal is the reason why the claimant did not report her accident to the police. But an unidentified vehicle can qualify as an uninsured vehicle only if the accident involving the unidentified vehicle has been reported to the police or proper governmental authority. 75 Pa.C.S. § 1702; Jackson v. Pennsylvania Financial Responsibility Assigned Claims Plan, 394 Pa.Super. 274, 575 A.2d 626 (1990). Therefore, the reasons for not reporting the accident to any particular governmental agency, including the police, cannot make the alleged reporting to another agency any more or less probable. I can only conclude that the out-of-court statements relating to what the emergency medical technician would do with the information given to him by the claimant are totally irrelevant.

The majority states that the claimant:

was preoccupied with establishing her state of mind at the time the conversation took place.... She believed the incident would be reported to the police because of the technician’s remarks to that effect.

Majority op. at 300. The majority goes on to conclude:

The linchpin to admissibility is that the remarks were made and not whether the EMT employee carried out his statements to notify the police____ Thus, we hold meritless the hearsay claim raised by the Appellant, concluding that the remarks testified to were both relevant (they increased the probability of the material fact at issue—whether the Appellee communicated to the EMT employee about the “hit and run”) and admissible.

Id. at 300.

The relevancy analysis may precede, but remains separate and apart from, the hearsay analysis. I cannot join my colleagues in believing that statements claimed to be made by the emergency room technician in response to the claimant’s statements, if any, increase the probability that the claimant made those statements. This does not advance a “state-of-mind” analysis. Moreover, the only evidence in the record certified to this Court on the issue of what the claimant said to the technician is her testimony quoted above:

A. When I talked—when the guy in the ambulance was talking to me, he took the report and he ,said he would take care of it.

At trial, the claimant identified Gerald Brown as “the guy in the ambulance.” Brown was not called as a witness, nor was his deposition taken or submitted to the trial court. The claimant did not testify as to what was included in “the report” which she claims to have given to Gerald Brown, and the claimant does not even contend that a written report was ever made by the Philadelphia Fire Rescue Squad. Thus, we are left with a request that we accept the hearsay statement of the technician as increasing the probability of material facts which are found nowhere in the record. The majority would admit the hearsay statements to buttress statements by the claimant which were never placed before the trier of fact. This writer is unable to join in such a conclusion. This argument—that the statement increased the probability of a material fact at issue—is an attempt to find admissibility based upon circumstantial evidence of a fact other than the matter asserted. This is not an argument based upon the “state-of-mind” exception. Where my colleagues advance two disparate arguments, without citation to authority, I am at a loss as to which is intended to support their conclusion that the out-of-court statements regarding a report to the Philadelphia police is both relevant and admissible. I find the statements to be both irrelevant and inadmissible, on the basis that the statements do not advance any material facts and are, consequently, irrelevant to any issue before the trier of fact.

The potential harm is apparent from the analysis of the trial court. The court concluded its Opinion of April 28, 1993, with this paragraph:

The evidence concerning what was said by the paramedic to Ms. Gunter [the claimant] was highly relevant, as it tended to negate the inference that because Ms. Gunter did not report the accident to the police her claim was not legitimate. Therefore, this Court’s ruling admitting the evidence concerning the paramedic’s conversation with Ms. Gunter was not error, as it was not inadmissible hearsay, but rather was admissible as relevant and material to Ms. Gunter’s claim.

Opinion, Glazer, J., April 28, 1993, at 5. The flaw in this analysis is that the trial court, and the majority on this appeal, both find that the Philadelphia Fire Rescue Squad is a “proper government authority” under 75 Pa.C.S. § 1702. With this legal conclusion established, any attempt to report the same incident to another government authority, the Philadelphia Police Department, is rendered unnecessary and immaterial. On this basis alone, I would reverse the judgment of the trial court.

Turning to the other issue raised on this appeal, I conclude that the Philadelphia Fire Rescue Squad is not a proper governmental authority for reporting accidents which involve unidentified motorists. It may be assumed, for purposes of this appeal, that the Fire Department of the City of Philadelphia, and its sub-departments including the Fire Rescue Squad, are part of a governmental entity. I have not found any analysis in the Opinion of my colleagues, however, on the narrow issue of whether either the Fire Department or its Fire Rescue Squad is an “authority” as that word is used in defining an uninsured motor vehicle in 75 Pa.C.S. § 1702. The majority finds that a fire rescue service maintained by a city is a unit of local government. I would not dispute this. This is not sufficient to justify the quantum leap then made by my colleagues in finding it “appropriate to hold that members of Philadelphia’s Fire Rescue Squad ... be considered an integral pari of a ‘governmental authority.’’ ” Majority op. at 239.

The MVFRL includes, as one of its definitions of an uninsured motor vehicle, the following:

§ 1702. Definitions
The following words and phrases when used in this chapter shall have the meanings given to them in this section unless the context clearly indicates otherwise:
"Uninsured motor vehicle.” Any of the following:
(3) An unidentified motor vehicle that causes an accident resulting in injury provided the accident is reported to the police or proper governmental authority and the claimant notifies his insurer within 30 days, or as soon as practicable thereafter ... (emphasis added).

There is no dispute that this matter was not reported to the police. Since the contested out-of-court statement by the emergency medical technician may not be used to establish the truth of what he asserted, there is no evidence that there was any attempt to report it to the police. Therefore, we must find that the accident was reported to the “proper governmental authority” to find an uninsured vehicle to support the claim advanced on this appeal.

It may be helpful to begin by establishing what the legislature could not have intended in using the term “proper governmental authority.” 1 Pa.C.S. § 1922(1). It would be absurd to conclude that the legislature meant to place all bodies or boards authorized by law to enact ordinances or adopt resolutions for a particular municipality on a par with the police for purposes of implementing the MVFRL. See, for example, 42 Pa.C.S. § 102; 53 P.S. § 302. In determining the intention of the General Assembly, we are called upon to consider, among other matters, the mischief to be remedied by the statute and the object to be obtained, as well as the consequences of a particular interpretation. 1 Pa.C.S. § 1921(c)(3), (4), and (6).

The purpose of the requirement that the accident be reported to either the police or proper governmental authority was to prevent fraud and the attempted recovery of benefits in cases where accidents were alleged to have been caused by “phantom” vehicles. Jackson v. Pennsylvania Financial Responsibility Assigned Claims Plan, supra 394 Pa.Super. at 276 n. 2, 575 A.2d at 628 n. 2; Ronca, Sloane and Mundy, Pennsylvania Motor Vehicle Insurance: An Analysis of the Financial Responsibility Law (1986), § 6.5. A proper authority under this rubric would need to be an agency of government with the power to investigate accident claims and the resources to accomplish this task. Part of the purpose in requiring reporting is to allow for the possibility that the hit- and-run operator will be apprehended through effective police work. The inability of a victim of a hit-and-run to identify the assailant or the vehicle, in any particular case, does not militate against a statutory requirement that all alleged hit- and-run incidents be reported in order for the claimant to become eligible for benefits under the MVFRL.

