author: KELLY, Judge:

text:
    532 A.2d 862
    SANITARY SEWER AUTHORITY OF the BOROUGH OF SHICKSHINNY, Appellee, v. DIAL ASSOCIATES CONSTRUCTION GROUP, INC., Appellant.
    Superior Court of Pennsylvania.
    Submitted June 16, 1987.
    Filed Oct. 19, 1987.

      Frederick S. Wolf, Lebanon, for appellant.
    Anthony B. Panaway, Wilkes-Barre, for appellee.
    Before MONTEMURO, KELLY and CERCONE, JJ.
   KELLY, Judge:

In this appeal we must determine whether the trial court acted properly in ordering a stay of an arbitration proceeding brought by the appellant, Dial Associates Construction Group (“Dial Associates”), against appellee, Sanitary Sewer Authority of the Borough of Shickshinny (“the Sewer Authority”). We reverse.

On June 11, 1984, the Sewer Authority and Dial Associates entered into a contract for sewer construction in the Borough of Shickshinny. The contract provided that all claims and disputes arising out of the contract would be settled by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association. A performance bond, guaranteeing the Sewer Authority that the project would be completed by Dial Associates in accordance with the contract, was issued by the United States Fidelity and Guaranty Company (“USF & G”).

On December 10, 1985, the Sewer Authority brought suit under the performance bond against USF & G. The suit, brought in the Luzerne County Court of Common Pleas, alleged that Dial Associates had breached the construction contract, and that USF & G was therefore liable on the bond. In March 1986, USF & G joined Dial Associates as an additional defendant, alleging that, should the Sewer Authority prevail in its suit on the bond, USF & G would be entitled to indemnification from Dial Associates.

On July 28, 1986, a second action was instituted. Dial Associates filed for arbitration against the Sewer Authority with the American Arbitration Association, seeking damages for an alleged breach of the sewer construction contract.

Two months later, on September 80, 1986, the Sewer Authority filed a petition in the Luzerne County Court of Common Pleas, requesting a stay of the arbitration matter pending final resolution of the common pleas action. At the time the Sewer Authority filed its petition, preliminary objections had been decided against USF & G in the common pleas action, and USF & G had filed an answer; Dial Associates had filed neither preliminary objections nor an answer to the complaint joining it as an additional defendant. The trial court, “[considering the time and effort already consumed in the lawsuit instituted in the [court of common pleas],” held that “a termination of that suit and the instigation of arbitration proceedings would be an unnecessary burden on both ... Sewer Authority, the other Defendants in that suit, and the Common Pleas Court.” (Trial ct.op. at 4). Accordingly, the trial court granted the petition, and stayed the arbitration proceeding.

On appeal, Dial Associates asserts that the trial court erred in granting the stay without first determining whether the claim brought by Dial was, pursuant to the contract, subject to arbitration. According to Dial Associates, under 42 Pa.C.S.A. § 7304(b) and the relevant caselaw, in determining whether such an arbitration stay request should be granted, a court must limit its inquiry to the question of whether the parties agreed that the claim would be determined by arbitration; only if the court determines that the claim or dispute does not fall within the arbitration clause of the contract may the petition for a stay be granted.

The relevant statute, 42 Pa.C.S.A. § 7304(b), provides:

§ 7304. Court proceedings to compel or stay arbitration
* * * # # #
(b) Stay of arbitration.—On application of a party to a court to stay an arbitration proceeding threatened or commenced the court may stay an arbitration on a showing that there is no agreement to arbitrate. When in substantial and bona fide dispute, such an issue shall be forthwith and summarily tried and determined and a stay of the arbitration proceedings shall be ordered if the court finds for the moving party. If the court finds for the opposing party, the court shall order the parties to proceed with arbitration.

(Emphasis added). When one party to an agreement to arbitrate seeks to enjoin the other from proceeding to arbitration, judicial inquiry is limited to the questions of whether an agreement to arbitrate was entered into and whether the dispute involved falls within the scope of the arbitration provision. Muhlenberg Twp. School District Authority v. Pennsylvania Fortunato Construction Co., 460 Pa. 260, 262, 333 A.2d 184, 186-7 (1975); Wolf v. Baltimore, 250 Pa.Super. 230, 234, 378 A.2d 911, 912 (1977). Accord: Kardon v. Portare, 466 Pa. 306, 353 A.2d 368 (1976) ; Hoffman v. Gekoski, 250 Pa.Super. 49, 378 A.2d 447 (1977) . In accordance with the general policy favoring the arbitration of contractual differences, an order enjoining arbitration of a particular grievance should not be granted unless it can be said with positive assurance that the agreement involved is not susceptible of an interpretation that covers the asserted dispute. Wolf v. Baltimore, supra, 378 A.2d at 912, citing Lincoln Sys. of Educ. v. Lincoln Ass’n of Univ. Professors, 467 Pa. 112, 354 A.2d 576 (1976).

The trial judge in the instant case did not address the question of whether the dispute involved in the arbitration action falls within the scope of the arbitration provision. The court distinguished Section 7304(b) and the above-cited cases, stating that they pertain only to the manner in which a court may decide the validity and enforceability of an arbitration clause, rather than the enforceability of an arbitration clause once suit has been filed and commenced in the court of common pleas. The trial court stated further that the real issue in the instant case is whether, after a common pleas suit has been filed, the court is required to divest itself of jurisdiction in order to enforce an arbitration agreement. The court reasoned that it has jurisdiction over the dispute even though a valid arbitration agreement exists, and since time and effort have already been consumed in the common pleas action, the arbitration proceedings should be stayed. We disagree with both the reasoning and the result reached by the trial court.

First, it is clear that the application of 42 Pa.C.S.A. § 7304(b), set forth in full, supra, is not limited to situations where a common pleas action has not already been instituted. Subsection c of Section 7304 provides:

(c) Venue.—If a controversy alleged to be or not to be referable to arbitration under the agreement is also involved in an action or proceeding pending in a court having jurisdiction to compel or stay arbitration the application shall be made to that court____

(Emphasis added). Section § 7304(b), which states that “the court may stay an arbitration on a showing that there is no agreement to arbitrate,” applies in cases where the litigation in progress is limited to the arbitration, as well as in cases where a common pleas suit has been instituted prior to the arbitration request.

Furthermore, the question of whether the trial court had jurisdiction to decide the common pleas action is irrelevant to the question of whether the arbitration proceeding should be stayed. In deciding whether the arbitration should be stayed, the central focus lies on the issue of whether the parties agreed to arbitrate and whether the dispute involved in the arbitration proceeding falls within the arbitration clause. 42 Pa.C.S.A. § 7304(b); supra; Muhlenberg Twp., supra; Wolf v. Baltimore, supra.

The trial court erred in failing to determine whether the dispute involved in the arbitration proceeding is covered by the arbitration clause of the contract. Although we could vacate the order granting the stay and remand the case for the trial court to make this determination, the issue is one of law rather than fact; in the interest of judicial economy, we shall examine the dispute, along with the arbitration clause, and reach a legal conclusion. See Kemp v. Majestic Amusement Co., 427 Pa. 429, 234 A.2d 846, 848 (1967); In Re Meyers, 410 Pa. 455, 189 A.2d 852, 857 (1963) (if relevant facts are undisputed, reviewing court can draw appropriate conclusions regardless of action of trial court). If we determine that the dispute falls within the arbitration clause, we must reverse the order granting a stay of the arbitration. See Lincoln Sys. of Ed. v. Lincoln Ass’n of Univ. Profs., supra.

The contract called for Dial Associates to construct sewer lines in the borough of Shickshinny; in exchange, the Sewer Authority agreed to pay Dial Associates $667,470.00. The arbitration provision, contained in Article 16 of the contract, states:

All claims, disputes and other matters in question arising out of, or relating to this Agreement or the breach thereof ... shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining. This agreement so to arbitrate shall be specifically enforceable under the prevailing arbitration law.

(Emphasis added). In its demand for arbitration, Dial Associates alleged that the Sewer Authority violated the contract terms by, inter alia, refusing to pay estimates, refusing to make unit price adjustments where warranted, and intentionally acting to prevent Dial Associates from completing the job.

The parties agreed that all claims arising out of the contract would be subject to arbitration. Clearly, the dispute which is the subject of the arbitration matter, alleging a breach of the contract, is covered by the broad language of the arbitration provision. We therefore conclude that the matter is properly the subject of arbitration, and the trial court erred in granting a stay of the arbitration matter. The order of the trial court is reversed, and the stay of arbitration is set aside.

Order reversed.

      . An order granting an application to stay arbitration made under 42 Pa.C.S.A. § 7304(b) is appealable as of right. See 42 Pa.C.S.A. § 7320(a)(2).

      . The trial court found as a fact that the Sewer Authority received Dial Associates’ request for arbitration on August 29, 1986.

      . The trial court's observation that an arbitration clause does not affect the jurisdiction of the court is correct. See Univ. Square No. 1, Inc. v. Marhoefer, 407 Pa. 257, 180 A.2d 427 (1962); Kwalick v. Bosacco, 329 Pa.Super. 235, 478 A.2d 50 (1984); Woodward Heating v. American Arbitration Ass’n, 259 Pa.Super. 460, 393 A.2d 917 (1978); Chelwyn Associates v. Lupowitz, 256 Pa.Super. 159, 389 A.2d 649 (1978). Had the trial court been determining the question of whether the common pleas action should be stayed, the issue of its jurisdiction to decide the controversy might have been relevant. However, the trial court under such circumstances should observe that, although it does indeed have the power to hear controversies within its subject matter jurisdiction, this does not preclude a lower court’s deference to a contractually agreed-upon arbitration forum. Wechsler v. Newman, 256 Pa.Super. 81, 90, 389 A.2d 611, 615 (1978) (emphasis in original). As stated by our Supreme Court in Central Contracting Co. v. C.E. Youngdahl & Co., 418 Pa. 122, 133, 209 A.2d 810, 816 (1965):
      [Wjhile private parties may not by contract prevent a court from asserting its jurisdiction or change the rules of venue, nevertheless, a court in which venue is proper and which has jurisdiction should decline to proceed with the cause when the parties have freely agreed that litigation shall be conducted in another forum where such agreement is not unreasonable at the time of litigation. To date, the parties in the instant case have not filed a request to
      stay the common pleas action or to transfer the common pleas matter to arbitration. Such a motion would appear appropriate in this case.


