author: CIRILLO, President Judge Emeritus:

text:
    674 A.2d 1099
    Gardner FLYNN and Joan Flynn, h/w v. CASA DI BERTACCHI CORP., Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 6, 1996.
    Filed April 9, 1996.

      Curtis P. Cheyney, III, Stephen A. Search, Philadelphia, for appellant.
    John Craynock, Westchester, for appellees.
    Before CIRILLO, President Judge Emeritus, BECK, J., and CERCONE, President Judge Emeritus.
   CIRILLO, President Judge Emeritus:

This is an appeal from an order denying a petition to open and/or strike a default judgment. We vacate the order and remand.

The present case involves claims by appellees, Gardner and Joan Flynn (collectively, the Flynns), arising out of injuries sustained when Mr. Flynn allegedly fell while working as a contractor at the Casa Di Bertacchi Corporation (Casa) food processing plant. The Flynns alleged that Casa had negligently failed to maintain safe working conditions and had failed to warn the contractors of the dangerous condition of the floor of the plant. This action seeking arbitration was originally filed on November 21, 1994, and served upon Casa on November 28, 1994. Two months earlier, the Flynns had sent a copy of the complaint they intended to file to Casa’s insurer, The Home Insurance Company (Home). Neither Casa nor Home filed an answer to the Flynns’ complaint, which included a notice to defend, within the required twenty-days. See Pa.R.C.P. 1026(a), 42 Pa.C.S.A.

On January 5, 1995, the Flynns served notice of their intention to enter default judgment to both Casa and Home. When the defendant and its insurer still failed to respond, the Flynns’ counsel called the insurer and spoke to the claims representative to which the file had been assigned. Counsel agreed to an extension in which to file an answer to the Flynns’ complaint. Following this conversation, the claims representative sent a letter to the Flynns’ counsel, which stated:

This is to confirm your telephone conversation with this office in which you granted us an extension of time in which to answer or otherwise plead in the above matter on behalf of RICH PRODUCTS.
This extension is up to and including February 15,1995. Please verify the above by signing the enclosed copy of this letter and returning it to this office in the enclosed self-addressed, stamped envelope.
Letter dated 2/1/95.

The Flynns’ counsel sent the following reply:

I have received your letter dated February 1, 1995. This will confirm that we had a pleasant conversation regarding this matter, in which I granted an extension to February 15, 1995 for you to review the file. It will also confirm that I would certainly work with you if you needed further time. However, the Complaint was filed in this case on November 24, 1994 with an arbitration hearing assigned for July 24, 1995. Further, I served a Notice of Intention to Take Default Judgment upon your insured, and sent a copy of same to your company almost a month ago. Accordingly, I did not and cannot grant an' extension to “otherwise plead” in response to the Complaint. The extension applies only to an answer.
Letter dated 2/3/95.

February 15, 1995 passed without the filing of a responsive pleading or any call or contact to the Flynns’ counsel by either Casa, Home or its counsel. The Flynns’ praecipe for default judgment was filed on February 21,1995. Subsequently, Casa filed a petition to open and/or strike the default judgment on March 16, 1995, which was denied. Casa appeals and argues that the trial court erred by denying its petition to strike or open the default judgment.

The law is well settled that the decision concerning whether to open a default judgment lies within the sound discretion of the trial court and its decision will not be reversed absent a manifest abuse of discretion or error of law. Bittenbender v. Southeastern Pennsylvania Transportation Authority, 362 Pa.Super. 243, 248, 523 A.2d 1173, 1176 (1987) (citations omitted). An abuse of discretion occurs when the law is overridden or misapplied, or when it is clear that the judgment is manifestly unreasonable or the result of passion, prejudice, bias or ill-will. Castings Condominium Assoc., Inc. v. Klein, et al., 444 Pa.Super. 68, 663 A.2d 220, 223 (1995) (citations omitted).

A petition to open a default judgment is addressed to the equitable powers of the court. Castings, supra. In reviewing the trial court’s refusal to open the default judgment, the appellate court must also determine “whether there are equitable considerations which weigh in favor of opening the default judgment and allowing the defendant to defend the case on the merits. [WJhere the equities warrant opening a default judgment, this Court will not hesitate to find an abuse of discretion.” Id. (quoting Duckson v. Wee Wheelers, Inc., 423 Pa.Super. 251, 254-57, 620 A.2d 1206, 1208-09 (1993)).

The party seeking relief from a default judgment must establish three elements: (1) the petition was timely filed; (2) a reasonable explanation or excuse for the default; and (3) the petitioner had a meritorious defense to the underlying claim. Castings, supra.

The trial court found that Casa had promptly filed its petition and that the defenses of comparative negligence by the plaintiff and reasonable care on the part of Casa were arguably meritorious. The court then determined that Casa failed to offer any explanation for its complete failure to take any action from the service of the complaint until over two weeks after the default judgment had been entered.

Although the law does not establish a specific period of time within which a petition to open or strike a judgment must be filed in order to be timely, the court must consider the length of time from the date that notice of the entry of judgment was received and the reason for the delay in filing the petition. Quatrochi v. Gaiters, 251 Pa.Super. 115, 122, 380 A.2d 404, 407 (1977). A review of Pennsylvania’s previous decisions discloses that fourteen days between the notice of entry of judgment and the filing of the petition was found to be timely, Alba v. Urology Associates of Kingston, 409 Pa.Super. 406, 598 A.2d 57 (1991), but that a seventeen day delay between the time when an appellant learned of the default judgment was not prompt. McCoy v. Public Acceptance Corp. et al., 451 Pa. 495, 305 A.2d 698 (1973).

Instantly, the appellant received notice of the default judgment on February 21, 1995. Seventeen days later, on March 10, 1995, counsel for the insurer filed an appearance and the petition to open and/or strike the judgment. The trial court was generous in its conclusion that the petition was timely filed, in light of the previous inactivity by Casa and Home, clearly demonstrating that there was no passion, prejudice, bias, or ill-will underlying the court’s decision. Castings, supra.

Casa asserts, as the excuse for its delay which caused the default, that it relied on its insurer to protect its interest. Generally, a defendant’s justifiable belief that its legal interests are being protected by its insurance company is sufficient legal justification for an insured’s relief from default. Autologic, Inc. v. Cristinzio Movers, 333 Pa.Super. 173, 481 A.2d 1362 (1984). The insured, however, will be precluded from asserting a justifiable belief that its interests were being protected where the insured fails to inquire of the insurer as to the status of the case after it receives notification of the other party’s intention to seek a default judgment. Id.

Casa relies on Duckson, supra, in support of its assertion of a justifiable belief that its insurer was protecting its interest; this reliance is misplaced. In Duckson, we held that an unsophisticated defendant, without any systems in place for monitoring claims lodged against it, would not be held strictly responsible for its failure to question the insurer handling the claim, where opposing counsel knew of insurer’s intent to defend the claim prior to sending notice of intent to enter a default judgment. The named defendant in Duckson received the complaint on December 4, 1991 which meant that its answer was technically due on December 24, 1991. The default judgment was entered on January 23, 1991 — only thirty-one days later. The appellant offered the following as the explanation for its delay: the complaint was delivered to its insurance agency the day after it was received; the agency sent the paperwork to the insurer, who received it on or about December 16, 1991; the insurer inadvertently assigned the case to two different attorneys, which caused considerable confusion and further delay; the transmittal delays were due, in part, to the year-end holidays; appellant’s counsel made several attempts to contact opposing counsel, but neither the attorney nor his office returned the calls; and the petition to open the default judgment was filed in one day. We determined that appellant had sufficiently demonstrated that the delay was the result of an oversight, and was not a deliberate decision not to defend or a deliberate attempt to prejudice the establishment of the plaintiffs case. We further determined that failure of plaintiffs counsel to cooperate was an equitable consideration which compelled opening of the default judgment. We also noted that “a thorough search of case law reveals that in cases where this court refused to accept the excuse of justifiable reliance, (1) the insured was a sophisticated insured with some procedure in place for monitoring claims and (2) the delays, in all cases, were considerably longer” than thirty-one days. Id. at 259, 620 A.2d at 1211.