In considering whether the Philadelphia Fire Rescue Squad should qualify as a “proper authority” for reporting purposes, there is much in the record on this appeal which the majority has elected to ignore. Edwin R. Boardman was the driver of the Rescue Squad vehicle which answered the emergency call involving the claimant. His deposition was taken and was included in the record at trial. W.T.T. at 18, R.R. at 34a. Boardman testified that emergency medical technicians do not receive any specific training regarding the investigation of accidents. Transcript of Deposition, Boardman, (T.D.B.), October 13, 1992 at 7, R.R. at 53a. He stated that the E.M.T. personnel do not investigate accidents. Id. Furthermore, he testified that, in the normal course of his duties, he does not take any information regarding the facts of an accident, in terms of who was involved, who may have been at fault, and what specifically might have happened. Id. at 9, R.R. at 55a. In those cases where they may have occasion to inquire as to how fast a vehicle may.have been traveling, that information is forwarded by the E.M.T. to the doctors in the emergency room, to assist in medical management. Id. Boardman testified that an E.M.T. does not ask any questions or take any record of the identity of the vehicles involved in any accident, such as license tag numbers or names of operators of the vehicles. Id.

There is no procedure within the Fire Rescue Squad administration established to report facts of either an injury or an accident to the police department. Id. at 10-11, R.R. at 56a-57a. The police are usually dispatched simultaneously with the fire rescue units. Id. Boardman reiterated that the only thing he ever relates to the police is the name of the patient who is transported to the hospital. Id. at 17, R.R. at 63a. Boardman testified that the job description of an E.M.T. does not include any requirement or expectation that anything is reported to the police. Id. at 18-21, R.R. at 64a-67a.

The Fire Rescue Service Report, a form utilized by the City of Philadelphia Fire Department through its Fire Rescue Squads, does not contain any places for recording information concerning facts surrounding an automotive accident or a hit- and-run. The form does contain blocks to permit the E.M.T. to record the location type where medical service was rendered and the route log (road and weather conditions). There is nothing on the form, not even an open remarks section, to provide for the recording of vehicular information.

The only evidence before the trier of fact negates any suggestion that an emergency medical technician is trained, equipped or authorized to explore the facts surrounding a motor vehicle collision or incident, beyond collecting those facts necessary to administer appropriate medical assistance. There is nothing on the record to suggest that information volunteered to a member of an Emergency Fire Rescue Squad would be transmitted to anybody or any entity not involved in the medical care and treatment of the patient. This being so, how then can the Emergency Fire Rescue Squad qualify as a “proper authority” for the receipt of information concerning a hit-and-run incident?

The cases cited by the majority to support its conclusion are inapposite. The New York cases are easily distinguished from the unique facts presented on this appeal. All of the New York cases involved the proper interpretation of Section 608(b) of the New York Insurance Law which requires a report of the motor vehicle accident to be made within 24 hours or as soon as reasonably possible to a “police, peace or judicial officer in the vicinity or to the commissioner.” Calabrese v. Motor Vehicle Accident Indemnification Corporation, 43 A.D.2d 970, 352 N.Y.S.2d 221 (1974), merely held as a matter of law, without any analysis, that a parole officer is a peace officer within the meaning of § 608(b). Hanavan v. Motor Vehicle Accident Indemnification Corporation, 33 A.D.2d 1100, 308 N.Y.S.2d 114 (1970), held that notifying the New York State Police that one has been struck by an unknown vehicle complies with the § 608(b) statutory requirement. To the same effect, Rodriguez v. Motor Vehicle Accident Indemnification Corporation, 54 Misc.2d 361, 282 N.Y.S.2d 625 (1967), held that a hospital special patrolman, who wore a shield and a blue uniform similar to that of a New York City policeman and who possessed the duty and right to arrest was a “peace officer” for the purpose of § 608(b), “particularly where the rights of a non-English speaking litigant are concerned.”

None of the New York cases went further than to consider whether a particular individual met the requirements of a “peace officer” or a “police officer” under the statute requiring reporting to a “police, peace or judicial officer.” None of the New York cases considered, or discussed, whether the employing authority or entity was a “proper.... authority” under New York law for reporting purposes. Each of the cases were devoid of any dispute that a hit-and-run was reported; the only issue was whether the individual receiving the report was a proper individual, under the act, to receive the report.

We need not subscribe to the argument advanced by CSSC that the Pennsylvania Department of Transportation would be the only “proper governmental authority” other than the police to whom an accident could be reported. Rejection of that argument, however, provides no basis for declaring the Philadelphia Fire Rescue Squad as a “proper government authority” under the MVFRL. There is nothing inconsistent with espousing a liberal interpretation of the MVFRL while rejecting the suggestion that the Fire Rescue Squad is a contemplated reporting alternative to the Philadelphia Police Department on the facts here presented.

I am willing to examine the interpretation of the phrase “proper governmental authority” on a case-by-case basis. It is enough to conclude, on the record before us, that the Philadelphia Fire Rescue Squad falls far short of satisfying the threshold requirements for inclusion in that category. The purpose of the section we now review was to prevent fraud and the collection of benefits in cases where accidents were alleged to have been caused by “phantom” vehicles. The declaration of Fire Rescue Squads as proper authority for reporting hit-and-run accidents, where the squads have never deemed it to be within their responsibility or authority to either receive or report such information, does nothing to advance that legislative purpose.

Accordingly, I dissent. I would reverse the judgment and direct entry of judgment in favor of the Constitution State Service Company.

      . Pa.R.App.P. 301 requires that an order be reduced to judgment in advance of taking an appeal. In this case, even though the Appellant praeciped to reduce the order denying post-trial motions to judgment after the appeal was perfected, the reduction to judgment satisfies the requirement of Rule 301 to allow for our review of the case.

      . Counsel for the Plaintiff stated at trial that the EMT employee who treated the Plaintiff was on disability and a continuance could not be obtained to have him appear as a witness at trial.

      . See 75 Pa.C.S.A. § 3746(b) (Duty of occupant to give notice of accident if driver disabled).

      . Id. at § 3747 (Written report to Department of Transportation by driver or owner if police do not investigate accident).


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    638 A.2d 244
    COMMONWEALTH of Pennsylvania v. Richard C. YOUNG, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 7, 1994.
    Filed March 9, 1994.