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    532 A.2d 865
    COMMONWEALTH of Pennsylvania v. Wilmer Lee HURST, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 15, 1987..
    Filed Oct. 15, 1987.

      Robert H. Reese, Jr., Lancaster, for appellant.
    Yvonne A. Okonieski, Deputy District Attorney, Harrisburg, for Com., appellee.
    Before DEL SOLE, MONTEMURO and HESTER, JJ.
   DEL SOLE, Judge:

Appellant was charged and found guilty by a district magistrate for Reckless Driving, a violation of 75 Pa.C.S. § 3714. Appellant later filed a summary appeal in the Dauphin County Court of Common Pleas. After a hearing on this matter, Appellant was adjudged guilty of Reckless Driving and received a sentence of 30 days imprisonment along with a $300.00 fine. The instant appeals follow.

Appellant asserts on appeal that the trial court erred in refusing Appellant’s oral motion to dismiss inasmuch as the prosecuting state trooper was not acting within his scope of employment at the time the summary offense was committed. Appellant posits that under these circumstances the trooper was required to file a private complaint rather than issuing a traffic citation. It is also urged on appeal that the trial court committed five instances of error when imposing Appellant’s sentence.

Preliminarily, we find it necessary to summarize the sequence of events leading to the instant appeals so that certain procedural improprieties committed at the trial court level may be illuminated. On October 22, 1986, Appellant was found guilty of Reckless Driving by the trial court judge. During the same proceeding, Appellant received his sentence and was notified by the deputy district attorney that he had 10 days in which “to appeal any post-trial motions.” (N.T., 10/22/86, 10). Appellant was not advised that an appeal to this Court must be filed within 30 days after sentencing. Thereafter, on November 3, 1986, Appellant filed a motion for a new trial. On the same day, a motion to modify the sentence was filed. In an order dated November 5, 1986, the trial court denied Appellant’s motion to modify. In response, Appellant filed his first appeal from the November 5, 1986 order. Later, on January 12, 1987, the trial judge denied Appellant’s motion for a new trial. Appellant then filed his second appeal to this Court on February 11, 1987.

Initially, we point out that the trial judge improperly pronounced verdict and sentence simultaneously. The proper procedure is to permit a defendant to file timely post-trial motions after the verdict is rendered, but before sentence is imposed. Commonwealth v. Dalbon, 296 Pa. Super. 122, 124-125, 442 A.2d 326, 327 (1982). See Comment to Pa.R.Crim.P. 1123. However, we note that Appellant did file timely post-trial motions which were eventually ruled upon by the trial court. Thus, Appellant was not prejudiced by this procedural misstep.

The next area of confusion appearing in the record is the fact that Appellant filed his first appeal from the November 5, 1986 order denying Appellant’s motion to modify the sentence. Section 742 of the Judicial Code vests the Superior Court with exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas. See 42 Pa.C.S.A. § 742. In the criminal context, the judgment of sentence marks the completion of the trial court proceedings. Commonwealth v. Gumpert, 354 Pa.Super. 595, 512 A.2d 699, 700 (1986). Thus, with few exceptions, it is, the general rule that a criminal defendant may appeal only from a judgment of sentence. Commonwealth v. Reagan, 330 Pa.Super. 417, 418, 479 A.2d 621, 622 (1984). Instantly, Appellant advanced his appeal from the trial court’s dismissal of the motion to modify the sentence, instead of from the judgment of sentence. Under these circumstances, we would normally quash such an appeal since Appellant’s appeal does not originate from a final order.

Moreover, even if we were to overlook this mislabelling and regard it as an appeal from the judgment of sentence, it appears to be untimely. Appellant was sentenced on October 22, 1986; the appeal under consideration was not filed until November 25, 1986, more than thirty days following sentencing. It is clear that an appeal must be filed within thirty days after entry of the order from which the appeal is taken. Since timeliness of appeal is jurisdictional, we may not enlarge the time for filing the notice of appeal as a matter of grace or indulgence. Commonwealth v. Smith, 348 Pa.Super. 10, 14-15, 501 A.2d 273, 275 (1985).

However, we recognize that a trial judge must advise a defendant on the record at the time of sentencing of the defendant’s right to file an appeal and the time within which that right must be exercised. See Pa.R.Crim.P. 1405. In the case at bar, the trial judge failed to inform Appellant of his appellate rights. By virtue of this fact, we shall not quash this untimely appeal. Commonwealth v. Eliason, 353 Pa.Super. 321, 323, 509 A.2d 1296, 1297 (1986). Likewise, we reach the same decision with respect to Appellant’s second appeal from the trial court’s denial of his motion for a new trial.

Next, we address the merits of Appellants’ arguments raised on appeal. First, Appellant alleges that the traffic citation issued by a Pennsylvania State Police trooper was invalid insofar as the prosecuting officer was not acting within the scope of his employment at the time Appellant committed the summary offense of Reckless Driving. The facts are as follows. On April 18, 1986, Trooper Charles A. Mory, Jr. was returning home from work on Route 1-83 when he observed Appellant’s tractor-trailer pass his car. Appellant then proceeded to tailgate another vehicle for approximately one or two-tenths of a mile. Appellant then attempted to pass the vehicle; as he did so, Appellant swerved into the vehicle’s lane, causing its driver to brake hard in order to avoid a collision. After assessing the situation, Trooper Mory waved Appellant off to the side of the highway. Appellant explained his erratic behavior by stating that he was tired of the manner in which the operator of the vehicle was driving. After obtaining the necessary data from Appellant, the police officer forwarded this information to the district justice, who later issued a summons by mail to Appellant.

Appellant argues that the prosecuting officer did not possess the authority to file a citation with the district justice since he was off-duty at the time the summary offense occurred. Appellant contends that Trooper Mory stood “in the shoes of a private citizen” and was without authority to issue a traffic citation. In support of this position, Appellant relies on Pa.R.Crim.P. 65 which provides that “when the affiant is not a law enforcement officer, the affiant shall institute a criminal proceeding in a summary case by filing a complaint with the proper issuing authority.” (Emphasis supplied). We disagree.

In Commonwealth v. Eshelman, 477 Pa. 93, 383 A.2d 838 (1978), our Supreme Court considered the validity of certain actions taken by an off-duty police officer. In that case, an off-duty policeman was running his dogs across the appellant’s grandmother’s property without permission. Near the edge of a wooded area the officer noticed an old automobile. He peered through its windows and observed what he suspected to be packages of marijuana being dried. The officer reached inside of the car, extracted one of the unopened packages, and took it to the police station. The parcel was opened and its contents examined; the package indeed contained marijuana. Based on this discovery, a warrant was obtained to search the automobile. During a suppression hearing, it was determined that the off-duty policeman was not acting under the direction of any sovereign or police authority. Therefore, the officer’s actions did not constitute an unlawful search and seizure conducted under unlawful authority. The suppression hearing judge held that the officer’s search and seizure might have been characterized as a civil trespass by a private citizen. Id. at 383 A.2d at 839-840.

Our Supreme Court disagreed and found that the officer, despite being off-duty, was “acting as a police officer when he removed the package and turned it over to the police.” Further, it was held that the policeman’s conduct was totally inconsistent with the theory that he was merely a private citizen. Id. at 383 A.2d at 842. Thus, our Supreme Court refused to analyze the supression issues from the perspective that the search and seizure was performed by a private citizen. See People v. Martin, 225 Cal.App.2d 91, 36 Cal.Rptr. 924 (1964) (“police officers outside their jurisdiction, though technically private citizens, regarded as agents of the state on the basis of their conduct”). See also State v. Brothers, 4 Or.App. 253, 478 P.2d 442 (1970) (“off-duty police chief who came to home as ambulance operator, returned later that night to search, held a police officer at time of search”). Id. at 383 A.2d at 842.

Although the facts in Eshelman dealt with suppression issues, we find its holding to be applicable to the case at bar. Presently, Appellant was directed to stop his rig along an interstate highway, which was within the trooper’s jurisdiction while on-duty. The record reflects that Trooper Mory was in uniform, with the exceptions of his tie, hat, and service revolver. Likewise, it is undisputed that the trooper conducted himself in an official manner while interviewing Appellant. Later, after speaking to his superior about this occurrence, the officer chose to file a citation with the district magistrate’s office himself, rather than transfer the case to another officer based on information received.

We find from these facts that Trooper Mory was acting as a police officer, not as a private citizen, when he stopped Appellant’s tractor trailer. Despite Appellant’s position to the contrary, the fact that the officer was off-duty does not mean that the trooper’s power to conduct official police business automatically ceased. The circumstances attendant to Appellant’s delay clearly illustrate that the safeguards which attach to a driver being pulled over by an on-duty police officer were present at all times. Therefore, we disagree with Appellant’s contention that the issued citation was null.