Instantly, Casa is a corporate entity, and it is noteworthy that Casa makes no claim that it lacks an in-house system for monitoring claims against it. It was, therefore, incumbent upon Casa to seek reassurance from its insurer when it received notification of the Flynns’ intent to seek a default judgment. Autologic, supra. Additionally, Casa’s response was due on December 18, 1994 and sixty-five days passed without a response before the entry of the default judgment. Casa has failed to convince this court that we should accept the excuse that it justifiably relied on its insurer. Duckson, supra.

Moreover, it was the Flynns’ counsel who called the insurer, one month after the notification of the intent to enter the default judgment, and agreed to grant an extension until February 15, 1995. The insurer did make one unsuccessful attempt to contact the Flynns’ counsel two days after the extension period expired, but apparently did not follow-up further after that date. The insurer did not even assign the case to counsel until after entry of the default judgment, despite having notice as early as November, 1993. Clearly, it was not plaintiffs counsel who failed to cooperate. Duckson, supra.

Ultimately, Casa has offered no excuse, reasonable or otherwise, to explain its failure to act. There are no circumstances, such as those offered in Duckson, from which the court could determine that Casa’s actions were not an attempt to impede the Flynns’ from establishing their claim. Duckson, supra. “The trial court cannot open a default judgment based on the ‘equities’ of the case when the defendant has failed to establish all three of the required criteria.” Castings, supra. Hence, we find no abuse of discretion or misapplication of the law concerning the trial court’s refusal to open the default judgment.

Casa also argues that it justifiably relied on the representation by the Flynns’ counsel that he would work with the insurer if it needed further extensions, and that Casa had a reasonable belief that it was no longer in danger of a default judgment after this communication, since no further notice was sent to the named defendant prior to entry of the judgment.

Former Rule 237.1, which was effective until July 1, 1995 and therefore governs this case, provided an exception to the ten-day notice requirement when the parties agreed to extend the time to plead. So long as the agreement specified a time within which action must be taken, if such action was not taken, the default judgment could be entered without “further discussion or warning.” Johnson v. Southeastern Pennsylvania Transportation Authority, 524 Pa. 209, 217, 570 A.2d 71, 74 (1990). Here, the letter from the Flynns’ counsel specifically granted an extension to file an answer by February 15, 1995, in very definite terms. Thus, no notification would have been required, and this claim must fail.

As of July 1, 1995, the effective date of the amended Rule 237.1, notice of an intent to enter judgment of non pros or in default must be sent in all cases prior to the entry of judgment, and cannot be waived. Pa.R.C.P. 237.1(a)(4). The exception to the ten-day notice requirement that was provided in the previous rule no longer exists. Therefore, regardless of whether or not there is an agreement to extend the time within which to plead, notice and the certification required under Rule 237 must be presented prior to the entry of judgment. The notice, however, need only be given once.

Situations such as the one presented herein, where notice was given prior to the agreement to extend the time to plead, are governed by a new rule — Rule 237.2, which states:

After the notice of intention to enter judgment required by Rule 237.1 has been given, the parties may agree in writing to extend the time within which to file a complaint, an answer or preliminary objections. The agreement shall be in the form prescribed by Rule 237.6 and shall be signed on behalf of both parties. If the required action is not taken within the time specified in the agreement, judgment of non pros or by default may be entered without farther notice under Rule 237.1.

Pa.R.C.P. 237.2 (effective July 1, 1995) (emphasis added). Once the ten-day notice is given, if the parties subsequently agree to extend the time in which to plead or answer, no additional notice is required, see Pa.R.C.P. 237.2, Note and Illustration No. 3, and Casa’s argument would still fail.

We also stress that informal letters of agreement such as were utilized here and which were previously accepted, see Johnson, supra (“exchange of letters” manifesting a meeting of the minds as to the specific period for extension satisfies informal' requirements of Rule 237); Miller Block Co. v. U.S. National Bank, 389 Pa.Super. 461, 567 A.2d 695 (1989) (same); see also Kooker v. Chido, 448 Pa.Super. 92, 670 A.2d 694 (1995) (clearly identified time period for expiration of agreement met informal requirement for correspondence under rule), are now contraindicated by this new rule.

As the language instructs, “[t]he agreement shall be in the form prescribed by Rule 237.6” and “shall be signed by both parties.” Pa.R.C.P. 237.2. The rule requires that agreements be in the form specified in Rule 237.6. As the note explains, “parties who follow the form should avoid problems of ambiguous agreements. The form is to be signed by both parties, eliminating the dispute as to whether a particular party has agreed to an extension of time.” Counsel should take heed of the warning in the note that “[pjarties who do not follow the form do so at their peril.”

Casa next asserts that the default judgment should be stricken since the Flynns’ complaint sought an amount in excess of that within the jurisdiction of the arbitration panel, pursuant to 42 Pa.C.S.A. § 7361(b). Casa argues that this is a fatal defect on the face of the record, thereby making the default judgment a nullity. The Flynns, on the other hand, argue that this was a typographical error, and that a complaint seeking arbitration concedes the jurisdictional amount established by law.

A motion to strike a judgment operates as a demurrer to the record which will only be granted if a fatal defect or irregularity appears on the face of the record or judgment. Manor Building Carp. v. Manor Complex Associates, Ltd., 435 Pa.Super. 246, 645 A.2d 843 (1994). The defect alleged to appear from the face of the judgment or which is a matter of record must be specified in the petition or application for relief. Id.

A judgment is void on its face if one or more of three jurisdictional elements is found absent: jurisdiction of the parties; subject matter jurisdiction; or the power or authority to render the particular judgment. Roberts v. Gibson, 214 Pa.Super. 220, 251 A.2d 799 (1969); see also DeCoatsworth v. Jones, 414 Pa.Super. 589, 607 A.2d 1094 (1992), rev’d on other grounds, 536 Pa. 414, 639 A.2d 792 (1994). The term “jurisdiction” relates to the competency of the individual court, administrative body, or other tribunal to determine controversies of the general class to which a particular case belongs. Commonwealth v. McNeil, 445 Pa.Super. 526, 665 A.2d 1247 (1995). Moreover, it is never too late to attack a judgment or decree for want of jurisdiction, as any such judgment or decree rendered by a court which lacks jurisdiction of the subject matter or the person is null and void, and can be attacked by the parties at any time. DeCoatsworth, supra (citations omitted). A petition to strike a judgment founded on a jurisdictional deficiency is therefore not subject to the same “timeliness” considerations as a petition to open the judgment.

With regard to the instant case, the rule of judicial procedure concerning actions which seek compulsory arbitration provides in pertinent part that:

(b) Limitations. — No matter shall be referred under subsection (a):
******
(2) where the amount in controversy, exclusive of interest and costs, exceeds:
(i) $50,000 in judicial districts....

42 Pa.C.S.A. § 7361(b)(2)(i). The statute clearly and unequivocally states that compulsory arbitration is not available under this section in any action in which the plaintiff seeks to recover an amount which is greater than the $50,000 limit. Additionally, in an action seeking compulsory arbitration, Pa. R.C.P. 1021(c) directs that “the plaintiff shall state whether the amount does or does not exceed the jurisdictional amount requiring arbitration referral by local rule.” Pa.R.C.P. 1021(c), 42 Pa.C.S.A.

The Flynns’ complaint, however, seeks a recovery for each of them separately “in an amount in excess of $50,000.” The asserted typographical error thus appears not once, but twice in the complaint. The complaint as filed, and upon which the prothonotary entered the default judgment, was clearly beyond the jurisdiction of the arbitration board. A review of the relevant case law leads us to conclude that the trial court did not go far enough in its analysis of Casa’s petition.

In Leomporra v. American Baking Co., Inc., 198 Pa.Super. 545, 178 A.2d 806 (1962), this court found that when the amount in controversy was beyond the county court’s jurisdiction, the judgment entered by confession was void, and should be stricken without reference to the merits of the plaintiffs case.