      Kyle W. Rude, Asst. Public Defender, Bellefonte, for appellant.
    April L. Chamberlain, Asst. Dist. Atty., Bellefonte, for Com., appellee.
    Before CIRILLO, OLSZEWSKI and HESTER, JJ.
   OLSZEWSKI, Judge:

Richard Young appeals from the judgment of sentence. He asserts that the trial court erred in granting the Commonwealth’s motion in limine to preclude him from impeaching Commonwealth witness Tina Ward with her 1989 conviction for summary retail theft. We agree.

Young’s conviction stems from the robbery of a convenience store in Centre County. Larry Lamey, the store clerk, testified that a white male wearing a black hooded sweatshirt and having black rectangles marked on the knuckles of his left hand robbed him on November 23, 1991. He further testified that the robber’s face was obscured by the hood and that he could not identify him. After giving the man the money from the cash register, Lamey saw him run out the door and to the left. A teenager in the area of the store on the night of the robbery testified to seeing a blue car with a male passenger wearing dark clothes. He identified Richard Young as looking like the man he saw in the passenger seat of the blue car.

Tina Ward testified that, along with other people, she lived with Young and her boyfriend in George Mincer’s trailer from the middle of December 1991 until the beginning of February 1992. During this time, Young told her he had robbed a store. She also testified that Young had a tattoo on his left hand which he would occasionally black out with a magic marker. Ward testified that she delayed in reporting what she knew to the police because Young had threatened her. Mincer testified that he gave the police a black hooded sweatshirt that Young had left at his trailer. That sweatshirt was admitted into evidence.

In anticipation of Young’s alibi defense, the Commonwealth presented Dale Young, defendant Young’s cousin, to testify that he was- not at defendant’s mother’s playing cards with defendant the night of the robbery and that he had told defendant he would not lie for him. Dale also testified that he had asked defendant if he robbed the store and defendant said yes. On cross-examination, Dale admitted to being friends with Tina Ward and that Ward and her boyfriend had stayed with him and his family for awhile.

Defendant Young denied robbing the store and testified that he was at his mother’s with his cousin and other family members. He further testified that Ward had threatened to “get him” when he refused her sexual advances and he denied telling Ward and his cousin that he had robbed the store. Also, Young denied asking anyone to lie about their whereabouts and denied owning the black sweatshirt. After hearing the evidence, a jury convicted Young of robbery, making terroristic threats and illegally possessing a firearm as a former convict.

Young asserts that the trial court erred in holding that Ward’s summary conviction for retail theft could not be used to impeach her credibility. “[Ejvidence of prior convictions can be introduced for the purpose of impeaching the credibility of a witness if the conviction was for an offense involving dishonesty or false statement, and the date of conviction or the last day of confinement is within ten years of the trial date.” Commonwealth v. Randall, 515 Pa. 410, 415, 528 A.2d 1326, 1329 (1987). While Randall concerned impeaching defendants, this rule applies equally to all witnesses. See Commonwealth v. Smith, 380 Pa.Super. 619, 633-635, 552 A.2d 1053, 1061-1062 & n. 8 (1988), alloc. denied, 525 Pa. 581, 575 A.2d 112 (1990); Commonwealth v. Williams, 371 Pa.Super. 509, 513, 538 A.2d 557, 559 (1988), rev’d on other grounds, 524 Pa. 404, 573 A.2d 536 (1990). Randall does not preclude the use of summary convictions.

Our research has not revealed any cases which involve the propriety of impeaching a witness with a summary conviction for a crime involving dishonesty or false statement. Cf. Commonwealth v. Bowman, 400 Pa.Super. 525, 583 A.2d 1239 (1990) (holding that since summary offense of driving under suspension is not a crimen falsi, the Commonwealth could not impeach defendant with his prior convictions for that crime); Commonwealth v. Johnson, 301 Pa.Super. 13, 446 A.2d 1311 (holding that victim could not be impeached with her arrest for summary retail theft because there was no indication that the charge had resulted in a conviction), modified on other grounds, 499 Pa. 380, 453 A.2d 922 (1982). We see no reason to adopt a rule prohibiting the use of prior summary convictions of crimes involving dishonesty to impeach the credibility of a witness, particularly when the witness is not the defendant. Since retail theft involves dishonesty and the conviction was less than ten years old, Young should have been allowed to use the conviction to impeach Tina Ward and it was error to grant the Commonwealth’s motion in limine.

The trial court’s error in refusing to allow Young to impeach Ward with her prior conviction was not harmless. In order to be harmless, we must be convinced beyond a reasonable doubt that:

1) the error did not prejudice the defendant or the prejudice was de minimis; or 2) the erroneously admitted evidence was merely cumulative of other, untainted evidence which was substantially similar to the erroneously admitted evidence; or 3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.

Commonwealth v. Williams, 524 Pa. 404, 407-409, 573 A.2d 536, 538-39 (1990) (citing Commonwealth v. Story, 476 Pa. 391, 410-15, 383 A.2d 155, 164-66 (1978)). This test has not been met. Young testified in his defense that he did not rob the store and that he did not tell Ward that he did. Furthermore, he testified that Ward had threatened to “get” him because he did not return her affections. If Young had been allowed to impeach Ward’s credibility with her conviction for summary retail theft, the jury may have found Ward’s testimony less, and Young’s more, credible. Given that much of the evidence against Young was circumstantial, we cannot say beyond a reasonable doubt that the inability to impeach Ward, who testified that Young admitted committing the robbery, could not have contributed to the verdict.

Judgment of sentence is vacated and the case is remanded for a new trial. Jurisdiction is relinquished.


author: BECK, Judge:

text:
    638 A.2d 247
    John F. O’BRIEN, Jr., and Carol O’Brien, appellants, v. Richard E. MARTIN, A.I.A. & Associates, Logan Square East, Life Care Communities Corp., Daniel J. Keating Corp., Fab III Concrete Corp., and Cornell Iron Co., Inc.
    Superior Court of Pennsylvania.
    Argued Oct. 19, 1993.
    Filed March 10, 1994.

      Jill Fisher, Philadelphia, for appellants.
    Amy F. Loperfido, Philadelphia, for Fab III, appellee.
    Before BECK, TAMILIA and HESTER, JJ.
   BECK, Judge:

This is an appeal from a judgment for plaintiffs-appellants, John F. O’Brien and Carol O’Brien, and against appellee, Cornell Iron Company, Inc., in an action in which appellants sought to recover for injuries sustained by Mr. O’Brien when he fell while performing construction work. Although the O’Briens succeeded in winning a verdict, they now seek a new trial because they contend that numerous trial errors resulted in the jury assessing an unfairly low damage award. We find that under the facts of this case the trial court erred in instructing the jury that Mr. O’Brien was contributorily negligent as a matter of law. Therefore, we reverse and remand for a new trial.