Appellant cites Commonwealth v. Stahl, 296 Pa.Super. 507, 442 A.2d 1166 (1982) for the proposition that the arrest of a defendant by an off-duty police officer is invalid. However, we find that the conclusion reached by this Court in Stahl is factually inapplicable to the case at bar. In that case, we considered whether or not an arrest made by an “off-duty policeman as a citizen’s arrest” was valid. Id., 296 Pa.Superior Ct. at 513, 442 A.2d at 1169. The distinction between the two cases lies in the fact that Trooper Mory acted as a police officer, not as a private citizen, when he executed the citation. Parenthetically, we note that the Opinion in Stahl ws authored by one panel member with the remaining two judges concurring in the result. Under these circumstances, that Opinion is of no precedential value.

Further, Appellant’s reliance on Pa.R.Crim.P. 65 is misplaced. We find Pa.R.Crim.P. 51(A)(1)(b) to be germane to the disposition of this case. The extant language of Rule 51(A)(1)(b) provided:

[a] citation (rather than a complaint) shall be filed with an issuing authority by a police officer when the offense charged is a violation of a traffic ordinance or is a summary offense under the Vehicle Code, when the police officer is not in uniform, or when it is not feasible for him to issue a citation to the defendant, or when evidence is discovered after the issuance of a citation which gives rise to additional summary charges against the defendant resulting from the same incident.

(Emphasis supplied). Section 3714 of the Vehicle Code states that “[a]ny person who drives a vehicle in careless disregard for the safety of persons or property is guilty of reckless driving, a summary offense.” See 75 Pa.C.S.A. § 3714. Thus, we hold that Trooper Mory acted in conformance with the relevant rules of criminal procedure relating to the institution of proceedings in summary cases.

Finally, Appellant urges that the trial court committed numerous instances of error in pronouncing sentence. For the following reasons, however, we need not address those particular arguments. The sentence imposed by the trial court was illegal; therefore, we must vacate the judgment of sentence and remand this case for resentencing.

The Commonwealth aptly points out that the trial court could not properly sentence Appellant to 30 days imprisonment under the applicable statutes. The summary offense of Reckless Driving is contained within the Vehicle Code. Section 6502(b) of the Code provides that “[ejvery person convicted of a summary offense for a violation of any of the provisions of this title for which another penalty is not provided shall be sentenced to pay a fine of $25. 75 Pa.C.S.A. § 6502(b). Subsection (c) further states that “[tjitle 18 (relating to crimes and offenses), in so far as it relates to fines and imprisonment for convictions of summary offenses, is not applicable to this title.” 75 Pa.C.S.A. § 6502(c).

Presently, a term of imprisonment is not permitted by § 6502. Likewise, there are no provisions elsewhere in the Code which sanction incarceration as a penalty for Reckless Driving. Therefore, we are constrained to find that Appellant’s 30 day prison term is illegal. Moreover, the $300.00 fine imposed by the trial court is greater than the permissible penalty of $25.00 as mandated in § 6502(b) of the Code.

Accordingly, the judgment of sentence is vacated. Case remanded for resentencing. Jurisdiction is relinquished.

      . In Commonwealth v. Picker, 293 Pa.Super. 381, 384, 439 A.2d 162, 163 (1981), we opined that the proper procedure for litigants to follow under these circumstances would be to file a motion to vacate the improperly imposed judgment of sentence in order to allow for the filing of post-verdict motions.

      . We recognize that Appellant does not raise the legality of sentence issue by his appeals. However, illegality of sentence is not waivable and may be raised by this Court sua sponte. Commonwealth v. Roach, 307 Pa.Super. 506, 511 n. 2, 453 A.2d 1001, 1003, n. 2 (1982).


text:
    532 A.2d 870
    COMMONWEALTH of Pennsylvania v. Paul S. COLPO, Appellant.
    Superior Court of Pennsylvania.
    Argued June 2, 1987.
    Filed Oct. 14, 1987.

      Kathleen A. Cribbins, Pittsburgh, for appellant.
    Sean K. Code, Assistant District Attorney, Pittsburgh, for Com., appellee.
    Before DEL SOLE, POPOVICH and MONTGOMERY, JJ.
   DEL SOLE, Judge:

The Appellant in this case was charged with one count of arson endangering persons and one count of arson endangering property following a fire which occurred in his home. He was tried by a jury and convicted of both charges. This appeal followed.

The first issue raised by Mr. Colpo is that the trial court erred in denying his pre-trial motions concerning a search warrant and his right to a speedy trial. To be preserved for appellate review an issue must be raised in post-trial motions, and these motions must be filed within ten days of the verdict. Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979); Commonwealth v. Lynch, 304 Pa.Super. 248, 450 A.2d 664 (1982); Pa.R.Crim.P. 1123. In this case, there are post trial motions contained in the record certified to us from the Court of Common Pleas of Allegheny County, but the motions have not been time stamped by the clerk of courts, and are not dated, also, all that is contained in the record are unsigned, unverified photocopies. We cannot determine if these post-trial motions were timely filed and the issues contained in them preserved for review. Therefore, we will remand the case to the trial court for it to determine if post-trial motions were timely filed and then return the record to this court.

The Appellant has also raised various claims of ineffectiveness of trial counsel, which are issues properly before us, since this appeal is the first time that the Appellant has been represented by counsel other than trial counsel. See Commonwealth v. Reider, 343 Pa.Super. 270, 494 A.2d 461 (1985). We will review these claims in light of the standard recently reiterated by our Supreme Court: a defendant must show that the omission or commission by counsel was arguably ineffective and the likelihood that he was prejudiced thereby. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

The first of the ineffectiveness claims raised by the Appellant is that trial counsel was ineffective in eliciting damaging testimony during his cross-examination of Lieutenant John Delia of the Option Fire Department in Baldwin Borough which was the first fire department to arrive at the scene. Lieutenant Delia testified on direct examination concerning what he found at the scene of the fire, and that in his opinion the fire had multiple points of origin.

Some of this testimony was repeated on cross-examination but our review of the trial transcript reveals no new damaging testimony was elicited by trial counsel when he examined this witness. Appellant’s brief points to no specific area of damaging testimony from this witness on cross, and we have found none. We find no merit in this contention.

Appellant next claims that trial counsel was ineffective because he failed to make certain items of physical evidence available to a defense expert before trial. The items were carpet and carpet padding taken from the Appellant’s residence by the district attorney’s office. Appellant argues in his brief that failure to provide the expert with all of the evidence may have resulted in a difference in the opinion of the expert, and most certainly rendered the opinion “deficient” in the eyes of the jury.

Mr. Emerson Venable, a chemist who specializes in problems of safety and problems of health, testified for the defense as an expert witness. T.T., p. 512. Venable testified that he had removed a section of carpet and padding from the hallway of the house during hjs investigation, and he brought the carpet to court with him to demonstrate why he believed that the fire marshall’s theory about the cause of the fire was wrong. T.T. p. 519, ff. He took other items from the house: carpeting from the living room, a black can, a kerosene heater. T.T., p. 565. The expert took the items he needed and conducted tests as he saw fit. He did not see the Commonwealth’s samples of the carpet and padding until a few days before trial (T.T. p. 567) but trial counsel’s failure to make arrangement for this earlier hardly reaches the level of inattention we would deem ineffectiveness. Appellant does not say why he believes that tests of the Commonwealth’s exhibits would have provided any exculpatory evidence or would have produced results different from the tests Mr. Venable made on the samples he removed himself. We find this claim lacks merit.

Appellant also claims that trial counsel was ineffective for calling two character witnesses who met the Appellant after the fire took place. Neither Dr. Joseph Mele nor Father Walter Ritzi knew the Appellant at the time the fire occurred and this was brought out on cross-examination by the district attorney. T.T. pp. 328, 330. However, counsel called six other character witnesses who did know the Appellant at the time of the incident and testified to his reputation for truthfulness. These witnesses included a contractor, a Catholic priest, two attorneys, a security consultant and an IRS agent. Considering the presentation of character testimony as a whole, we find that the Appellant was not prejudiced by the appearance of Father Ritzi and Dr. Mele.

Appellant’s final claim seems to be one of first impression. He argues that his sentence was illegal: that the crimes of arson endangering persons and arson endangering property merge for sentencing purposes. Appellant’s failure to file his post-trial motions properly does not result in the waiver of this issue; the legality of a sentence can never be waived. Commonwealth v. Lawton, 272 Pa.Super. 40, 414 A.2d 658 (1979).

An en banc panel of this court, in a thorough opinion written by now President Judge Cirillo, Commonwealth v. Leon Williams, 344 Pa.Super. 108, 496 A.2d 31 (1985), discussed the history and the application of the doctrine of merger. The Williams court teaches us that in order to find separate statutory offenses merge, the crimes must arise out of the same criminal act, transaction or episode. In addition, we must determine whether there are substantially different interests of the Commonwealth at stake and whether the defendant’s conduct has injured each interest, in which the case there is no merger. Id., 344 Pa.Superior Ct. at 127-28, 496 A.2d at 42.

Applying the Williams analysis to the facts of the case before us we note initially that there has been only one act, the setting of one fire. The two counts of arson for which he was convicted protect different interests of the Commonwealth, however, and therefore do not merge. A person commits arson endangering persons, a first degree felony, if he causes a fire and thereby recklessly places another person, including (as in this case) a firefighter, in danger of death or bodily injury. The Appellant was convicted of arson endangering property, a second degree felony, for causing a fire with the intent of damaging property to collect insurance for such loss. While both arson statutes protect property, one of the statutes protects human life, an interest distinct from protecting against insurance fraud. We conclude that there was no merger and that Appellant’s sentence was a legal one.

Judgment of sentence affirmed. Case remanded to the trial court for a determination of whether post-trial motions were timely filed. Jurisdiction of the court retained, jurisdiction of this panel relinquished.