Similarly, we have determined that an amount claimed by the plaintiff shall be conclusive as to the jurisdiction of the tribunal. Baker v. Carter, 103 Pa.Super. 344, 157 A. 211 (1931). The Baker court held that when the sum claimed by the plaintiff was outside the jurisdiction of the municipal court, “the judgment should not have been entered, but having been inadvertently done, should have been stricken off by the court for want of jurisdiction apparent on the face of the record.” Id. at 346, 157 A. at 212.

Accordingly, the motions judge in the instant case should have stricken the default judgment as it was null and void for want of jurisdiction. The plaintiffs should then be permitted to amend their complaint which, considering the assertion, that it was a mere typographical error, can be accomplished readily. The court should also order the defendant to respond to the amended complaint within a specified time period, or be subject to sanctions. See C.R. By Dunn v. The Travelers, 426 Pa.Super. 92, 626 A.2d 588 (1993).

The order is vacated and the case remanded for entry of an order consistent with this opinion.

Jurisdiction relinquished.

      . Although not applicable to this case, on July 1, 1995 a new procedural rule went into effect intended to ease the burden for parties who move promptly for relief from judgment entered by default or non pros. The new rule provides that if a petition for relief from a default judgment is filed within ten days after entry of the judgment on the docket, the court shall open the judgment if the petitioner’s answer states a’ meritorious defense. Pa.R.C.P. 237.3 (effective July 1, 1995).
      However, as the note to Rule 237.3 illustrates, if the petition is not filed within the ten day period, the petition is not within the scope of the rule and the petitioner must demonstrate to the court "not only that the verified pleading attached to the petition states a meritorious defense but also that the filing of the petition was timely and that there was a reasonable explanation or legitimate excuse for the delay or inactivity.” Rule 237.3 does not change the law of opening judgments for petitions filed after ten days from the entry of judgment.

      . Casa does not, however, offer any explanation for the delay in filing the petition for relief from the default judgment.

      . Casa alleges that it was surprised by the default judgment because (1) one and one-half months had passed since the 10-day notice was sent to the named defendant; (2) counsel had agreed to an extension; and (3) it was in a posture to believe that it would not suffer a default judgment. Casa asserts that "surprise judgments are the evil that Rule 237.1 was designed to erase," and that, to be fair, additional notice should have been sent. Casa has failed, however, to present this court with any case law in support of its argument, and relies solely on selected excerpts from the 1979 explanatory note to the rule. Counsel does not even cite the language of the rule on which it relies in support of its argument. Because an issue not supported by authority is deemed waived, see Ibn-Sadiika v. Riester, 380 Pa.Super. 397, 551 A.2d 1112 (1988), we need not consider the merits of this claim. We address it here, however, solely to point out the changes to the rule.

      . Casa’s petition for relief from the judgment consists of two separate counts. The first count requests the court to open the judgment, and the second count contains the averments for the petition to strike. This format is recommended, since the petition to strike and the petition to open judgment are two different forms of relief with separate remedies. See Manor Building Corp. v. Manor Complex Associates, Ltd., 435 Pa.Super. 246, 645 A.2d 843 (1994) (petition to strike reaches defects apparent on the face of the record, while petition to open offers to show that defendant can prove defense to all or part of plaintiff's claims).
      The trial court opinion, however, concludes that the only issue on appeal concerns its denial of the petition to open, and does not make a single reference to the petition to strike. The order however, specifically denied Casa's “petition to open and/or strike” the default judgment.

      . The order to strike the judgment in this case was subsequently reversed by an en banc panel of this court. Leomporra v. American Baking Co., 198 Pa.Super. 545, 182 A.2d 917 (1962) (en banc). In Leomporra, it was plaintiff’s request for attorney's fees which brought the amount in controversy outside the jurisdictional limit of the court, and the order to strike the judgment might have deprived the plaintiff of any remedy to recover the fees since a separate action could not be brought to recover them. We found that striking the judgment was unduly harsh under these circumstances, especially where the defendant’s right to contest the claim was not prejudiced. We also noted that the case could be certified to the correct tribunal when it was originally filed in error in the wrong court. We then allowed plaintiff thirty days in which to transfer the case to the correct court before an order to strike the judgment would be made absolute. This decision upon reconsideration in no way affected the general rule that where the jurisdiction of the court is limited to a certain amount, the court does not have the power to consider actions which allege damages in excess of that amount.
      Here, however, there is no evidence that the Flynns filed an action seeking arbitration in error and no circumstances which would make striking the judgment unduly harsh to these plaintiffs.

      . The judgment in Baker was entered due to the defendant’s failure to file an affidavit of defense, which is essentially a default judgment.


source: Caselaw Access Project

author: HUDOCK, Judge:

license: Public Domain

text:
    674 A.2d 1106
    Alan R. and Amy A. TRESKI and Joseph and Patricia Tracy and William and Josephine Schneider, on behalf of themselves and all others similarly situated, Appellants, v. KEMPER NATIONAL INSURANCE COMPANIES d/b/a American Motorists Insurance Company and CNA Insurance Companies d/b/a Continental Casualty Co. and General Accident Co. of America, on behalf of themselves and all others similarly situated, Appellees.
    Superior Court of Pennsylvania.
    Argued Feb. 27, 1996.
    Filed April 8, 1996.

      Jay S. Cohen, Lower Gwynedd, for appellants.
    James C. Haggerty, Philadelphia, for Kemper National Insurance, appellee.
    James Nyeste, Chicago, IL, for Continental Casualty, appellee.
    Before BECK, HUDOCK and JAMIESON, JJ.
   HUDOCK, Judge:

In this appeal we must decide whether Appellants have standing to assert a cause of action against Appellee insurance companies for an alleged violation of the Uniform Trade Practices and Consumer Protection Law (UTPCPL) and negligent misrepresentation. Finding that Appellants are not “aggrieved persons” and thus lack standing, we affirm the trial court’s order which sustained Appellees’ preliminary objections and dismissed Appellants’ bilateral class action complaint.

Appellants, three married couples who reside in Pennsylvania and purchased automobile insurance policies from the Appellee insurance companies, (Insurers) filed a class action suit on September 29, 1994 against the named insurers and all other similarly situated insurance companies. Appellants raised two counts, one based on an alleged violation of the UTPCPL, 73 P.S. section 201-1 et seq., and one based on negligent misrepresentation. Appellants explained in their complaint that when they purchased their automobile insurance policies, the respective insurer advised them that they could purchase either “full tort” or “limited tort” coverage as defined in the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S.A. section 1701 et seq. See 75 Pa.C.S.A. section 1705(c) and (d) for an explanation of full tort and limited tort alternatives. Each respective insurer gave Appellants the required statutory notice set forth in 75 Pa. C.S.A. section 1791.1(b), which advised them of their right to elect the full tort or limited tort option. The form notice of tort options given to Appellants stated:

The laws of the Commonwealth of Pennsylvania give you the right to choose either of the following two tort options:
A. “Limited Tort” Option — This form of insurance limits your right and the rights of members of your household to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other household members covered under this policy may seek recovery for all medical and other out-of-pocket expenses, but not for pain and suffering or other nonmonetary damages unless the injuries suffered fall within the definition of “serious injury,” as set forth in the policy, or unless one of several other exceptions noted in the policy applies.
B. “Full Tort” Option — This form of insurance allows you to maintain an unrestricted right for yourself and other members of your household to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other household members covered under this policy may seek recovery for all medical and other out-of-pocket expenses and may also seek financial compensation for pain and suffering or other nonmonetary damages as a result of injuries caused by other drivers.
If you wish to change the tort option that currently applies to your policy, you must notify your agent, broker or company and request and complete the appropriate form.