Appellants instituted this action against Richard E. Martin, A.I.A. Associates, Logan Square East, Life Care Communities Corporation, Daniel J. Keating Company, Fab III Concrete Corporation, and Cornell Iron Company, Inc. Mr. O’Brien (hereinafter “appellant”) was employed by the Daniel J. Keating Company as the operator of a freight elevator on a project called Logan Square East (the “project”). Richard E. Martin, A.I.A. and Associates was the architect on the project, Cornell Iron Company, Inc. was a subcontractor responsible for providing and installing a guardrail in the area where Mr. O’Brien fell, and FAB III Concrete Corporation was a subcontractor responsible for placing sleeves in the concrete to allow for installation of the guardrail.

At the time of the accident giving rise to this action, appellant was on the loading dock at the project and was engaged in making arrangements with another tradesman, who was delivering construction materials, regarding loading the materials onto the freight elevator. The supplies were being delivered in a vehicle that was parked in a bay of the loading dock located below where appellant was standing. Because of the noise in the loading dock area, appellant was unable to hear what the tradesman delivering the materials was saying to him. Thus, he attempted to get closer to where the tradesman was standing by walking to the edge of the loading area and then stepping onto a concrete extension or pier, approximately 20 inches wide, that extended off the edge of the dock. Shortly after appellant stepped onto the pier, there was a loud crash in the construction area behind appellant. The noise startled appellant, causing him to lose his balance and fall approximately four feet to a concrete floor below him. He sustained disabling back injuries.

The matter was tried to a jury. Appellant argued that his injuries were caused by the failure of the subcontractors, Cornell and FAB III, properly to design, fabricate and install a guardrail which would have prevented appellant from stepping onto the pier from which he fell. The subcontractors argued that the pier was not intended to be used to stand upon and that appellant was negligent for having done so. They argued that if appellant needed to hear instructions from the other tradesman, he should have proceeded down a ramp located at one end of the loading dock in order to go down to where the tradesman was standing.

Only the names of Cornell, FAB III and Martin were included on the verdict slip. The remaining defendants had been dismissed. Martin, having settled during trial, was submitted to the jury only for purposes of apportionment of liability. The jury returned a verdict in the amount of $214,-000 for appellant John O’Brien. Mrs. O’Brien was awarded nothing on her loss of consortium claim. The jury, having been instructed by the court that appellant John O’Brien was contributorily negligent as a matter of law, allocated 50% causal negligence to him. It allocated 25% to Martin, 25% to Cornell, and 0% to FAB III. After post-trial motions were filed and denied, appellants filed this appeal.

Although appellants raise numerous issues on appeal, we find it necessary to decide only one of them, i.e., that which alleges error in the trial court’s decision to instruct the jury that appellant John O’Brien was contributorily negligent as a matter of law. Since we find that this instruction was error, necessitating the retrial of this case, we need not discuss any of the other alleged grounds for a retrial, which may or may not arise when the new trial we order is conducted.

In reviewing an order denying a motion for a new trial, we determine whether the trial court abused its discretion or committed an error of law. Where the trial court’s jury instructions are at issue, a new trial is appropriate where the instructions were fundamentally in error and might have been responsible for the verdict. Hawthorne v. Dravo Corp., 352 Pa.Super. 359, 508 A.2d 298 (1986).

The portion of the trial court’s charge to the jury that is alleged to have been in error in this- case is as follows:

I will instruct you later that there is such a thing in Pennsylvania law of comparable negligence, that is, a person who sues another for injuries sustained by that person, as in this case, may still recover even if he is himself negligent provided certain percentages are met, and this will be explained to you shortly.
But based on the evidence that has been heard, the court has already determined that in light of the fact that there is evidence admitted by the plaintiff that there was more than one way to get to where he said he had to be to talk to this person he was talking [to] in the course of his work, that there was at least one way which was safer than the one that he chose, perhaps more than one way which was safer, but at least one way was safer than the way that he chose to go to speak to the man that he was talking to, that being the case, the law says as a matter of law a person who chooses of two ways the one which is more dangerous than the other which is safer as a matter of law is negligent and responsible for his injury.

In so charging the jury, the trial court was relying upon what has variously been described in our case law as the “alternate ways” or “choice of ways” doctrine. This court has described the doctrine as follows:

The so-called “choice of ways” rule is simply stated: “Where a person, having a choice of two ways, one of which is perfectly safe, and the other of which is subject to risks and dangers, voluntarily chooses the latter and is injured, he is guilty of contributory negligence----”
The rule requiring a person to select a safe route in favor of a dangerous one is nothing more than a formulation of the general rule that a person is contributorily negligent if his conduct falls short of the standard to which a reasonable person should conform in order to protect himself from harm. However, the rule is not meant to impose unreasonable restrictions on travel..... Thus, to warrant an instruction on “choice of ways”, there must be evidence that the plaintiff made an unreasonable decision which exposed him to a hazard that he knew or should have known existed. There must be evidence of (1) a safe course, (2) a dangerous course, and (3) facts which would put a reasonable person on notice of the danger or actual knowledge of the danger.

Downing v. Shaffer, 246 Pa.Super. 512, 371 A.2d 953, 956 (1977) (citations omitted).

So described, the alternate ways doctrine appears straightforward. However, in applying this general principle to the present case, we must bear in mind several other related principles—some general and some specific. First, it is well-known that contributory negligence, or in present parlance, comparative negligence, may not be found by the court as a matter of law unless the facts so clearly reveal the plaintiffs negligence that reasonable minds could not disagree as to its existence. See, e.g., Gregorius v. Safeway Steel Scaffolds Co., 409 Pa. 578, 582, 187 A.2d 646 (1963); Skalos v. Higgins, 303 Pa.Super. 107, 449 A.2d 601, 604 (1982).

Second, in assessing the negligence of a workman’s conduct on the job, the Supreme Court has specifically enunciated two refinements of the alternate ways doctrine. First, “[in determining the standard of conduct of one who is injured in the performance of his employment, the working conditions and all of the circumstances incident thereto, including his obligation to do his job, must be considered.” Gregorius, 409 Pa. at 584, 187 A.2d at 649; Binder v. Jones & Laughlin Steel Corp., 360 Pa.Super. 390, 520 A.2d 863, 868 (1987). Second, “[w]hen a workman in the discharge of his duties proceeds from a place where it is necessary for him to be to another place where it is necessary for him to go, the law will not proclaim him guilty of contributory negligence if he moves over a route unknown to him, in the exercise of his normal faculties, to be dangerous.” Cooper v. Heintz Mfg. Co., 385 Pa. 296, 307, 122 A.2d 699 (1956). See also Quinn v. Kumar, 437 Pa. 268, 263 A.2d 458 (1970).