      . § 3301. Arson and related offenses.
      (a) Arson endangering persons.
      (1) A person committs a felony of the first degree if he intentionally starts a fire or causes an explosion, or if he aids counsels, pays or agrees to pay another to cause a fire or explosion, whether on his own property or on that of another and if:
      (i) he thereby recklessly places another person in danger of death or bodily injury, including but not limited to a firefighter police officer or other person actively engaged in fighting the fire. ******

        18 Pa.C.S.A. § 3301(a).

      . Arson endangering property.—A person commits a felony of the second degree if he intentionally starts a fire or causes an explosion, whether on his own property or that of another, or if he aids, counsels, pays or agrees to pay another to cause a fire or explosion, and if:
      (1) he commits the act with intent of destroying or damaging a building or unoccuppied structure of another;
      (2) he thereby recklessly places an inhabited building or occupied structure of another in danger or destruction; or
      (3) he commits the act with intent of destroying or damaging any property, whether his own or of another, to collect insurance for such loss.
      18 Pa.C.S.A. § 3301(c).


author: KELLY, Judge: DEL SOLE, Judge, MONTEMURO, Judge,

text:
    532 A.2d 873
    Frank ZARNECKI, Appellee, v. Doreen SHEPEGI, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 9, 1986.
    Filed Oct. 13, 1987.

      Craig A. Markham, Erie, for appellant.
    David G. Ridge, Erie, for appellee.
    Before CIRILLO, President Judge, and ROWLEY, OLSZEWSKI, DEL SOLE, MONTEMURO, BECK, TAMILIA, KELLY and POPOVICH, JJ.
   KELLY, Judge:

In this residential mortgage foreclosure action, defendant, Doreen Shepegi, appeals a pretrial order which precludes her from asserting that the signature on the mortgage instrument is a forgery. The lower court found that the doctrine of collateral estoppel barred defendant from presenting this defense. A panel of this Court assigned to hear argument certified the appeal to the Court en banc to determine: (1) whether the order of the court below is final and immediately appealable; and (2) whether the lower court erred in entering the order. After careful consideration, we conclude that the order appealed from is final and the appeal is properly before us; we further find that the court below correctly held that presentation of the forgery defense was barred by the doctrine of collateral estoppel. Accordingly, we affirm.

I. Appealability

The order appealed from states that “[i]t ... is deemed established should a trial be necessary on this matter, that defendant did sign the mortgage instrument in question and that her signature is authentic.” Before turning to the question of whether the trial court erred in entering this order, we must first determine whether the appeal is properly before us. The Judicial Code provides:

The Superior Court shall have exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas, regardless of the nature of the controversy or the amount involved, except such classes of appeals as are by any provision of this chapter within the exclusive jurisdiction of the Supreme Court or the Commonwealth Court.

42 Pa.C.S.A. § 742. (Emphasis added).

A final order has been described as “one which usually ends the litigation, or alternatively, disposes of the entire case.” Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978); Praisner v. Stocker, 313 Pa.Super. 332, 336-7, 459 A.2d 1255, 1258 (1983). Additionally, if the practical consequence of the trial court’s order is to effectively put a defendant “out of court,” the order will be treated as final. Ventura v. Skylark Motel, Inc., 431 Pa. 459, 463, 246 A.2d 353, 355 (1968). An order does not put a party “out of court” unless it precludes proof of facts at trial, which if determined in favor of the pleader, would provide him with a complete defense to the action. Posternack v. American Casualty Co. of Reading, 421 Pa. 21, 23-4, 218 A.2d 350 (1966); Ventura, supra, 246 A.2d at 355.

In Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 228, 348 A.2d 734, 735 (1975), the Pennsylvania Supreme Court stated:

Whether an order is final and appealable cannot necessarily be ascertained from the face of a decree alone, nor simply from the technical effect of the adjudication. The finality of an order is a judicial conclusion which can be reached only after an examination of its ramifications. We follow the reasoning of the United States Supreme Court that a finding of finality must be the result of a practical rather than a technical construction. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528 (1949).

In Posternack v. American Casualty Co. of Reading, supra, the Supreme Court determined that a pretrial order denying a party leave to amend an answer so as to assert a new affirmative defense constituted a final order for purposes of appeal:

The order is not interlocutory, and the motion to quash will be overruled. The new defense proposed is affirmative in nature and must be pleaded, otherwise it is waived. See, Pa.R.C.P. 1030, 1032, and Lang v. Recht, 171 Pa.Super. 605, 91 A.2d 313 (1952). The order involved effectively precludes proof at trial of what might possibly be a complete defense to the cause sued upon. As to this defense, at least, the order appealed from puts the defendant ‘out of court.’ It is, therefore, an appealable order. See Cohen v. Beneficial Industrial Loan Corp. [supra] and Bell v. Benefic. Consumer Corp., 465 Pa. 225, 348 A.2d 734 (1975).

218 A.2d at 351. (Emphasis added). Subsequent cases have followed the rule of Postemack, holding that an order precluding a defendant from presenting its affirmative defenses or refusing to allow evidence of a possibly meritorious defense is a final and appealable order. Pennsylvania Turnpike Commission v. Atlantic Richfield Co., 482 Pa. 615, 394 A.2d 491 (1978); Commonwealth of Pennsylvania, Department of Environmental Resources v. Wheeling-Pittsburgh Steel Corp., 473 Pa. 432, 375 A.2d 320 (1977) cert. denied 434 U.S. 969, 98 S.Ct. 515, 54 L.Ed. 456 (1977); Brunetti v. Southeastern Pennsylvania Transportation Authority, 329 Pa.Super. 477, 478 A.2d 889 (1984); Roman v. Pearlstein, 329 Pa.Super. 392, 478 A.2d 845 (1984); Sechler v. Ensign-Bickford Co., 322 Pa.Super. 162, 469 A.2d 233 (1983).

Appellee argues that a recent panel decision of this Court in Elderkin, Martin, Kelly, Messina & Zamboldi v. Sedney, 354 Pa.Super. 253, 511 A.2d 858 (1986), requires us to quash the instant appeal as interlocutory. Elderkin involved an appeal from a sanctions order which precluded the defendants from entering any evidence in their own defense or from opposing the claims of the plaintiff. The panel held that the order was interlocutory and the appeal premature. In reaching this conclusion, the panel applied the three-part appealability test set forth in Cohen v. Beneficial Industrial Loan Corp., supra, and adopted by the Pennsylvania Supreme Court in Bell v. Beneficial Consumer Discount Company, supra. The Court in Elderkin stated:

Under Cohen, an order is considered final and appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. Id. 337 U.S. at 546, 59 S.Ct. at 1226, 93 L.Ed. at 536.

511 A.2d at 859, quoting Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985). The panel in Elderkin found that the order appealed from did not satisfy the third prong of the Cohen test, since the question of the propriety of the court’s order would not be irreparably lost if review were postponed until final judgment in the case. Elderkin, 511 A.2d at 860.

The Elderkin case does not require us to quash the instant appeal. This Court, sitting en banc, recently reexamined the appealability question and expressly disapproved of the suggestion made in Elderkin, supra, that the appropriate test to be applied in determining finality is the three-prong Cohen test. In Fidelity Bank v. Duden, 361 Pa.Super. 124, 521 A.2d 958 (1987), we stated:

... The Cohen test has nothing to do with determining ‘finality.’ If an order adjudicates an action finally, it is appealable. Conversely, if the order does not determine the action finally, it is interlocutory and generally nonappealable. ... Cohen created an exception to the rule allowing appeals solely from final orders---- It has application only to orders which are interlocutory.
******
The suggestion made in Elderkin, Martin, Kelly, Messina & Zamboldi v. Sedney, [supra] that because of Fried, ‘the appropriate test to be applied in determining finality is the three prong Cohen test,’ is disapproved. According to long-standing precedent, an order is final where it puts a litigant out of court or otherwise terminates the litigation by precluding a party from presenting the merits of a claim or defense to the trial court. Cohen, to repeat, has nothing to do with determining finality; it has application only to orders which admittedly are interlocutory but which are collateral to and separable from the main action.

521 A.2d at 960 (emphasis added) (citations omitted).

The order appealed from in the instant case precluded defendant from presenting a possibly meritorious and compíete defense in the mortgage foreclosure action. As the order put defendant “out of court/’ at least as to this defense, it is a final and appealable order. See Postemack, supra. The appeal by defendant, taken from a final and appealable order, is properly before this Court for review.

II. Merits of the Appeal

The facts of this case may be briefly summarized as follows. In May 1977, the defendant became the sole record title owner of the residential property which is the subject of the instant mortgage foreclosure action. The parties agree that the property was purchased through the joint efforts of the plaintiff and defendant. Plaintiff claims that in consideration for a loan he made to defendant, defendant executed and delivered a mortgage and a promissory note in the amount of $44,000. Defendant denies this claim, stating that at plaintiff’s request she executed a will, naming plaintiff as sole beneficiary, and that she pledged future payments to be obtained from her separately owned income property.

On August 13, 1980, the relationship between the parties apparently having soured, plaintiff confessed judgment against defendant for $44,000, in accordance with the terms of the purported promissory note. Defendant filed a petition to open the judgment on October 30,1980, alleging that the signature appearing on the promissory note was a forgery. The parties agreed that they would be bound by the decision of a neutral handwriting expert, chosen by the court, as to the authenticity of the signature appearing on the promissory note.