75 Pa.C.S.A. § 1791.1(b) (emphasis added).

Appellants signed the notice and selected the full tort option under section 1705(a)(1)(B). Under this full tort option Appellants preserved an “unrestricted right” to seek all alleged tort damages including non-economic damages for pain and suffering. See 75 Pa.C.S.A. § 1705(a)(1)(B) and § 1705(c). By choosing the full tort option, Appellants agreed to pay a higher premium in exchange for more comprehensive tort coverage. If Appellants had chosen the limited tort option, they would have paid lower insurance premiums, but would be unable to recover for non-economic damages unless they suffered a “serious injury” as defined by section 1702 of the MVFRL. See 75 Pa.C.S.A. § 1705(d).

Appellants brought suit on behalf of themselves and all similarly situated persons and businesses residing in southeastern Pennsylvania who purchased automobile insurance policies from Appellees or any member of the defendant class and elected the full tort option since July 1, 1990. Appellants Joseph and Patricia Tracy also brought the action on behalf of a sub-class of Pennsylvania policyholders who were injured in an automobile accident in New Jersey since July 1, 1990 and whose full tort policy claim was denied because of the New Jersey law, N.J.S.A. 17:28-1.4, known as the “Deemer Statute.” Appellants defined the defendant class as “all insurance companies who have issued automobile insurance policies in Pennsylvania with the full tort option since July 1,1990 and have also coextensively issued automobile insurance policies in the state of New Jersey during that time frame.” See Appellants’ Complaint, ¶ 14.

Similar to the Pennsylvania MVFRL, New Jersey law provides insureds two options of tort recovery — full tort or basic tort. The basic tort option, also known as the “verbal threshold” option, is similar to the Pennsylvania limited tort option as it limits the insured’s right to recover for non-economic damages unless the injuries sustained satisfy at least one of nine statutorily enumerated categories. N.J.S.A. 39:6A-8(a). The full tort option in New Jersey, also known as “no threshold”, is analogous to the Pennsylvania full tort coverage. This option allows the insured to recover for all damages, including pain and suffering, without any proof of a serious injury. N.J.S.A. 39:6A-8(b). Unlike section 1705(a)(3) of the Pennsylvania MVFRL, if an insured fails to make an election of tort recovery in New Jersey, he is presumed to have chosen the basic tort or verbal threshold coverage. See N.J.S.A. 39:6A-8.

The New Jersey Legislature also enacted a provision in its motor vehicle law known as the Deemer statute, which preeludes non-resident insureds from selecting the full tort recovery. See supra n. 3. The effect of the Deemer statute is to subject out of state drivers to a verbal threshold which requires an injured plaintiff to prove serious injury before he may pursue civil damages for non-economic loss if the insured’s insurance carrier is authorized to issue motor vehicle liability insurance coverage in New Jersey. All non-resident insureds who purchase insurance from a company licensed in both New Jersey and in their home state are “deemed” by operation of law to have selected the basic tort option under New Jersey law. This statute only applies if the non-resident insured purchased their policy from an insurance company which is licensed in New Jersey and another state in the U.S. or a province of Canada. If the insurer is not licensed to do business in New Jersey, the Deemer statute does not bar a non-resident’s claim for non-economic losses.

In Count I of their complaint, Appellants averred that Insurers engaged in unfair or deceptive acts or practices in violation of the Pennsylvania UTPCPL, 73 P.S. section 201-2(4). Appellants alleged that Insurers failed to adequately inform them of the effect of the New Jersey Deemer statute on their ability to recover for non-economic losses if they were injured in an accident in New Jersey. Appellants claimed that Insurers, who were authorized to transact insurance business in New Jersey and sold them a policy in Pennsylvania, knew that despite the election of full tort under the Pennsylvania MVFRL, Appellants would not be permitted to recover damages for non-economic losses in New Jersey unless they met the verbal threshold by sustaining a serious injury. Appellants claimed that the notice Insurers provided them, which stated that they would have the “unrestricted right” to sue for non-economic injuries, was deceptive in that it did not fully disclose that the New Jersey Deemer statute would limit their full tort recovery. Specifically, Appellants claimed that Insurers violated section 201-2(4)(v) and (vii) of the UTPCPL which define unfair or deceptive acts or practices as:

(v) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation or connection that he does not have;
(vii) Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another[.]

73 P.S. §§ 201-2(4)(v) and (vii).

Appellants also averred in Count II of the complaint that Insurers negligently misrepresented the extent of full tort coverage they would be entitled to in New Jersey. Appellants claimed that they were induced to purchase automobile insurance from Insurers with full tort coverage based on the misrepresentation that they would have the unrestricted right to recover for pain and suffering. Appellants sought money damages to reimburse them for the higher premiums they paid for full tort recovery without knowing that their recovery might be limited if New Jersey law applied. In addition to compensatory damages Appellants requested a declaratory judgment against Insurers forcing them to advise their policyholders regarding “the effect and nature of the New Jersey Deemer Statute as it applies to the election of the full tort option in Pennsylvania!)]” See Appellants’ Complaint, Prayer for Relief.

Insurers filed preliminary objections asserting numerous objections, including: (1) lack of subject matter jurisdiction based on Appellants’ failure to exhaust administrative remedies; (2) Appellants’ lack of standing; (3) Appellants’ case was not ripe for judicial review; (4) a demurrer based on the fact that Insurers had no legal duty to explain New Jersey law to the policyholders; (5) a demurrer based on Insurers’ statutory immunity; (6) a motion to strike for failure to join a cause of action and (7) a motion to strike for failure to join necessary parties. Appellants filed an amended class action complaint on December 22, 1994 and Insurers refiled their preliminary objections to the amended complaint. After oral argument and submission of briefs, the trial court sustained two of Insurers’ preliminary objections and dismissed Appellants’ complaint in an order dated August 11, 1995. The trial court found that Appellants lacked standing and the case was not ripe for review. Secondly, the court granted a demurrer on the basis that Insurers had no legal duty to advise Appellants of the effects of the New Jersey statute. The trial court refused to reconsider its decision and filed a supplemental opinion in support of its order on September 25, 1995. This appeal followed. We will limit our review to the issues of standing, ripeness, and Insurers’ lack of duty to warn Appellants of the effect of the New Jersey Deemer statute.

We begin with the issue of whether Appellants had standing to bring a class action suit against Insurers. Before a party may seek judicial relief he must have standing to maintain the action. Beers v. Commonwealth, Unemployment Compensation Board of Review, 534 Pa. 605, 609-12, 633 A.2d 1158, 1160-61 (1993).

The law of standing provides that one cannot invoke the jurisdiction of the court to enforce private rights or to maintain a civil action for the enforcement of such rights, unless he or she has, in an individual or representative capacity, some real interest in the cause of action, or a legal right, title or interest in the subject matter or controversy.

Jackson v. Garland, 424 Pa.Super. 378, 383, 622 A.2d 969, 971 (1993). A person who is not adversely affected in any way by the matter he seeks to challenge is not an “aggrieved party” and has no standing to obtain judicial relief. D’Amelio v. Blue Cross of Lehigh Valley, 414 Pa.Super. 310, 314, 606 A.2d 1215, 1217 (1992). To qualify as an “aggrieved party” the person must “(a) have a substantial interest in the subject-matter of the litigation; (b) the interest must be direct; and (c) the interest must be immediate and not a remote consequence.” Beers, 633 A.2d at 1161 (quoting South Whitehall Township Police Service v. South Whitehall Township, 521 Pa. 82, 86, 555 A.2d 793, 795 (1989)). “[T]o justify judicial intervention, a party must allege a recognizable, adverse effect to himself and a close causal nexus between the injury and the challenged conduct.” American Booksellers Association, Inc. v. Rendell, 332 Pa.Super. 537, 554, 481 A.2d 919, 927 (1984) (footnote omitted). To prove a substantial interest the party must demonstrate a discernible adverse effect to his interests which surpasses the common interest of all citizens in procuring obedience to the law. William, Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 192, 346 A.2d 269, 282 (1975). To be “immediate” there must be a causal connection between the conduct complained of and the aggrieved person’s injury. In re Interest of Garthwaite, 422 Pa.Super. 280, 281-85, 619 A.2d 356, 357-58 (1993).