Finally, we note that Pennsylvania courts have generally been loath to apply the alternate ways doctrine. As a panel of this court indicated in Oswald v. Stewart, 301 Pa.Super. 463, 448 A.2d 1, 2 (1982), in those very few cases where the doctrine has been applied to find that the plaintiff was contributorily negligent, the danger the plaintiff chose to confront was indisputably obvious. For example, in DeFonde v. Keystone Valley Coal Co., 386 Pa. 433, 126 A.2d 439 (1956), the plaintiffs decedent, a workman, could have walked along a completely safe route at the worksite to get back to his truck, but he chose instead to attempt to dart between a bulldozer and a mechanical shovel machine as they were being started. He was crushed between the two machines. Since it was common knowledge, particularly to workers at the site, that the shovel machine would recoil toward the bulldozer when it was started, the court found the decedent had confronted a danger that was obvious to him instead of taking another clearly safe course. Id. at 436-37, 126 A.2d at 440.

The more common case is that like Quinn v. Kumar, supra, where the court held that it was for the jury to decide whether the alternate ways doctrine should be applied to find a workman guilty of contributory negligence. The workman in Quinn was injured when he took the most expeditious and convenient path to go where he needed to go at the construction site where he worked, even though the route chosen was not the safest one available since it involved walking under a sagging roof structure on which were piled heavy materials. Despite the obviousness of this possible danger, the court still found the contributory negligence of the workman to be a jury question. See also Mattox v. City of Philadelphia, 308 Pa.Super. 111, 454 A.2d 46, 49-51 (1982).

We find no analogy between the facts of this case and the facts of those cases, like DeFonde, where it has correctly been held that the plaintiff chose an obviously dangerous way over a clearly safe one. Here, although appellant could have gone to speak to the other tradesman by proceeding across the loading dock and going down the ramp to the floor below, appellant testified that he did not think standing on the cement pier was dangerous, as long as one was careful when doing so. Appellant stated that he did not think standing on the pier was a safety hazard “because it was commonplace,” and he pointed out that construction workers like himself were expected to be able to perform their work under circumstances different from those confronted in other types of work. Moreover, appellant testified that he had seen other workers safely walk on the pier after climbing up to it by means of narrow planks that had been placed between the pier and the loading bay floor below it. Finally, he testified that he had understood that there were plans for a ladder to be built from the floor up to the pier, thus specifically enabling people to get up to the pier, and that this led him to believe that it was not dangerous to be on the pier.

This is not a situation where the facts so clearly bespeak negligence by the plaintiff that the issue should have been removed from the jury. The danger ultimately confronted by appellant, i.e. that of falling off the pier, was not so patently obvious that the jury should have been instructed that appellant was negligent as a matter of law for briefly standing on the pier instead of proceeding the longer way around and going down the ramp to be able to talk to the other tradesman. The jury should have been permitted to decide whether appellant’s decision to stand on the pier for a short time to make arrangements necessary for the performance of his job was negligent.

We reverse the judgment of the trial court and remand for a new trial. Jurisdiction is relinquished.

      . Although no judgment was entered prior to the filing of the notice of appeal, upon subsequent order of this court a judgment was entered on the jury’s verdict and we relate this technically premature appeal forward to the date of that judgment. See Pa.RA.P. 905.


author: HESTER, Judge:

text:
    638 A.2d 250
    ERIE INSURANCE EXCHANGE v. Bryan LAKE, Kevin Stover, Lorraine Stover, William P. Sherman, Executor of the Estate of William W. Sherman, and Ellen D. Sherman, William P. Sherman and Mary J. Sherman, Administrator and Administratrix, Respectively, of the Estates of Jarrod S. Sherman and Justin L. Sherman, William P. Sherman and Mary J. Sherman, Individually and Joshua Ellis, Appellants.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1993.
    Filed March 14, 1994.

      Joseph E. Buckley, Jr., Brookville, for appellants.
    John F. Mizner, Erie, for Erie Ins., appellee.
    Before DELSOLE, TAMILIA and HESTER, JJ.
   HESTER, Judge:

Appellants herein are Bryan Lake, Kevin Stover, Lorraine Stover, William P. Sherman, in his capacity as executor of the Estate of William W. Sherman and Ellen D. Sherman, William P. and Mary J. Sherman, in their capacity as co-administrators of the estates of Jarrod and Justin L. Sherman, William P. Sherman, individually, Mary J. Sherman, individually, and Joshua Ellis. The appeal is from the order entered June 22, 1993, granting summary judgment to Erie Insurance Exchange. The issue presented is whether an insurer can rescind a policy procured by fraud as against innocent third parties when such rescission occurs sixty days after the policy was issued. We are constrained to conclude that under current, binding precedent of this court, an insurer cannot rescind the policy more than sixty days after its issuance when coverage is sought by innocent third parties who did not participate in fraud to procure the policy. Accordingly, we reverse the grant of summary judgment to appellee and remand for a determination of the amount due under the policy.

The facts are not in dispute. In 1989, Kevin Stover was operating a Ford F-150 pick-up truck insured by appellee. He was intoxicated and collided with a vehicle being operated by William Sherman. The Sherman vehicle contained William, his wife, Ellen, and three of their grandchildren. William and Ellen were killed. Two of the grandchildren, Jerrod and Justin, sons of William P. and Mary J. Sherman, also were killed in the accident. The other grandchild, Joshua Ellis, who is the son of Joyce Ann Sherman Christy, survived but sustained serious injuries.

The insurance policy issued on the pick-up truck admittedly was procured through fraud. Bryan Lake was the alleged owner of the truck and obtained the insurance. However, Stover and Lake, who was his friend, had an arrangement whereby Lake pretended that he owned the truck, but Stover was the actual driver and always retained possession of the truck. The depositions of Lake and Stover establish that Lake knew that Stover could not obtain automobile insurance due to his driving history, which included a conviction for driving while under the influence. Lake also misrepresented to one of appellee’s agents that Lake was to be the owner of the Ford pick-up truck. Stover alone used the truck and paid the purchase price. He also paid Lake the insurance premiums, which Lake then forwarded to appellee. This same scheme had been used with two previous vehicles that actually were owned by Stover but which Lake told appellee that he owned. Appellee discovered the arrangement after this tragic accident, which was not within sixty days of when appellee issued the policy of insurance on the pick-up truck involved.