Several documents were submitted to the handwriting expert, including samples of defendant’s actual signature. However, for reasons which are not apparent of record, the promissory note in question was not among the documents submitted. In a report dated March 15, 1983, the expert witness concluded that the signature on the mortgage was that of the defendant. On April 27, 1983, the court denied defendant’s petition to open the confessed judgment. The court did not issue an opinion explaining its decision, and no appeal was filed.

On January 9, 1984, plaintiff instituted the instant mortgage foreclosure action in accordance with the terms of the disputed mortgage. In her answer, defendant alleged that she did not sign the mortgage instrument, or that if she did sign it, her signature was fraudulently obtained. On January 31, 1985, plaintiff filed a motion for summary judgment, contending that the principle of res judicata prevented defendant from asserting the defense that the mortgage signature was not her own. In an opinion and order dated August 14, 1985, the court below denied the summary judgment motion, but held that, because of the doctrine of collateral estoppel, it “is deemed established should a trial be necessary on this matter, that defendant did sign the mortgage instrument in question and that her signature is authentic.” (Order of August 14, 1985). The order was reduced to judgment, and on September 4, 1985, defendant filed a notice of appeal to this Court.

In his motion for summary judgment, the plaintiff asserted that the doctrine of res judicata barred relitigation of the authenticity question. The doctrine of res judicata “is based on public policy and seeks to prevent an individual from being vexed twice for the same cause.” In re Estate of R.L.L., 487 Pa. 223, 228 n. 7, 409 A.2d 321, 323 n. 7 (1979).

The purposes of the rule are the protection of litigants from the dual burden of relitigating an issue with the same party or his privy and the promotion of judicial economy through prevention of needless litigation. Nemo debet bis vexari pro una et eadem cause; interest reipublicae res judicatas non rescindí. Finality of litigation is essential so that parties may rely on judgments in ordering their private affairs and so that the moral force of court judgments will not be undermined.

Clark v. Troutman, 509 Pa. 336, 340, 502 A.2d 137, 139 (1985). The doctrine holds that “a final valid judgment upon the merits by a court of competent jurisdiction bars any future suit between the parties or their privies, on the same cause of action.” Keystone Building Corp. v. Lincoln Savings and Loan Assn., 468 Pa. 85, 91, 360 A.2d 191, 195 (1976), citing Burke v. Pittsburgh Limestone Corp., 375 Pa. 390, 395, 100 A.2d 595, 598 (1953). In order for the doctrine of res judicata to prevail, “there must be concurrence of four conditions: (1) identity of issues, (2) identity of causes of action, (3) identity of persons and parties to the action, and (4) identity of the quality or capacity of the parties suing or sued.” In re Estate of R.L.L., supra, 487 Pa. 228 n. 7, 409 A.2d 321, 323 n. 7; Safeguard Mutual Insurance Company v. Williams, 463 Pa. 567, 574, 345 A.2d 664, 668 (1975); Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 232, 464 A.2d 1313, 1316 (1983).

The lower court correctly rejected plaintiffs claim that the defense of forgery was barred by the doctrine of res judicata. The first cause of action was founded upon the terms of a promissory note, while the second is based upon a mortgage instrument. Thus, the second prerequisite for application of res judicata, identity of causes of action, is not present. The court below properly held that the doctrine of res judicata is inapplicable to the instant case.

The lower court relied upon the principle of collateral estoppel in holding that defendant could not attempt to prove that the signature on the mortgage instrument was not her own. According to the rule of collateral estoppel or issue preclusion, when an issue of law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the same parties, whether on the same or a different claim. Restatement (Second) of Judgments § 27 (1982); Clark v. Troutman, supra, 509 Pa. at 341, 502 A.2d at 139. “Unlike merger and bar (res judicata), which are applicable only when the same cause of action is asserted, collateral estoppel may apply in any subsequent litigation. On the other hand, collateral estoppel is applicable only to essential issues of fact which have been actually litigated.” In re Estate of R.L.L., supra, 487 Pa. at 228 n. 8, 409 A.2d at 323-4 n. 8. Accord: Schubach v. Silver, 461 Pa. 366, 336 A.2d 328 (1975).

[A] plea of collateral estoppel is valid if, 1) the issue decided in the prior adjudication was identical with the one presented in the later action, 2) there was a final judgment on the merits, 3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication, and 4) the party against whom it is asserted has had a full and fair opportunity to litigate the issue in the question in a prior action.

In re Estate of R.L.L., supra, 487 Pa. at 228 n. 8, 409 A.2d at 323-4 n. 8, quoting Safeguard Mutual Insurance Company v. Williams, supra, 345 A.2d at 668; Gulentz v. Schanno Transportation, Inc., 355 Pa.Super. 302, 308, 513 A.2d 440, 443 (1986); Derry Township School District v. Day & Zimmerman, Inc., 345 Pa.Super. 487, 491, 498 A.2d 928, 930 (1985); Matson v. Housing Authority of the City of Pittsburgh, 326 Pa.Super. 109, 112, 473 A.2d 632, 634 (1984).

Applying these prerequisites to the instant case, it is evident that two of the four factors necessary for application of the principle of collateral estoppel are clearly present. The actions involve identical parties, and the first action resulted in a final judgment on the merits. Two of the four factors, however, merit closer examination. First, we must determine whether the issue decided in the first case was the same as that which was found to be barred: the authenticity of the signature on the mortgage instrument. Second, we must decide whether the defendant had a full and fair opportunity to litigate this issue in the first case. As stated in Keystone Building Corporation v. Lincoln Savings & Loan Association, supra:

[WJhere the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. In all cases, therefore, when it is sought to apply the estoppel of a judgment ... the inquiry must always be as to the point or question actually litigated or determined in the original action; not what might have been thus litigated and determined.

360 A.2d at 195 (emphasis added), quoting Cromwell v. County of Sac, 94 U.S. (4 Otto) 351, 352-53, 24 L.Ed. 195 (1976); U.S. v. International Building Company, 345 U.S. 502, 504-5, 73 S.Ct. 807, 808-09, 97 L.Ed. 1182 (1953).

The authenticity question arose in the first case in the context of a petition to open a confessed judgment. In order for such a petition to be granted, the petitioner must allege a meritorious defense and present sufficient evidence of that defense to require submission of the issue to a jury. See First Seneca Bank & Trust Company v. Laurel Mountain Development Corporation, 506 Pa. 439, 485 A.2d 1086 (1984). In the first action, defendant’s petition to open alleged that the signature appearing on the promissory note was not her own, and that she therefore had a meritorious defense to the underlying action. Depositions were taken, and the parties soon focused upon the authenticity of the mortgage instrument. The parties agreed to abide by the report of the expert, who examined the mortgage and determined that the signature on the mortgage was that of the defendant. Based upon this expert’s report, the court denied defendant’s petition to open the confessed judgment.

We must first decide whether the issue of the authenticity of the signature appearing on the mortgage instrument was actually litigated in the first action. As is often stated, the issue litigated must have been essential to the judgment for the principle of collateral estoppel to apply. See Schubach v. Silver, supra; Restatement (Second) of Judgments § 27. Comment j to Section 27 of the Restatement, entitled “[djeterminations essential to the judgment,” provides further guidance:

The appropriate question, then, is whether the issue was actually recognized by the parties as important and by the trier as necessary to the first judgment. If so, the determination is conclusive between the parties in a subsequent action, unless there is a basis for an exception under § 28.

The issue of the authenticity of the mortgage signature was clearly recognized by the parties as important. (See Request for Admissions to Defendant, Interrogatories to Defendant, and Plaintiff’s Pre-Trial Narrative). Inherent in the court’s denial of the petition to open is the finding that the signature on the mortgage was authentic, and that sufficient evidence of the forgery defense was not presented so as to require submission of the question to the jury. The issue was actually litigated, and its determination was essential to the court’s decision to deny the opening of the confessed judgment.

Furthermore, the record reveals that defendant had a full and fair opportunity to litigate the issue in question. Although a clear explanation for the submission of the mortgage to the handwriting expert, rather than the promissory note, is not apparent from the record, it is clear that defendant made no objection to the records submitted to the expert. Additionally, it is significant that defendant did not take an appeal from the first court’s denial of her petition to open the judgment. Defendant had ample opportunity to question the finding that the signature on the mortgage was her own, yet she failed to do so. She may not now attempt to do so.

The trial court did not abuse its discretion in holding that the principle of collateral estoppel bars defendant from presenting a forgery defense. Of course, defendant may present any other defenses, including her claim that the signature was fraudulently obtained.

Accordingly, the order appealed from is affirmed.

POPOVICH, J., concurs in the result.

DEL SOLE, J., files a dissenting opinion with BECK, J., joining.

MONTEMURO, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting:

The Majority in its proposed opinion in this case embarks upon the sea of “final and appealable orders” a sea that is unchartered, dark and dangerous. Unfortunately, while the Majority seeks to allow Appellant to arrive at the shore of jurisdiction in this court, it has, in my view, been sunk on the reef of inaccurate analysis.

Frank Zarnecki filed a mortgage foreclosure action against Doreen Shepegi based upon an underlying instrument. Ms. Shepegi filed an answer, new matter and counterclaim to which a reply to the counterclaim and new matter were filed by Mr. Zarnecki. Various discovery matters were undertaken and on January 31, 1985, the plaintiff filed a motion for summary judgment. This was responded to by the defendant and subsequently considered by the trial court. In a comprehensive opinion, filed by the Honorable Frederick P. Anthony, a partial summary judgment was entered on behalf of the plaintiff and against the defendant determining that the defendant’s signature on the underlying instruments was not forged. The trial court’s determination was based upon the doctrine of collateral estoppel since this issue had been raised in a previous action between the same parties on the same instrument and had been finally decided against the defendant.