Applying the above cited standards, the trial court found that Appellants were not aggrieved parties and thus lacked standing. The trial court explained:

The Treski and Schneider plaintiffs have not actually been affected by any alleged difference in their insurance coverage, as they have not been involved in any car accidents in New Jersey. As for the Tracy plaintiffs, that case has not yet been resolved. Moreover, if [Mrs. Tracy’s] injuries meet New Jersey’s “verbal threshold,” the “deemer” statute will not limit her recovery. Thus, none of the plaintiffs are “aggrieved parties.”

Trial Court Opinion, 8/11/95, at p. 7.

Appellants claim that it is unnecessary for them to have been denied full tort recovery in New Jersey as a prerequisite to establish their standing. They claim that they sought damages for Insurers’ alleged misrepresentations and omissions of material fact regarding their full tort recovery in New Jersey. According to Appellants, their substantial, direct and immediate injury was their inability to seek insurance coverage from insurance companies which are not affected by the New Jersey Deemer statute (Pennsylvania insurance companies which only issue insurance policies in Pennsylvania, not in New Jersey).

Insurers, on the other hand, agree with the trial court that Appellants are not aggrieved persons since none of them have been adversely affected by the Deemer statute by having a New Jersey court deny them full tort recovery. Insurers recognize that even if Appellants had been injured in an automobile accident in New Jersey, they would not be denied damages for non-economic injury unless their injuries fell below the New Jersey verbal threshold.

We agree with the trial court and Insurers that Appellants are not aggrieved parties and thus lack standing. We find our Supreme Court’s decision in Nye v. Erie Insurance Exchange, 504 Pa. 3, 470 A.2d 98 (1983), instructive. In that case, C. William Nye filed a class action suit against his insurance company, Erie Insurance, as well as thirty other insurance companies. Nye alleged that the defendant class refused to pay work loss benefits to the estates of deceased victims. The defendant insurance companies filed preliminary objections challenging Nye’s standing. The trial court ruled that Nye lacked standing to sue the thirty insurance companies since none of the defendant companies, except Erie, had denied him work loss benefits. Our Supreme Court upheld the trial court’s dismissal of the class action against the thirty insurance companies since Nye was not aggrieved by any conduct of the insurance companies, except Erie. Id. at 100.

Similarly, in D’Amelio v. Blue Cross of Lehigh Valley, supra, this Court upheld the dismissal of a class action suit against a proposed class of defendant hospitals. D’Amelio alleged in his class action complaint that he was denied medical coverage provided by St. Luke’s hospital when Blue Cross of Lehigh Valley overruled St. Luke’s decision that his medical treatment was “medically necessary.” D’Amelio claimed that Blue Cross breached its subscription agreement by denying payment of the medical services provided by doctors at St. Luke’s. This Court agreed that D’Amelio had standing to represent all persons who were aggrieved by similar rulings of Blue Cross of Lehigh Valley with respect to medical treatment rendered by St. Luke’s. D’Amelio, however, did not have standing to represent persons who were denied medical coverage for services rendered in different hospitals. “None of the other hospitals sought to be joined engaged in conduct which contributed to the injury he suffered from the controversy between St. Luke’s and Blue Cross of Lehigh Valley.” D’Amelio, 606 A.2d at 1217. Since DAmelio was not aggrieved by any conduct of the other members of the proposed defendant class, he lacked standing to bring a class action complaint. Id.

Like the representative plaintiffs in Nye and DAmelio, Appellants, in the present case, were not adversely affected or aggrieved by any conduct of the Appellee insurance companies except possibly the insurance company that issued their policy. Thus, based on the rationale of Nye and DAmelio, Appellants cannot maintain a class action against the named insurance companies.

Appellants also lack standing to sue their own respective insurer in their individual capacities since the only injury they allege is a future contingent harm. Appellants seek to hold Insurers liable for failing to advise them that their election of full tort might not be honored by a New Jersey court sometime in the future. Appellants did not allege that their full tort recovery was already denied by a New Jersey court based on the Deemer statute. Appellants have suffered no harm as of yet since no claim for full tort recovery has been made in New Jersey. Appellants suggest that they did not get the benefit of paying higher premiums for the full tort alternative and that their injury was the increased premiums they paid for full tort recovery. Appellants hypothesize that they would not have purchased full tort insurance if they had been advised that their choice might not be honored in New Jersey. We disagree that Appellants did not get what they bargained for — as of yet Appellants have not been denied full tort recovery in any court. Appellants allege a potential harm — their inability to recover for non-economic losses in New Jersey. Until this contingency occurs, Appellants are not aggrieved parties and thus lack standing.

A recent case decided by the Superior Court of New Jersey, Appellate Division, Whitaker v. Devilla, 287 N.J.Super. 370, 671 A.2d 163 (1996), refutes the possibility that Appellants will suffer future harm by a New Jersey court denying them full tort coverage. In that case the plaintiff was injured when the defendant hit him in a car accident in New Jersey. The plaintiff was a resident of Pennsylvania and was insured by a Pennsylvania policy issued by Prudential Property and Casualty Insurance Company, which is licensed to operate in New Jersey. The plaintiff had elected the full tort option under the Pennsylvania MVFRL and paid a higher premium for such coverage. The trial court granted the defendant’s motion for summary judgment on the basis that the plaintiffs claim was barred by the New Jersey Deemer statute in that the plaintiff did not meet the verbal threshold. The Superior Court reversed finding that the plaintiffs claim was not barred by the Deemer statute since he selected a comparable “no threshold” coverage in Pennsylvania. 287 N.J.Super. at 373-74, 671 A.2d at 165. The Court explained its rationale:

Applying the “verbal threshold,” however, to non-residents, such as the plaintiff, who specifically elect and pay for the broader coverage through a New Jersey company, does not advance the Legislature’s, or the Governor’s, intent of containing costs of automobile insurance by allowing recovery for “non-economic” damages only to those who pay for “no threshold” access to the courts. There is no basis shown in the present case to distinguish between a New Jersey resident who pays a New Jersey insurance company for “no threshold” coverage and an out-of-state resident who opts for substantially the same coverage with the same insurance company.
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We conclude that the language employed by the Legislature in the Deemer provision, N.J.S.A. 17:28-1.4, was inadvertently overbroad and was not intended to restrict the rights of persons such as the present plaintiffs. We reverse and remand.

287 N.J.Super. at 374, 671 A.2d at 165 (citations omitted).

Based on this recent decision, it appears that the New Jersey court will not interpret the Deemer statute to deny Appellants the benefit of full tort recovery. Thus, with the current state of the New Jersey law, Appellants cannot prove that they are or will be “aggrieved” in the future.

The trial court also found that Appellants’ case was not ripe for judicial review. The ripeness doctrine is another prerequisite for a court to exercise judicial review and examine the merits of a case. To be ripe, an actual case or controversy must exist at every stage of the judicial process. Richards v. Trimbur, 374 Pa.Super. 352, 358-60, 543 A.2d 116, 119 (1988), alloc. den., 522 Pa. 620, 563 A.2d 888 (1989). The rationale for the ripeness doctrine is to prevent premature adjudications. Rouse & Associates-Ship Road Land Limited Partnership v. Pennsylvania Environmental Quality Board, 164 Pa.Commw. 326, 331-33, 642 A.2d 642, 645 (1994). The court must consider whether the issues are adequately developed for judicial review and what hardship the parties will suffer if review is delayed. Id.

The trial court concluded that Appellants’ case was not ripe since none of Appellants were denied full tort recovery by application of the New Jersey Deemer statute. In fact, two of the three named Appellants had not been involved in an accident in New Jersey or brought suit in New Jersey to recover for non-economic damages. The trial court’s conclusion that Appellants’ case did not present an actual case or controversy was correct. Until Appellants suffer an injury caused by Insurers’ alleged misrepresentations, there is no present case or controversy and their case must be dismissed. Richards, 543 A.2d at 119.