The issue presented in this appeal is whether appellee had the ability to rescind the policy after sixty days of its issuance. We conclude that two recent decisions of this court preclude recission under the circumstances even though clear fraud was perpetrated. Powell v. Walker, 428 Pa.Super. 31, 630 A.2d 16 (1993); Strickler v. Huffine, 421 Pa.Super. 463, 618 A.2d 430 (1992).

In Strickler, the driver procured a policy of insurance and misrepresented his driving record. In Powell, the driver responsible for an automobile accident had rented a car and stated that he did not intend to use the car for a taxi. However, the driver did use the car for a taxi and intentionally misrepresented this fact on the application for insurance. On appeal to this court, the insurer argued that it should be able to rescind the policy based upon the fact the driver had misrepresented his intended use of the car by stating that he intended it for personal use only.

In both cases, the insurer attempted to rescind the policy more than sixty days after it had been issued. In both cases, we held that recission was unavailable after that period where an innocent, third party, as opposed to the insured who misrepresented the facts, was seeking the coverage provided by the policies.

Applying the plurality opinion of the Supreme Court in Metropolitan Property & Liability Insurance Co. v. Insurance Commissioner, 517 Pa. 218, 535 A.2d 588 (1987), we held:

In Metropolitan Prop. & Liab. Ins. Co. v. Insurance Comm’r (Bonnie Beck), 517 Pa. 218, 535 A.2d 588 (1987) (plurality) [hereinafter “Bonnie Beck”], our Supreme Court held that an automobile insurer may not rescind an automobile insurance policy upon learning that the application for insurance contained material misrepresentations. In the Opinion Announcing the Judgment of the Court, Justice McDermott reasoned that the General Assembly intended to preempt the common law right of rescission by enacting a comprehensive process for insurance companies to cancel automobile insurance policies due to misrepresentations by an applicant. See 40 P.S. §§ 1008.1-1008.11. Justice McDermott’s plurality opinion explained that the legislature had amended the statute to provide for structured cancellation, even when
... the insured has concealed a material fact, or has made a material allegation contrary to fact, or has made a misrepresentation of a material fact and that such concealment, allegation or misrepresentation was material to the acceptance of the risk by the insurer.
40 P.S. § 1008.4(3). Therefore, according to the plurality, instead of having the right to rescind the insurance contract, an automobile insurer in Pennsylvania would only be able to cancel the policy, thereby remaining liable for injuries and damages incurred before the cancellation.
The Bonnie Beck plurality drew a concurrence, written by Chief Justice Nix and joined by Justices Flaherty and Papadakos, which agreed that the insurers in that case were not entitled to rescind, but opined that Justice McDermott’s opinion too broadly construed the legislation as preempting the common law right to rescission. Chief Justice Nix and the two Justices who joined him found a misrepresentation as to driving record immaterial to property damage caused by vandalism.
The view of Chief Justice Nix, that the statutory scheme on cancellation did not preclude the right to rescind, prevailed, to a limited extent. In Klopp v. Keystone Ins. Co., 528 Pa. 1, 595 A.2d 1 (1991), our Supreme Court decided the issue of “whether the legislature intended to exclude remission altogether as a remedy by the passage of Act 78.” Id. at 6, 595 A.2d at 3. The court held that “Act 78 does not abrogate an automobile insurer’s common law right to rescind a policy for sixty days after the policy is written.” Id. Quoting a portion of the statute that provided: “Nothing in this act shall apply: (3) To any policy of automobile insurance which has been in effect less than sixty days,” the Supreme Court held that the insurer was entitled to enforce all of its common law remedies until the statutory scheme applies. Id. at 6-7, 595 A.2d at 3, quoting 40 P.S. 1008.6(3).
The court in Klopp did not decide or opine whether the right to rescind applies beyond sixty days after the effective date of the policy. Nonetheless, a recent Superior Court decision holds that an automobile insurer has no right to rescind a policy after sixty days in order to deny a claim of an innocent third party:
The outcome of the instant case is not controlled by either Klopp or Shemory v. Keystone Ins. Co., 420 Pa.Super. 405, 616 A.2d 1036 (1992), however. Royal sought neither cancellation nor rescission within the prescribed sixty day period. Although there is some dispute as to the effective date of the binder issue to Mr. Huffine, the certified record discloses that it was effective either on the 24th or 25th of April 1985. That the accident underlying the instant appeal occurred on June 20th, fifty-seven days into the binder period, is irrelevant. Royal did not attempt either to cancel the binder or seek rescission until July 28,1985, well over sixty days after the binder’s April effective date. Within the parameters defined by Klopp and explicated by Shemory, Royal Insurance Company failed to act on a timely basis to protest its rights and is therefore ineligible to receive common law rescission.

Strickler v. Huffine, 421 Pa.Super. 463, 618 A.2d 430, 433-34 (1992). Therefore, within sixty days, an automobile insurer can rescind an insurance policy for material misrepresentation. See Klopp, supra (first party); Shemory, supra (third party). However, after sixty days, in a contest between a third party and a defendant’s liability insurer, the insurer is limited to the cancellation process provided by the insurance statute. Strickler, supra.

Powell v. Walker, supra, 428 Pa.Super. at 36-38, 630 A.2d at 19-20 (footnotes omitted).

Appellee argues that these two cases are distinguishable since the fraud therein, misrepresentation of a driving record, readily was discoverable through a check of driving records. It contends that the fraud in this case was not ascertainable except through extensive investigation. It posits that it is unfairly burdensome to the insurance industry to require it to conduct such investigations.

However, our review of the cases compels us to conclude that this distinction cannot be made. The insured in Powell misrepresented his intended use of the vehicle, just as the insured in this case. In Powell, the fraud did not involve misrepresentation of driving history which can be discovered through a check of records with the Department of Transportation. We held in Powell that recission nonetheless was not available to an insurer as against an innocent third party.

Furthermore, neither Powell nor Strickler premise their holdings on whether the fraud is readily discoverable. Both cases provide that where an innocent, third-party is involved, the legislature has provided through enactment of 40 P.S. § 1008.4(3) that an insurer cannot rescind a policy sixty days following its issuance. These holdings are controlling precedent upon this panel. Appellee’s remedy lies with our Supreme Court.

In accordance with the foregoing, insofar as the order grants summary judgment against Bryan Lake and Kevin Stover, it is affirmed. Insofar as the order grants summary judgment against Lorraine Stover, William P. Sherman, in his capacity as executor of the Estate of William W. Sherman and Ellen D. Sherman, William P. and Mary J. Sherman, in their capacity as co-administrators of the estates of Jarrod and Justin L. Sherman, William P. Sherman, individually, Mary J. Sherman, individually, and Joshua Ellis, it is reversed. Case remanded for proceedings consistent with this adjudication. Jurisdiction relinquished.


author: HOFFMAN, Judge.

text:
    638 A.2d 253
    Ernest RIVELLO, Appellant, v. NEW JERSEY AUTOMOBILE FULL INSURANCE UNDERWRITING ASSOCIATION and Electronic Data Systems and HCM Claim Management Corporation and Terry Seningen and Charles Weatherby.
    Superior Court of Pennsylvania.
    Argued Oct. 5, 1993.
    Filed March 15, 1994.