On September 4, 1985, the defendant filed an appeal to this court from the partial summary judgment entered by the trial court. It is now 1987 and this case is still pending in the appellate courts. This case demonstrates the error of our ways in permitting appeals from interlocutory non-litigation ending orders entered at the trial court level.

My dispute with my colleagues in the Majority is in their analysis of the appealability of this order. Certainly, the Majority’s citation of 42 Pa.C.S. § 742, which vests this court with appellate jurisdiction from final orders is correct. The definition of a final order as “one which usually ends the litigation, or alternatively, disposes of the entire case” Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978) is additionally correct. The Majority errs, however, when it continues with its analysis. The Majority would characterize as final and appealable an order which prevents a party from introducing evidence on a particular point during the trial, reasoning that the party is effectively “out of court” on that particular point. Admittedly, there is some support for this general proposition but it is found in cases arising from the pleading stage where a party has been precluded from raising a defense, a counterclaim or a reply thereto.

Here a partial summary judgment was entered based upon the trial court’s determination that no issue of fact existed and, therefore, the matter could be disposed of by a judicial determination. The cases are numerous which hold that partial summary judgments, when granted in the course of litigation are not subject to appeal or review until the litigation ends. This is not an order that precluded the defendant from presenting an affirmative defense. This is an order which determined that no question of fact existed and that the law on an issue was clear.

However, while I disagree with the majority’s analysis and certainly its characterization of the order appealed from as a “pre-trial order” I must also call attention to what, in my view, is an area of the law that needs to be re-examined.

An order dismissing various counts in a multi-count complaint, an order refusing to allow the amendment of an answer, new matter or counterclaim, an order granting partial summary judgment, does not result in a litigant being “out of court”. Rather, those orders postpone the litigant’s right to have the issue resolved until a later time.

I would point out that I believe the doctrine contained in Praisner v. Stocker, 313 Pa.Super. 332, 336-7, 459 A.2d 1255,1258 (1983) and Cloverleaf Development Inc. v. Horizon Financial F.A., 347 Pa.Super. 75, 500 A.2d 163 (1985) should be reexamined.

In my view, the better practice would be to disallow appeals from any order, which is entered during the course of litigation at the trial level, until a party has been totally dismissed from a case or the case has ended for all purposes at the trial court level. The only exceptions to this rule should be those enumerated in Pa.R.A.P. 311 or where it is clearly established that the postponement of review would cause the claimed right to be irrevocably lost. See Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734, 735 (1975).

I realize that there are those who would argue, as was done in Praisner, that the dismissal of a count in a complaint, which is not related to other counts contained in the complaint, is the dismissal of a cause of action and, therefore, is appealable. It is argued that this conclusion is warranted since had the claim, which was dismissed, been presented in a separate and distinct complaint it would have been appealable. I understand and accept this argument but not the conclusion that the dismissed claim should be appealable while the remaining counts of the complaint are viable. I would point out that it was the individual litigants choice to bring all the issues in the same complaint. Having so chosen, the litigant must bear the risk that if some of the causes of action alleged in the multi-count complaint are dismissed, review will be postponed until the remaining counts have reached a final disposition. To find otherwise frustrates and delays the administration of justice, as is evident in the case sub judice which, at the time of this opinion, has been delayed almost two years.

The present state of the law in this area is confusing to say the least. Our appellate courts have held that the failure to immediately appeal one of these misnomered “final and appealable orders” results in a loss of the right to have the trial court action later reviewed. See Mineo v. Tancini, 349 Pa.Super. 115, 502 A.2d 1300 (1986), Fidelity Bank v. Duden, 361 Pa.Super. 124, 521 A.2d 958 (1987); (dissenting opinion by Del Sole, J.). This in and of itself invites cautious counsel, when faced with the difficult question of determining whether or not an order is appealable, to take an immediate appeal, delay the litigation at the trial level and further burden the appellate courts of Pennsylvania.

Further, the application of the rule of “final and appeal-able” is inconsistent. As an example, an order striking an affirmative defense raised in a new matter which alleges forgery of a document would be considered “final and appealable” for interlocutory appeal purposes. However, a trial court’s ruling during trial disallowing expert testimony to establish the alleged forgery would not be “final and appealable”. In either event, the result to the litigant is the same and in both cases the review of the respective orders could be postponed until the conclusion of all activity at the trial court level.

Recently, a panel of this court, in Elderkin v. Sedney, 354 Pa.Super. 253, 511 A.2d 858 (1986), held that a sanction order which prevented a party from introducing evidence at the time of trial and which was entered for failure to comply with pre-trial rulings was not final and appealable. Accordingly, the appeal was quashed. While this court sitting en banc in Fidelity Bank v. Duden, 361 Pa.Super. 124, 521 A.2d 958 (1987) questioned the analysis found in Elderkin, supra, and particularly the application of Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985) to that case, I wish to point out that the Supreme Court has reaffirmed the position taken in Elderkin by its decision in Bruno v. Elitzky, 515 Pa. 47, 526 A.2d 781 (1987).

In Bruno, supra, the Supreme Court quashed an appeal as interlocutory which was based upon a trial court’s order dismissing an answer and new matter filed by the defendants. The order was entered as a sanction for violation of the discovery rules when the defendants failed to answer interrogatories. The interesting aspect of the Bruno decision is in the Supreme Court’s holding that the review of the entry of the sanction order could await the final disposition of litigation. Nevertheless, the Majority would have us hold today that the review of a partial summary judgment order cannot await such a final disposition.

The law in this area, as I have said, is unclear and dangerous to litigants and lawyers. A total re-examination and re-evaluation must be forthcoming so that these interlocutory appeals which are taken from misnamed “final orders” would not be permitted.

Certainly, in this case, where the court has entered a partial summary judgment, no appeal should be permitted pending the final disposition of the underlying action. For the reasons set forth above, I respectfully dissent from the opinion of my colleagues.

BECK, J., joins.

MONTEMURO, Judge,

dissenting:

Although I join the majority’s well-reasoned analysis on the question of appealability, I cannot agree on the merits that the doctrine of collateral estoppel precludes Ms. Shepegi from raising her forgery defense in this action. I therefore dissent.

The majority recognizes that collateral estoppel will bar relitigation of an “issue of fact” only if the prior decision on that issue was essential to entry of a valid and final judgment. The majority also recognizes that the “issue of fact” at stake in Ms. Shepegi’s action to open the confessed judgment was the authenticity of the signature on the promissory note. The majority concludes, however, that the authenticity of the signature on the mortgage was “essential” to the trial court’s decision in the action to open and that the doctrine of collateral estoppel therefore precludes Ms. Shepegi from challenging in the present action the authenticity of that signature. In an effort to explain this non sequitur, the majority suggests that the parties in the action to open somehow agreed to “focus” on the authenticity of the mortgage signature as a means of conclusively establishing the authenticity of the promissory note signature. This implausible explanation has absolutely no support in the records of either the present action or the action to open. In the action to open, the parties submitted several documents to various handwriting experts to determine whether the documents contained the signature of Ms. Shepigi. For reasons unknown, the parties included among these documents copies of the mortgage, which was not then in issue, but failed to include copies of the promissory note upon which Mr. Zarnecki had confessed judgment. Nothing in the record indicates that the parties agreed to treat evidence of the mortgage signature as evidence of the promissory note signature. Neither the trial court nor the parties consciously recognized the authenticity of the mortgage signature as important to, much less determinative of, the issue then at hand. We should not allow a simple oversight in a prior action to bar Ms. Shepegi’s right to prove her defense in this action. I would therefore reverse the order of the trial court.

      . Elderkin involved a pre-trial sanctions order which precluded the defendants from entering any evidence in their own defense or from opposing the claims of the plaintiff. Our Supreme Court recently held that a pre-trial sanctions order which strikes a defendant’s New Matter is interlocutory. Bruno v. Elitzky, 515 Pa. 47, 526 A.2d 781 (1987). The result in Elderkin, quashing the appeal, is consistent with that reached by the Supreme Court in Bruno; we note that both Judge Del Sole in Elderkin and Mr. Justice Papadakos in Bruno emphasize the inevitable delays which result from allowing such appeals. See Pines, Pennsylvania Appellate Practice: Procedural Requirements and the Vagaries of Jurisdiction, 91 Dick.L.Rev. 55, 58 n. 6 (1986) (compiling statistics demonstrating magnitude of Pennsylvania appellate courts’ work loads). We do not today find it necessary to reach the question whether, post -Bruno, the Cohen collateral order test is properly applied in determining the appealability of a sanctions order precluding defendant from presenting affirmative defenses.
      The Bruno case does not require a result contrary to that reached in the instant appeal. The Supreme Court expressly limited its holding to cases where the order precluding defendants from presenting certain defenses was entered as a pre-trial sanction; Bruno did not affect the viability of previous caselaw regarding the appealability of orders which, on the substantive merits, declare that a party may not present certain defenses:
      Mr. Justice Hutchinson has entered a dissent groping with the viability of Grotta v. La Boccetta, 425 Pa. 620, 230 A.2d 206 (1967), which dealt with the substantive merits of an affirmative defense. By contrast, disposition of the case under review is based on the issue of a sanction order for failure to respond to interrogatories. This qualitative difference clearly distinguishes the two cases.
      515 Pa. 47, 50 n. 1, 526 A.2d 781, 782 n. 1. In the case at bar, the order appealed from, entered on the substantive merits, held that defendant was collaterally estopped from presenting a forgery defense. Thus, Bruno is inapplicable and does not affect our disposition of this appeal.

      . The record in the original case has been made a part of the record in this appeal.

      . As the lower court observed, a promissory note is commonly signed concurrently with a mortgage instrument.