The trial court also sustained Insurers’ preliminary objections in the nature of a demurrer based on the fact that Insurers had no legal duty to advise Appellants that their full tort recovery might be limited by the operation of the New Jersey Deemer statute. Our Supreme Court explained our standard of review when reviewing the trial court’s grant of a demurrer:

Preliminary objections, the end result of which would be dismissal of a cause of action, should be sustained only in cases that are clear and free from doubt. Baker v. Brennan, 419 Pa. 222, 225, 213 A.2d 362, 364 (1965). The test on preliminary objections is whether it is clear and free from doubt from all of the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish his right to relief. Firing v. Kephart, 466 Pa. 560, 563, 353 A.2d 833, 835 (1976). To determine whether preliminary objections have been properly sustained, this Court must consider as true all of the well-pleaded material facts set forth in appellant’s complaint and all reasonable inferences that may be drawn from those facts. Feingold v. Bell of Pennsylvania, mi Pa. 1, 4, 383 A.2d 791, 792 (1977); Pennsylvania Liquor Control Board v. Rapistan, Inc., 472 Pa. 36, 42, 371 A.2d 178, 181 (1976).

Bower v. Bower, 531 Pa. 54, 57, 611 A.2d 181, 182 (1992).

We agree with the trial court that Insurers had no duty to advise Appellants of the effect of the Deemer statute on their potential, future recovery for non-economic damages in a New Jersey civil proceeding. The MVFRL mandates that Insurers must provide the notice set forth in section 1791.1(b). That section reads:

In addition to the invoice required under subsection (a) [relating to disclosure of premiums for minimum coverage], an insurer must, at the time of application for original coverage for private passenger motor vehicle insurance and every renewal thereafter, provide to an insured the following notice of the availability of two alternatives of full tort insurance and limited tort insurance described in section 1705(c) and (d) (relating to election of tort options)!.]

75 Pa.C.S.A. § 1791.1(b) (Emphasis added). Insurers strictly complied with this statute by giving Appellants a verbatim copy of the notice.

The trial court concluded that Insurers are not obligated by the laws of this Commonwealth to “counsel insureds as to the effects of the laws of other states on their insurance policy.” Trial Court Opinion, 8/11/95, at p. 9. We agree and rely on prior cases in this Court where we rejected arguments similar to Appellants that an insurer has a duty to provide more comprehensive notice and explanation of the benefits provided in the insured’s policy. For example, in Kilmore v. Erie Insurance Company, 407 Pa.Super. 245, 595 A.2d 623 (1991), alloc. den., 529 Pa. 664, 604 A.2d 1030 (1992), this Court was faced with the issue of whether an automobile insurance carrier and health care provider had a duty to explain the extent and limits of its coverage to the insured. Id. at 625. The appellant filed a class action complaint against Erie Insurance and Blue Shield alleging fraud, breach of contract and consumer protection violations. The appellant claimed that Erie and Blue Shield failed to explain the terms and exclusions in his policy. Erie and Blue Shield filed a demurrer and motion for summary judgment requesting the court to dismiss the complaint. The trial court granted summary judgment in favor of defendants and this Court affirmed on the basis that the insurers had no duty to provide such an explanation. We explained:

We find no justification in the law to impose the additional burden on insurers that they anticipate and then counsel their insured on the hypothetical, collateral consequences of the coverage chosen by the insured. The basic contractual nature of insurance coverage set forth in [Standard Venetian Blind Company v. American Empire Insurance Company, 503 Pa. 300, 469 A.2d 563 (1983) ] and [Dercoli v. Pennsylvania National Mutual Insurance Company, 520 Pa. 471, 554 A.2d 906 (1989) ], requires fair dealing and good faith on the part of the insurer, not hand holding and. substituted judgment. While we acknowledge insurance is an area in which the contracting parties stand in somewhat special relationship to each other, the relationship is not so unique as to compel this Court to require an insurer to explain every permutation possible from an insured’s choice of coverage. Each insured has the right and obligation to question his insurer at the time the insurance contract is entered into as to the type of coverage desired and the ramifications arising therefrom. Once the insurance contract takes effect, however, the insured must take responsibility for his policy. We, therefore, decline to extend the duties of an insurer to provide ongoing advice concerning the limits of its coverage.

Kilmore, 595 A.2d at 626-27 (footnote omitted). See also Banker v. Valley Forge Insurance Company, 363 Pa.Super. 456, 465, 526 A.2d 434, 438 (1987), rev’d. on other grounds, Banker v. Valley Forge Insurance Company, 401 Pa.Super. 367, 585 A.2d 504 (1991) (where the insurance policy provision is clear and unambiguous, the insurer does not have a duty to explain all of the hypothetical consequences which might result from an excess coverage endorsement).

We also find the rationale of the United States District Court persuasive in Zampirri v. Hartford Insurance Company, 1993 WL 516415 (E.D.Pa.1993). In that case Anthony Zampirri, a Pennsylvania resident insured by Hartford Insurance Company of the Midwest (Hartford), was involved in an automobile accident in New Jersey with Joseph Watkins. Watkins was driving a car insured by Prudential Insurance Company (Prudential). The plaintiff filed a claim against Prudential for his injuries and Prudential denied the claim on the basis of the New Jersey Deemer statute. Prudential claimed that the plaintiff did not sustain serious injury and thus did not meet the verbal threshold required to recover for non-economic damages. The plaintiff then filed a claim against his own insurer, Hartford, seeking uninsured/underinsured benefits. Hartford denied the claim on the grounds that Watkin’s policy was not exhausted. The plaintiff then filed a class action lawsuit in federal court against Hartford and any other insurance companies who were authorized to provide motor vehicle insurance in Pennsylvania and in New Jersey. “The plaintiff [claimed] that Hartford’s application of the New Jersey Deemer Statute [had] essentially eliminated his ability to seek underinsured and/or uninsured benefits.” 1993 WL 516415 at *1. The plaintiff claimed that Hartford acted in bad faith pursuant to 42 Pa.C.S.A. section 8371 by failing to inform him that New Jersey’s Deemer statute could affect his tort recovery. The plaintiff argued that Hartford had a duty to conspicuously warn him that interstate travel in New Jersey might preclude him from obtaining uninsured/underinsured coverage under the Pennsylvania MVFRL. The court rejected the plaintiffs efforts of imposing a higher duty on Hartford and explained:

I do not agree with this theory. The defendant had no duty to the plaintiff to explain every contingency that could affect his coverage outside of the state of Pennsylvania. The Hartford explained the limits of the coverage provided by the underinsured motorist policy.
* # * * *
The Hartford’s alleged failure to explain to the plaintiff the effect of New Jersey’s statutes was not in bad faith. The relevant statutes are public information, and if the plaintiff was concerned about the effect of driving in a specific state outside of Pennsylvania, he could have examined the law.

1993 WL 516415 at *3.

We find the reasoning of Kilmore, Banker and Zampirri persuasive. Insurers could not have reasonably explained every contingency that could affect Appellants’ ability to recover full tort. Insurers could not research the laws of all fifty states and foreign territories to explain how they interact with the Pennsylvania MVFRL and affect Appellants’ ability to recover for non-economic damages. Insurers could not explain every hypothetical collateral consequence which might arise if Appellants select full tort alternative. Kilmore, 595 A.2d at 626. Insurers complied with the statutory notice and did not intentionally conceal information as Appellants contend. Insurers did not act in bad faith and did not make any assertions regarding the extent of recovery in another state outside of Pennsylvania. The notice specifically notified Appellants that under the laws of this Commonwealth they would have the unrestricted right to seek damages for non-economic injuries. Under these circumstances, we affirm the trial court’s demurrer on the basis that Insurers had no duty to inform Appellants of the effect of the New Jersey Deemer statute.

Order affirmed.

      . Alan and Amy Treski purchased their insurance from Kemper National Insurance Company, doing business as American Motorists Insurance Company. Joseph and Patricia Tracy purchased their automobile insurance policy from CNA Insurance doing business as Continental Casualty Co. and William and Josephine Schneider obtained a policy from General Accident Company of America.