      Allen L. Feingold, Philadelphia, for appellant.
    Dennis Veneziale, Philadelphia, for appellees.
    Before POPOVICH, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge.

This is an appeal from the July 23, 1992 entry of judgment in favor of appellees, New Jersey Automobile Full Insurance Underwriting Association (hereinafter “JUA”), Electronic Data Systems (hereinafter “EDS”), HCM Claim Management Corporation (hereinafter “HCM”), Terry Seningen and Charles Weatherby, following the trial court’s June 25, 1992 order sustaining appellees’ preliminary objections and dismissing appellant’s, Ernest Rivello, complaint for lack of in personam jurisdiction over appellees. Appellant presents the following question for our review:

Whether personal jurisdiction may be asserted -within the Commonwealth over a nonresident insurer which tortiously adjusts a loss incurred -within the Commonwealth?

Appellant’s Brief at 3. For the reasons set forth below, we affirm.

The relevant facts, as stated by the trial court, are as follows:

On or about November 2, 1990, [appellant] was involved in an automobile collision in the vicinity of Third and Chestnut Streets in Philadelphia, PA. On February 27, 1991, [appellant], a resident of New Jersey, Filed suit in the Court of Common Pleas of Philadelphia County [against appellees JUA and EDS] to recover damages to his vehicle under an automobile insurance policy issued by [EDS], the servicing agent for [JUA]. [Appellant] claimed that [JUA and EDS] improperly refused to honor [appellant’s] claim arising out of his accident in Philadelphia and therefore owed [appellant] coverage and punitive damages for having denied coverage.
[JUA and EDS] filed preliminary objections to the complaint before [the trial court] arguing that since all parties were residents of New Jersey, and the policy was issued under the authority of New Jersey law, there had been alleged no connection with Pennsylvania sufficient to allow Pennsylvania’s courts to acquire in personam jurisdiction over [JUA and EDS]. [The trial court], in its order of June 5, 1991 sustained [JUA and EDS’] preliminary objections and dismissed [appellant’s] claim for lack of in personam jurisdiction over [JUA and EDS]. That order was affirmed on appeal by the Superior Court of Pennsylvania on September 16, 1992. [See Rivello v. N.J. Auto. Full Ins., 419 Pa.Super. 235, 615 A.2d 342 (1992).]
On March 26, 1992, [appellant] filed another complaint against JUA and EDS in which [appellant] also joined [HCM], a servicing company, and individual employees of HCM, Terry Seningen and Charles Weatherby as defendants. This claim arises out of the same incident as the February 27, 1991 claim, that being the November 2, 1990 automobile collision. All three newly joined defendants are located or have listed as their addresses locations in New Jersey.
This Court issued an order on June 2, 1992 sustaining [appellees’] preliminary objections and dismissing [appellant’s] complaint for lack of in personam jurisdiction.

Trial Court Opinion, May 20, 1993, at 2. This timely appeal followed.

Initially, we note that “when preliminary objections, if sustained, would result in the dismissal of an action, such objections should be sustained only in cases which are clear and free from doubt.” Barber v. Pittsburgh Corning Corp., 317 Pa.Super. 285, 302-303, 464 A.2d 323, 332 (1983) (citation omitted), cert. denied, Charter Consolidated, Ltd. v. Barber, 467 U.S. 1205, 104 S.Ct. 2387, 81 L.Ed.2d 346 (1984). In addition, “when deciding a motion to dismiss for lack of personal jurisdiction] the court must consider the evidence in the light most favorable to the nonmoving party.” Id. at 303, 464 A.2d at 332 (citation omitted). However, once the moving party has supported his objection to jurisdiction, the burden of proof shifts to the party asserting jurisdiction. Scoggins v. Scoggins, 382 Pa.Super. 507, 514, 555 A.2d 1314, 1318 (1989). With these standards in mind, we will proceed to the merits of this appeal.

Pennsylvania courts may exercise two types of personal jurisdiction over non-resident defendants:

Jurisdiction over a non-resident defendant may be based either upon the specific acts of the defendant which gave rise to the cause of action, or upon the defendant’s general activity within the forum state.

Skinner v. Flymo, 351 Pa.Super. 234, 239, 505 A.2d 616, 619 (1986) (citations omitted). In Pennsylvania, general jurisdiction is conferred by 42 Pa.C.S. § 5301 which provides, in pertinent part:

(a) General rule.—The existence of any of the following relationships between a person and this Commonwealth shall constitute a sufficient basis of jurisdiction to enable the tribunals of this Commonwealth to exercise general personal jurisdiction over such person ... and to enable such tribunals to render personal orders against such person or representative:
(2) Corporations.—
(iii) The carrying on of a continuous and systematic part of its general business within this Commonwealth.

Id.

In his brief, appellant points out that as JUA conducts business in Pennsylvania by virtue of its defense of actions brought against its insureds and as JUA has many claims pending arising from accidents in Philadelphia, JUA has sufficient minimum contacts with Pennsylvania to establish personal jurisdiction. However, in Rivello v. N.J. Auto. Full Ins., 419 Pa.Super. 235, 615 A.2d 342 (1992), appeal denied, 534 Pa. 640, 626 A.2d 1158 (1993), this court held that “as a statutory creature of the New Jersey legislature which created it to provide automobile insurance to those New Jersey citizens unable to obtain coverage for private earriers[,] ... [JUA] d[oes] not have the minimum contacts with Pennsylvania to subject it to the personal jurisdiction of the Pennsylvania courts.” Id. at 237, 626 A.2d at 343 (citing Colmon v. Maryland Auto. Ins. Fund, 393 Pa.Super. 313, 574 A.2d 628 (1990), appeal denied, 527 Pa. 591, 588 A.2d 912 (1990)). Accordingly, it is clear that Pennsylvania does not have any general personal jurisdiction over JUA.