      . The language of the order denying the petition to open confessed judgment clearly indicates that the question of the authenticity of the mortgage instrument was necessary to the court’s decision:
      AND NOW, to wit, this 27th day of April, 1983, pursuant to the parties’ stipulation concerning the expert, James D. King, and based on the March 15, 1983 opinion [of the expert], it is hereby ORDERED, ADJUDGED and DECREED, that Defendant’s Motion to Open Judgment is hereby DENIED. (s/Jess S. Jiuliante, Judge).


author: TAMILIA, Judge:

text:
    532 A.2d 882
    Brad AVRICH & Candice Avrich, Two Minors, by Jack AVRICH & Ginny Avrich, Their Parents and Natural Guardians and Jack Avrich & Ginny Avrich in Their Own Right, Appellants, v. GENERAL ACCIDENT INSURANCE CO., Universal Underwriters Insurance, Leon Rothrock and Daniels Cadillac.
    Superior Court of Pennsylvania.
    Argued Sept. 22, 1987.
    Filed Oct. 23, 1987.

      Norman E. Blatt, Jr., Allentown, for appellants.
    Kevin J. Kelleher, Bethlehem, for appellees.
    Before CIRILLO, President Judge, and McEWEN and TAMILIA, JJ.
   TAMILIA, Judge:

Appellants in this case appeal from a March 11, 1987 Order of the Lehigh County Court of Common Pleas which sustained the preliminary objections of appellee General Accident Insurance Company and dismissed appellants’ complaints.

The facts surrounding the appeal are that appellants Ginny Avrich and her two children, Brad and Candice Av-rich, were injured in an automobile accident on May 13, 1985, when the car operated by Mrs. Avrich collided with a car operated by Leon Rothrock. Appellants allege the cause of the accident was Rothrock’s failure to stop at a stop sign. Rothrock had been test-driving a vehicle owned by Daniels Cadillac, Inc. Daniels is insured by Universal Underwriters Insurance Company and Rothrock is insured through General Accident Insurance Company. Appellants submitted claims to both companies and were denied payment by each. General Accident denied the claim on the grounds that it is the excess carrier and is only liable for payments in excess of the coverage of Universal. Universal denied the claim on the basis that Leon Rothrock is not a named insured and that the appellants’ claim is outside the scope of the policy.

On September 10, 1986, appellants filed a complaint seeking a declaratory judgment of the insurers’ obligation to pay. General Accident filed preliminary objections to this complaint on December 10,1986. These objections were the appellants lacked standing to file a declaratory judgment, the appellants had no interest in any coverage questions between the appellees, no actual case or controversy existed and the controversy would not be terminated if appellants were granted the requested relief, and thus the court lacked jurisdiction. The court, after entertaining argument, entered the March 11, 1987 Order in question sustaining the preliminary objections. Appellants timely filed appeal on March 20, 1987.

After a thorough review of the record, this Court finds no error in the trial court’s determination that the relief sought by the appellants is outside the purview of the Declaratory Judgment Act. The Declaratory Judgment Act provides at 42 Pa.C.S.A. § 7532:

§ 7532. General scope of declaratory remedy
Courts of record, within their respective jurisdictions, shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect, and such declarations shall have the force and effect of a final judgment or decree.

According to the Court, in Cloonan v. Thornburgh, 103 Pa.Cmwlth. 1, 519 A.2d 1040 (1986) (citations omitted), “[t]he issuance of a declaratory judgment is a matter of judicial discretion which should only be exercised to illuminate an existing right, status or legal relation— The Declaratory Judgment Act, 42 Pa.C.S. §§ 7531-7541, is broad in scope and is to be liberally construed and administered, but it is not without its limitation.” Id. at —, 519 A.2d at 1045-46.

Although the granting of a declaratory judgment petition is a matter which is within the judicial discretion of the court, the availability of the declaratory judgment in a case of this nature must be determined on appeal. See Stevenson v. Stein, 412 Pa. 478, 195 A.2d 268 (1963); State Farm Mutual Automobile Insurance Co. v. Semple, 407 Pa. 572, 180 A.2d 925 (1962) and citations therein.

In South Whitehall Township v. Commonwealth Dept. of Transportation, 82 Pa.Cmwlth. 217, 475 A.2d 166 (1984), the Commonwealth Court said:

In seeking declaratory relief, a plaintiff must establish an interest which ‘must be a direct, substantial and present interest, as contrasted with a remote or speculative interest.’ For declaratory relief to be appropriate, there must exist an actual controversy.

Id. at 221, 475 A.2d at 169 (citations omitted).

The Commonwealth Court further noted in Chester Upland School District v. Commonwealth, 90 Pa.Cmwlth. 464, 495 A.2d 981 (1985):

Declaratory judgment is not appropriate to determine rights in anticipation of events which may never occur. It is an appropriate remedy only where a case presents antagonistic claims indicating imminent and inevitable litigation.

Id. at 468, 495 A.2d at 983 (citations omitted).

Appellants in the instant action have failed to demonstrate any direct, substantial and present interest on their part in having the insurance contracts in question construed, as they have not yet obtained a judgment in the personal injury case against any of the appellees. Since the negligent party .will not be determined until the outcome of that trial and appellees may not be found in any way liable, to seek a declaratory judgment to determine the duty of the insurers to pay is to seek to determine rights which may never occur. “The events which might bring these parties into actual conflict are thus too remote to justify our resolution of this dispute by declaratory judgment.” South Whitehall Township, supra 82 Pa.Cmwlth. at 221, 475 A.2d at 169.

Appellants urge their action falls within the confines of section 7533 of the Act. That section reads:

§ 7533. Construction of documents
Any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise, and obtain a declaration of rights, status, or other legal relations thereunder.

Their reliance upon this section is misplaced, however, since they are not parties to the insurance contract and they have no rights under the contracts.

Further, appellant's contention that Palladino v. Dunn, 361 Pa.Super. 99, 521 A.2d 946 (1987) gives tacit approval to declaratory judgments, under circumstances similar to those in the case at hand, fails. In Palladino, the accident which formed the underlying basis for the declaratory judgment action required a finding as to which policy covered the decedent. Ownership of the automobile was at issue since decedent refused to accept transfer of the car until she test-drove it, during which time she was killed. That issue was immediately before the court and required resolution so that a claim could be made against the appropriate insurer, that of decedent or that of the automobile agency. Here, we are c considering a third party claim, one step removed from the issue of coverage, as liability must be ascertained before a claim can be made against any insurer, whether it be that of appellants, appellee General Accident or appellee Underwriters. We sympathize with appellants that it would be helpful to know which insurer might be ultimately responsible for payment of a claim; however, until liability is established in the underlying claim, that issue is not before the trial court. Appellants are not privy to the insurance contracts and are premature in alleging rights as third party beneficiaries to have such a claim considered. We should not require a trial court to entertain a declaratory judgment proceeding because it might reduce delay in the ultimate resolution of an issue when it is uncertain that a determination requiring such a declaration will ever occur. It is also mere speculation on the part of appellants that if liability is established against Rothrock further litigation will be required to establish coverage between the two insurance carriers.

Order affirmed.

      . Appellants, in a separate action, also sought recovery from Rothrock and Daniels Cadillac for their personal injuries.


author: HESTER, Judge:

text:
    532 A.2d 885
    Richard L. WINTERS, Jr. and Marceil A. Winters Cooney, in their individual capacities and as Co-Administrators of the Estate of Leonard Benjamin Winters, Appellants, v. ERIE INSURANCE GROUP, Erie Insurance Exchange, and Erie Insurance Company.
    Superior Court of Pennsylvania.
    Argued June 10, 1987.
    Filed Oct. 23, 1987.

      William A. Hebe, Wellsboro, for appellants.

      Raymond E. Ginn, Jr., Wellsboro, for appellees.
    Before CIRILLO, President Judge, and OLSZEWSKI and HESTER, JJ.
   HESTER, Judge:

This appeal involves a dispute as to whether Erie Insurance Company is obligated to pay stipulated damages of $30,000 in uninsured motorist benefits to Richard L. Winters, Jr. and Marceil A. Winters Cooney, appellants. As we are persuaded that the arbitrators’ award in favor of Erie Insurance Company was contrary to law, we reverse and direct entry of judgment in the amount of $30,000 in favor of appellants.

The facts are not in dispute. Erie Insurance Company (“Erie”), appellee, issued an automobile insurance policy to appellants which included uninsured motorist coverage. On September 19,1982, appellants’ son, Leonard Benjamin Winters, was killed when he fell from the rear of a 1957 Willys Jeep while his family was cutting firewood at a logging site. The decedent’s uncle, Randel Winters, was the operator of the vehicle, which was owned by decedent’s grandmother. Decision of board of arbitrators at 1. The vehicle was not covered by any automobile insurance policy. Id. at 2. Appellants’ claim for uninsured motorist benefits from Erie was submitted to arbitration, with damages stipulated to be $30,000, the maximum coverage under the policy.

On July 17, 1986, the arbitrators entered judgment in favor of Erie on two bases. First, they concluded that the Jeep was not a motor vehicle within the meaning of the policy, reasoning that the Winters’ use of the Jeep principally for off-road logging activities precluded characterization of it as a motor vehicle under the following policy language: “ ‘motor vehicle’ ... means any two to six wheel land motor vehicle or trailer except: (a) a vehicle designed for use principally off public roads, while not on public roads____” They also found that appellants failed to prove that the vehicle was uninsured. The policy defines an uninsured motor vehicle, in relevant part, as “one for which there is no liability bond or insurance at the time of the accident in the amounts required by the financial responsibility law where the car we insure is principally garaged____” The Court of Common Pleas of Tioga County confirmed the award on September 30,1986, and this timely appeal followed.