      . Section 1791.1 sets forth the statutory notice and requires insurers to disclose premium charges and tort options. It was effective February 7, 1990 and applied to all policies issued or renewed on and after July 1,1990. 75 Pa.C.S.A. § 1791.1, Historical and Statutory Notes.

      . N.J.S.A. 17:28-1.4 provides:
      Any insurer authorized to transact or transacting automobile or motor vehicle insurance business in this State, or controlling or controlled by, or under common control by, or with, an insurer authorized to transact or transacting insurance business in this State, which sells a policy providing automobile or motor vehicle liability insurance coverage, or any similar coverage, in any other state or in any province of Canada, shall include in each policy coverage to satisfy at least the liability insurance requirements of section 1 of P.C. 1972, c. 197 (C. 39:6B-1) or section 3 of P.C. 1972, c. 70 (C. 39-6A-3), the uninsured motorist insurance requirements of subsection a. of section 2 of P.L. 1972, c. 70 (C. 39:6A-4) or of section 19 of P.L. 1983, c. 362 (C. 17:28-1.3), whenever the automobile or motor vehicle insured under the policy is used or operated in this State.
      Any liability insurance policy subject to this section shall be construed as providing the coverage required herein, and any named insured, any immediate family member as defined in section 14.1 of P.L.1983, c. 362 (C. 39:6A-8.1), under that policy, shall be subject to the [verbal threshold] option specified in subsection a. of section 8 of P.L. 1972, c. 70 (C 39:6A-8).

      . In their amended complaint Appellants aver that Appellant Patricia Tracy was injured in an automobile accident while driving in New Jersey and that her tort claim is pending in a New Jersey civil action. Appellants did not aver that the other named Appellants were involved in automobile accidents in New Jersey. In their petition for reconsideration Appellants informed the trial court that all of the named Appellants were injured in an automobile accident occurring in New Jersey. When ruling on a demurrer, the trial court must accept as true all well-pleaded facts in the complaint and amended complaint. Since these facts were not in the amended complaint, the trial court was not obligated to consider them.

      . That statute provides:
      In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions:
      (1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3%.
      (2) Award punitive damages against the insurer.
      (3) Assess court costs and attorneys’ fees against the insurer.
      42 Pa.C.S.A. § 8371.

      . We reject Appellants' contention that Insurers intentionally concealed material facts concerning the full tort election. Appellants essentially claim that Insurers were liable under Section 550 of the Restatement (Second) of Torts, which imposes liability on a party who “intentionally prevents [another party] from acquiring material information” or intentionally conceals material information. Sevin v. Kelshaw, 417 Pa.Super. 1, 8-9, 611 A.2d 1232, 1236 (1992). To be liable under this section, the defendant must intentionally conceal material information in an effort to deceive the plaintiff. Id. “Mere silence in the absence of a duty to speak, however, cannot suffice to prove fraudulent concealment.” Id. Once again, Appellants' claim fails since it rests on their theory, which we rejected supra, that Insurers had a duty to inform them of the New Jersey Deemer statute.


author: POPOVICH, Judge:

text:
    674 A.2d 1116
    COMMONWEALTH of Pennsylvania, Appellee, v. James Walter DUXBURY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 10, 1996.
    Filed April 12, 1996.

      John Molnar, Wind Gap, for appellant.
    Alan M. Rubenstein, District Attorney, Doylestown, for the Commonwealth, appellee.
    Before KELLY, POPOVICH and MONTEMURO , JJ.

       Retired Justice assigned to the Superior Court.

   POPOVICH, Judge:

The appellant, James Walter Duxbury, appeals the judgment of sentence for violating 18 Pa.C.S.A. § 6302 (Sale of Weapons to Minors). We affirm.

The facts, viewed in a light most favorable to the verdict-winner and drawing all reasonable inferences therefrom, disclose that thirteen-year-old Andrew Pilotti purchased a “penknife” from the appellant for four dollars at his display stand at a flea market in Solebury Township, Bucks County. Once the minor had shown the purchase to his mother, she phoned the police who questioned the child and learned that the “penknife” had been sold without requesting the age or identification of the purchaser.

The minor accompanied the police to the location of the sale, and the appellant was identified as the seller of the “penknife,” which had been determined by the District Attorney to be a prohibitive offense weapon. The appellant was arrested and charged with violating 18 Pa.C.S.A. § 908 (Prohibited Offensive Weapon) and Section 6302. A jury, after the presentment of the evidence, found the appellant not guilty of Section 908, but guilty of Section 6302. Sentence was imposed and this appeal followed raising two issues for our review:

A. WHETHER THE JURY’S VERDICT FINDING APPELLANT GUILTY OF SELLING A WEAPON TO MINORS AND NOT GUILTY OF PROHIBITED OFFENSE WEAPONS WAS INCONSISTENT?
B. WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT THE KNIFE CONCEALED AS A PEN WAS A DEADLY WEAPON UNDER 18 Pa.C.S.A. § 6302?

Reviewing the merits of the last issue first, we note that Section 6302 labels as a first degree misdemeanor the sale of any “deadly weapon” to a person under eighteen years of age.

There is no disputing the fact that the appellant sold the “pen-knife” to Andrew Pilotti, who was under the age of eighteen at the time of the sale. The only issue which remains is whether the “pen-knife” sold in the present case is to be considered a “deadly weapon,” which is defined by the Crimes Codes as:

Any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or serious bodily injury, or any other device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury.

18 Pa.C.S.A. § 2301. Here, since the “pen knife” was not “used” by the minor to produce death or serious bodily injury, our inquiry is whether the “intended use” of the instrumentality “is calculated or likely to produce death or serious bodily injury.”

Obviously, without undue elaboration, that portion of the instrument that served as a “pen” had an “intended or calculated use” of being a writing implement. Thus, if its “intended or calculated use” were followed — writing, neither death nor serious bodily injury would follow to render it a deadly weapon.

On the other hand, that portion of the instrumentality that constituted a “knife” is not as easily dismissed as an innocuous item because juxtaposed with the “pen” section making-up the single unit concealing a three-inch blade under a sheath to camouflage its dual purpose. As this Court has observed in concluding that an instrument shaped like a pen, which when the clip was pressed ejected a six-inch steel blade and locked it into place (“a guard father”) was an “offensive weapon” under 18 Pa.C.S.A. § 908(a), notwithstanding its having a common lawful purpose such as a “center punch and as a metal scriber.” In doing so, we wrote:

“While some conceivable lawful use could be found for almost every object otherwise proscribed by Section 908, the statute does not prohibit only items with no conceivable lawful purpose, but, more broadly, items with no common lawful purpose.” Commonwealth v. Fisher, supra, [485 Pa. 8] 400 A.2d [1284 at] 1288 [ (1979) ] (Emphasis in original). Furthermore, our Supreme Court, in Commonwealth v. Fisher, supra, held that on a charge of violating Section 908(c), a circumstance-of-the-possession test was inappropriate in determining whether the instrument served a common lawful purpose. 400 A.2d [at] 1288. See also Commonwealth v. Artis, 275 Pa.Super. 127, 418 A.2d 644 (1980); Commonwealth v. Ashford, 263 Pa.Super. 100, 397 A.2d 420 (1979) (plurality). The question therefore is not whether appellant has proffered a plausible lawful use for the object, or whether the circumstances of the possession negated an intent to use the instrument unlawfully, but whether the guard father has common lawful purpose within the community.
At trial, appellant testified on his own behalf. He stated that he used this particular instrument in his capacity as a machinist. He testified further that he used the implement as a center punch and as a metal scriber....
‡ ‡ ‡ ‡ ‡ ‡
As its rebuttal witness, the Commonwealth called Trooper Leon E. Krebs, who had ... extensive experience with metal scribes and center punches. * * * Trooper Krebs further testified that he had never seen a spring loaded scribe and he had never seen a scribe with as much play as the guard father had. Additionally, he testified that he had never seen a center punch with a six-inch shaft and he had never seen a center punch activated with a clip. Finally, Trooper Krebs explained the impracticality of using a guard father as either a center punch or a metal scribe.