Regarding EDS and HCM, although appellant presented evidence that they handled claims for JUA and some of those claims involved accidents occurring in Pennsylvania, see Deposition of Terry Seningen, May 8, 1992, there is no evidence demonstrating the extent to which EDS and HCM’s general business is devoted to Pennsylvania claims. Hence, we do not have a sufficient basis to make a finding of general personal jurisdiction over EDS and HCM. See Jacobs v. Lakewood Aircraft Serv., Inc., 493 F.Supp. 46, 50 (E.D.Pa.1980) (“The burden is on plaintiff to support jurisdiction and it cannot be done by guesswork.”). Finally, there is no general jurisdiction over Terry Seningen and Charles Weatherby as they were not present in the Commonwealth at the time of service, they are not domiciled in Pennsylvania and they did not consent to Pennsylvania jurisdiction. See 42 Pa.C.S. § 5301(a)(1). Since there is no evidence of general personal jurisdiction over áppellees, we will now consider appellant’s claims of specific personal jurisdiction under 42 Pa.C.S. § 5322.

Appellant first contends that 42 Pa.C.S. § 5322(b) confers personal jurisdiction over appellees as appellees insured appellant against losses resulting from an accident which occurred in Pennsylvania, and as appellees represented to appellant that they would prepare appellant’s defense and intentionally failed to do so. We disagree.

Preliminarily, we point out that the fact that JUA is obligated to cover losses relating to an event occurring in Pennsylvania is not sufficient to support a finding of personal jurisdiction. Rivello v. N.J. Auto. Full Ins., 419 Pa.Super. 235, 615 A.2d 342 (1992) (appellant brought an action against JUA and EDS for their alleged failure to provide appellant with coverage for the damage sustained by his automobile in the November 2, 1990 accident which the trial court properly dismissed for lack of personal jurisdiction over JUA and for failure to state a cause of action against EDS). Accordingly, in the instant action, JUA’s failure to provide appellant coverage by way of paying for his defense in an action brought against appellant in Pennsylvania does not confer personal jurisdiction over JUA. Regarding EDS and HCM, as servicing carriers, they have no liability for claims or policies written by JUA and, therefore, they are immune from any actions brought under the policy. Rivello at 237, 615 A.2d at 343.

Appellant contends, nonetheless, that as appellees represented that they would defend appellant and negligently or intentionally failed to do so, appellees have the requisite minimum contacts with Pennsylvania to establish personal jurisdiction pursuant to 5322(b). We disagree.

42 Pa.C.S. § 5322(b) provides as follows:

[T]he jurisdiction of the tribunals of this Commonwealth shall extend to all persons ... to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contact •with this Commonwealth allowed under the Constitution of the United States.

Id. Moreover, in order to obtain jurisdiction under section 5322(b), the acts which form the basis of a plaintiff’s claim of jurisdiction must give rise to the plaintiff’s cause of action against defendant. See 42 Pa.C.S. § 5322(c). Accordingly, we must determine whether the alleged negligent or intentional misrepresentation of appellees forms the basis for any legitimate cause of action brought by appellant against appellees.

It is clear that appellees’ alleged intentional misrepresentation underlies appellant’s cause of action in fraud. However, after a careful review of appellant’s complaint, we find that appellant has failed to plead three of the five requisite elements of fraud. Specifically, appellant does not allege that he justifiably relied upon appellee’s alleged misrepresentation, that appellees intended to induce appellees to rely upon the alleged misrepresentation and that the damage to ' appellant was a proximate result of the alleged misrepresentation.

Regarding appellant’s causes of action in negligence and infliction of emotional distress, it is uncertain whether appellees’ misrepresentation forms the basis of these claims. Finally, it is clear that appellees’ misrepresentation does not underlie appellant’s contract claim. Accordingly, as appellees’ alleged acts of negligent or intentional misrepresentation do not give rise to a valid cause of action brought by appellant, they will not support a finding of jurisdiction under section 5322(b).

Appellant next claims that the trial court erred in failing to consider the deposition testimony of Terry Seningen, an employee of HCM, which demonstrates that JUA has sufficient minimum contacts with Pennsylvania to confer personal jurisdiction over JUA. Specifically, appellant asserts that the testimony shows that JUA conducts business in Pennsylvania by virtue of its defense of actions brought against its insureds and that JUA has many claims pending arising from accidents in Pennsylvania. However, as mentioned above, these contacts are not sufficient to confer either general or specific jurisdiction over JUA. Hence, any failure on behalf of the trial court to consider this testimony could not have prejudiced appellant and, therefore, this claim is spurious.

Finally, appellant contends that the trial court improperly dismissed appellant’s claims against EDS, HCM, Terry Seningen and Charles Weatherby on the basis that they were immune from suit. Specifically, appellant argues that as appellees’ claim of immunity was raised by way of preliminary objection rather than an affirmative defense to the complaint, such a claim was not properly before this court. We disagree.

In Bloom v. DuBois Regional Medical Ctr., 409 Pa.Super. 83, 597 A.2d 671 (1991), this court held that “where the defense [of immunity] is raised by preliminary objections and this procedure is not objected to, the question of immunity from suit may be decided.” Id. at 90 n. 4, 597 A.2d at 675 n. 4. Here, we can find no evidence that appellant objected to appellees’ defense of immunity in any proceedings before the trial court. Accordingly, we find that the trial court properly considered appellees’ defense of immunity. We affirm the entry of judgment.

Judgment affirmed.

      . Specifically, appellant alleged causes of action in contract, negligence, infliction of emotional distress and fraud.

      . As agents of HCM, Terry Seningen and Charles Weatherby share HCM’s immunity.

      . In order to establish a cause of action in fraud, a plaintiff must plead the following elements with particularity:
      (1) a misrepresentation; (2) a fraudulent utterance thereof; (3) an intention by the maker to induce the recipient thereby; (4) justifiable reliance by the recipient on the misrepresentation; and (5) damage to the recipient as a proximate result of the misrepresentation.

        Bash v. Bell Telephone Co., 411 Pa.Super. 347, 358-59, 601 A.2d 825, 831 (1992) (citations omitted); see Pa.R.C.P. 1019(b).

      . Although it is clear that appellees’ failure to defend appellant forms the basis for these two causes of action, as mentioned above, this is not sufficient to confer personal jurisdiction over appellees.

      . Appellant also contends that appellees’ alleged investigation of appellant’s loss within Pennsylvania supports his claim of personal jurisdiction under § 5322(b). However, as none of appellant’s causes of action arise out of this act, 42 Pa.C.S. § 5322 does not provide personal jurisdiction over appellees as a result of this activity.
      In addition, appellant argues that the fraudulent acts of appellees confer jurisdiction over appellees under § 5322(a)(4). We disagree. As with § 5322(b), in order to obtain jurisdiction under § 5322(a)(4), it must be established that the acts which form the basis of a plaintiff's claim of jurisdiction also give rise to the plaintiff's cause of action against defendant. Hence, as appellees’ acts of intentional misrepresentation do not directly support a cause of action brought by appellant, this claim must fail.