Our threshold inquiry involves the proper scope of review as the parties have taken different positions on which standard applies. Erie argues that pursuant to 42 Pa.C.S. §§ 7314 and 7315, the arbitration award cannot be vacated absent a showing of fraud, failure of jurisdiction or other grounds therein enumerated, all of which are clearly inapplicable to this case.

Appellants counter that the applicable standard of review is found in 42 Pa.C.S. § 7302(d)(2), which provides that an arbitrator’s award may be modified or corrected where “the award is contrary to law and is such that had it been a verdict of a jury the court would have entered a different judgment or a judgment notwithstanding the verdict.”

Appellants further contend that Erie waived its right to argue that any other scope of review is applicable since it failed to raise this issue before the trial court. We agree. McDonald v. Keystone Insurance Co., 313 Pa.Super. 404, 407 n. 3, 459 A.2d 1292, 1294 n. 3 (1983); Kenworthy v. Burghart, 241 Pa.Super. 267, 271, 361 A.2d 335, 337 (1976) (where standard of review to be applied was not briefed or argued to the lower court, it was abandoned); see also Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); Ropka v. Government Employees Insurance Co., 347 Pa.Super. 507, 514, 500 A.2d 1171, 1175 (1985); Barton v. Penco, 292 Pa.Super. 202, 203 n. 2, 436 A.2d 1222, 1223 n. 2 (1981). McDonald is controlling. The McDonald litigants had argued during their trial court proceedings that the scope of review of the arbitrators’ award at issue was a contrary-to-law standard. On appeal, the appellee changed his position regarding the applicable standard of review, contending that a stricter standard governed. We ruled that the issue had been waived and reviewed the award under the contrary-to-law standard.

In this proceeding, Erie specifically argued to the trial court that the standard of review set forth in section 7302(d)(2) applied, and it cited the paragraph in its entirety. Brief of appellee, 9/2/86, at 3-4. Therefore, under McDonald, Erie’s position that a different standard applies has been waived.

Accordingly, we can modify or correct this award if it was contrary to law and the court would have entered a different judgment had the award been a jury verdict. As the facts in this case are not in dispute, the arbitrators did nothing more than interpret the insurance policy. Interpretation of an insurance policy is a question of law, Utica Mutual Insurance Co. v. Contrisciane, 504 Pa. 328, 334, 473 A.2d 1005, 1008 (1984); see also Houston v. National Mutual Insurance Co., 358 Pa.Super. 618, 518 A.2d 311 (1986); Timbrook v. Foremost Insurance Co., 324 Pa.Super. 384, 388, 471 A.2d 891, 893 (1984) (“The construction of a written contract of insurance is a matter of law for the court.”), and we do not agree with the arbitrators’ interpretation of this policy.

We hold that the construction placed on the insurance contract by the arbitrators is contrary to both common sense and basic legal principles regarding the construction of insurance contracts. Before analyzing the award at issue, these principles require reiteration to provide a contextual background for the process of interpretation.

Policy clauses providing coverage are interpreted in a manner which affords the greatest possible protection to the insured. Mohn v. American Casualty Co., 458 Pa. 576, 326 A.2d 346 (1974); Burne v. Franklin Life Insurance Co., 451 Pa. 218, 301 A.2d 799 (1973); Eichelberger v. Warner, 290 Pa.Super. 269, 434 A.2d 747 (1981). The insured’s reasonable expectations are the focal point in reading the contract language. Collister v. Nationwide Life Insurance Co., 479 Pa. 579, 388 A.2d 1346 (1978). In Collister, we were admonished:

Courts should be concerned with assuring that the insurance purchasing public’s reasonable expectations are fulfilled. Thus, regardless of the ambiguity, or lack thereof, inherent in a given set of insurance documents ... the public has a right to expect that they will receive something of comparable value in return for the premium paid.

Id., 479 Pa. at 594, 388 A.2d at 1353-54; accord State Automobile Insurance Ass’n v. Anderson, 365 Pa.Super. 85, 528 A.2d 1374 (1987); Huffman v. Aetna Life & Casualty Co., 337 Pa.Super. 274, 486 A.2d 1330 (1984).

Moreover, the language of an insurance contract should be given its ordinary and usual meaning unless it is clear that some other meaning was intended by the parties. Sparler v. Fireman’s Insurance Co., 360 Pa.Super. 597, 607 n. 1, 521 A.2d 433, 438 n. 1 (1987). Thus, clear meaning of language cannot be ignored by the judiciary. Guardian Life Insurance Co. v. Zerance, 505 Pa. 345, 479 A.2d 949 (1984).

If, however, the language is contextually or otherwise ambiguous, the insured receives the benefit of the doubt, and the policy language is construed in his favor. D’Allessandro v. Durham Life Insurance Co., 503 Pa. 33, 467 A.2d 1303 (1983); Musisko v. Equitable Life Assurance Society, 344 Pa.Super. 101, 496 A.2d 28 (1985). This is so because:

[WJords which are unambiguous in one context may become susceptible to more than one interpretation when applied to a particular set of facts, it is incumbent upon the insurance company, as draftor of the policy, to delineate as precisely as possible the full extent of coverage or bear the consequence for failing to do so.

Techalloy Co. v. Reliance Insurance Co., 338 Pa.Super. 1, 7, 487 A.2d 820, 823-24 (1984).

The arbitrators in this case determined that the Jeep was not a motor vehicle since it was principally used for off-road activities. This, however, is not determinative of whether the Jeep was a motor vehicle within the meaning of the policy, which defines motor vehicle as “any two to six wheel land motor vehicle except ... a vehicle designed for use principally off public roads.” Appellants did not design the Jeep, the manufacturer designed it. This policy language clearly defines “motor vehicle” not by reference to the actual use of the vehicle, but by the use for which the vehicle was designed.

The case of Senft v. Keystone Insurance Co., 331 Pa.Super. 38, 41, 479 A.2d 1066, 1068 (1984), provides guidance. There we stated that an unregistered 1966 Ford Sedan was “designed primarily for highway use” even though the owner actually used the vehicle exclusively on his farm. Cf Pistorius v. Travelers Insurance Co., 348 Pa.Super. 527, 502 A.2d 670 (1985), allocatur granted, 512 Pa. 361, 516 A.2d 1186 (1986) (dirt bike that was not designed to be used on public highways and was not equipped for licensing under the Vehicle Code was not a motor vehicle under the former No-fault Motor Vehicle Insurance Act).

The reasonable construction of this clear language provides coverage for a land motor vehicle if the motor vehicle was manufactured for use on public roads, i.e., if it was required to be registered under the Vehicle Code due to its customary use on public roads. Appellants’ Jeep, though not registered at the time of the fatal accident, is a motor vehicle under the Vehicle Code. See 75 Pa.C.S. §§ 1301(a), 1302. The insureds expected any accident involving an uninsured motor vehicle to be covered by the policy, and they paid for that coverage.

The arbitrators also found that appellants failed to prove that the car was uninsured by failing to prove that no other coverage existed for the accident. Decision of board of arbitrators at 3-4. That is not what appellants were required to prove under the insurance policy, which states that an uninsured motor vehicle is: “(1) one for which there is no liability bond or insurance at the time of the accident in the amounts required by the financial responsibility law where the car we insure is principally garaged; or (2) one for which the insuring company denies coverage or is or becomes insolvent____” Erie does not dispute the fact that the Jeep was not insured on an automobile insurance policy. See Decision of board of arbitrators at 2 (“The Jeep ... was not ... insured on an auto policy at the time of the accident, nor had it been for a long period of time prior to the accident.”); appellee’s brief at 17 (“At the time of the accident [the Jeep] ... was not insured under a standard automobile policy.”).

Inexplicably, both Erie and the arbitrators view the fact that the Jeep was not listed on an insurance policy as irrelevant. The arbitrators support this view by stating: “In any event, it would be error of law for us to conclude that the mere failure to list the Jeep on some other auto insurance policy meant that Plaintiffs could claim uninsured coverage against Erie. See State Farm Mutual Automobile Insurance Company v. Williams, Pa., 392 A.2d 281 (1978).” Decision of board of arbitrators at 3.

The fact that the Jeep was not listed on an automobile policy, however, is precisely what makes it an uninsured motor vehicle under the insurance policy definition. The case cited by the arbitrators, State Farm Mutual Automobile Insurance Co. v. Williams, 481 Pa. 130, 392 A.2d 281 (1978), does not require a different result. In fact, State Farm supports our conclusion that coverage exists, as the supreme court specifically noted in that case that the protection afforded by uninsured motorist coverage, which is determined by reference to the policy language, may be enhanced beyond that required by the Uninsured Motorist Act. Id., 481 Pa. at 139-40, 392 A.2d at 285.

Thus, the specific policy’s language is what we use to determine coverage. See also Parsons v. State Farm Mutual Automobile Insurance Co., 335 Pa.Super. 394, 484 A.2d 192 (1984). In this case, there is no dispute that the owner and operator of the Jeep did not have insurance for the Jeep at the time of the accident. It was, therefore, an uninsured motor vehicle within the meaning of the policy.

Order reversed. It is hereby ordered that judgment in the amount of $30,000 be entered in favor of appellants and against appellee.

      . Ironically, appellants’ homeowners insurer refused coverage for the accident because the homeowners policy excluded coverage for accidents involving motor vehicles, and the insurer considered the Jeep to be a motor vehicle.

      . The arbitrators ignored the first definition of an uninsured motor vehicle, and did not mention it in their award. The definition is stated in the alternative, however, and since we hold that the motor vehicle was uninsured within the meaning of clause (1), discussion of clause (2) is unnecessary.