Commonwealth v. Hitchon, 379 Pa.Super. 136, 549 A.2d 943, 947 (1988) (Citations omitted).

Here, as in Hitchon, although some legitimate purpose was proffered in using the knife-portion of the instrument, i.e., opening the mail, this is not dispositive of the case. On the contrary, the minor’s mother (Nona Pilotti) testified that in her experience as a nurse in the “critical care emergency room,” the “pen-knife” was “not ... something appropriate” for her son. She had seen the damage a knife may inflict. Also, this same witness described the knife as “definitely pointed more than any knife that ... [she] ha[s] in [her] home. * * * Very definitely this [wa]s a piercing tip. * * * [S]he would have no particular need for that type of knife.” N.T. 35; Hitchon, supra (Testimony of police and defendant permissible in determining whether six-inch pen shaped knife, with automatic ejection, had common lawful purpose within community).

In addition, Solebury Township police officers Mark Chaiken and John Kinderdine testified that the knife in question had “about [a] three inch[ ]” blade, a “quite sharp” tip and a blade that was sharp on one side of the knife. Also, in their opinion, such a “pen-knife” “could be used in a manner ... which ... could produce death or serious bodily injury.” N.T. 50 & 69.

Viewing the evidence in a light most favorable to the verdict-winner, with all reasonable inferences arising therefrom, the evidence is sufficient to support a finding that the “pen-knife” sold by the appellant to a minor here could be used to inflict serious bodily injury or death, a question reserved properly for the jury’s determination. See State v. Cobb, 22 Wash.App. 221, 589 P.2d 297 (1978) (Whether blade of less than three inches was deadly weapon was a question of fact and not of law); State v. Cox, 11 N.C.App. 377, 181 S.E.2d 205 (1971) (Whether blade three inches long constituted a deadly weapon per se was for the jury to decide); Williams v. Commonwealth, 304 Ky. 359, 200 S.W.2d 926 (1947); cf. Montgomery v. Commonwealth, 346 S.W.2d 479 (Ky.1961) (“Small knife” used in robbery was a deadly weapon). Accord Mason v. Commonwealth, 396 S.W.2d 797 (Ky.1965) (Pocket knife with three-inch blade a deadly weapon as a matter of law in prosecution for armed robbery); 100 A.L.R.2d 287 (Knife as Deadly or Dangerous Weapon). Therefore, we disagree with the claim of court error.

Judgment of sentence affirmed.

      . The appellant was sentenced to twenty-three months of non-reporting probation.

      . "Pen-knife” is an item which, on its surface, appears to be a “pen” that may be used as a writing instrument. However, when the “pen” is pulled apart at its center, a three-inch blade extends from and is attached to the opposite end of where the “pen” is located.

      . Albeit the “pen” has positive attributes and may be mightier than the sword, in this scenario the sale of the latter as part and parcel with the former is proscribed when sold to a minor.

      . This determination, of necessity, undermines the appellant’s claim that the jury finding him not guilty of violating Section 908, but guilty of Section 6302, constituted an inconsistent verdict that may not stand. We disagree.
      Consistency in a juty’s verdict is unnecessary provided, of course, there is sufficient evidence to support the conviction(s) the juiy has returned. Commonwealth v. Purcell, 403 Pa.Super. 342, 589 A.2d 217 (1991). The record is sufficient to substantiate the verdict. For instance, under the prohibited offensive weapons statute the jury must decide whether the knife had a common lawful purpose. However, a violation of Section 6302 requires the jury to determine only whether a sale of weapons to a minor occurred and the item sold is a deadly weapon. At bar, the facts are that the appellant sold a three-inch-bladed knife (concealed in the form of a pen). There is no doubt that such an instrument is capable of producing death or serious bodily injury. The jury could reasonably draw this conclusion from the testimony of the prosecutions' witnesses.
      The appellant's reliance upon Commonwealth v. Blake, 413 Pa.Super. 416, 605 A.2d 427 (1992) is misplaced. There, unlike at bar, no “description of the size and shape of the [pocket] knife or blade" was given to enable the court to determine whether it was a deadly weapon. This, in addition to the fact that the weapon was not wielded by the appellant but injured the victim while still in his pocket, prompted a vacation of the judgment of sentence and a remand for resentencing without the deadly weapon enhancement statute (42 Pa.C.S.A. § 9721) being used to determine sentence.
      We find no similarity with Blake sufficient to justify a like result here. Accordingly, we affirm the judgment of sentence.


author: OLSZEWSKI, Judge: POPOVICH, Judge,

text:
    674 A.2d 1119
    COMMONWEALTH of Pennsylvania v. Victor D. THOMAS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 10, 1995.
    Filed April 16, 1996.

      Terry W. Despoy, Altoona, for appellant.
    Elizabeth A. Doyle, Assistant District Attorney, Hollidaysburg, for Commonwealth, appellee.
    Before CIRILLO, POPOVICH and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

This appeal is from a judgment of sentence entered in the Court of Common Pleas of Blair County on May 25,1995. We vacate the judgment of sentence and discharge appellant.

On December 17, 1994, appellant Victor D. Thomas was charged, by complaint, with Indirect Criminal Contempt for violation of a Protection from Abuse Order dated September 28, 1994. The order prohibited appellant from having any contact with Angel M. Stroh, including harassment of her relatives. On February 3, 1995, appellant was found guilty of the contempt charge. Appellant then filed post-verdict motions on February 13, 1995 which were denied by the lower court on April 27, 1995. Further, appellant filed a motion to dismiss on May 23, 1995 pursuant to Pa.R.Crim.P. 1405(A)(1). Consequently, the trial court summarily denied this motion and sentenced appellant to six months probation on May 25, 1995. This timely appeal follows.

On appeal, appellant claims that the trial court erred in failing to dismiss the instant case because: (1) the criminal complaint was not specific enough to advise appellant of the nature of the offense charged in violation of Pa.R.Crim.P. 104 and (2) appellant was not sentenced within 60 days of his conviction pursuant to Pa.R.Crim.P. 1405(A)(1). While we disagree with appellant regarding his first contention, we are constrained to find merit in his second claim and vacate his judgment of sentence.

We initially note that we are proceeding without the benefit of a trial court opinion. Despite the requirement of Pa.R.A.P. 1925(a) for trial judges to file opinions setting forth the reasons for their orders, the trial judge, in the instant case, indicated to this Court that he would “not file an opinion in this matter for the reason that [he] is fully satisfied that the record speaks for itself and clearly demonstrates that the instant appeal is without merit.” We are surprised that the trial judge failed to follow our Rules of Appellate Procedure, as this Rule enables us to conduct effective and meaningful review of lower court decisions. The cooperation, by our brethren in the lower courts, provides the oil which keeps the wheels of the appellate process turning. Without such cooperation, those wheels could come to a screeching halt.

Appellant’s first claim, that the complaint was inadequate under Rule 104 of our Rules of Criminal Procedure, is without merit. According to this rule, a criminal complaint must include

a summary of the facts sufficient to advise the defendant of the nature of the offense charged, but neither the evidence nor the statute allegedly violated need be cited in the complaint. However, a citation of the statute allegedly violated, by itself, shall not be sufficient for compliance with this subsection.

Pa.R.Crim.P. 104(6)(a). Although the complaint “need not set forth the facts relating to an offense with the particularity of an indictment[,] ... a minimum amount of detail is required.” Commonwealth v. Smouse, 406 Pa.Super. 369, 373, 594 A.2d 666, 668 (1991) (citations omitted). Our main inquiry is whether a defendant was sufficiently informed of the nature of the offense charged and that he might be placed on trial for such crime. Commonwealth v. Taraschi, 327 Pa.Super. 179, 191—94, 475 A.2d 744, 751 (1984). See also Commonwealth v. Wilkinson, 278 Pa.Super. 490, 497-99, 420 A.2d 647, 651 (1980); Commonwealth v. Grego, 116 Pa.Super. 295, 296-97, 176 A. 550, 551 (1935).

In the instant case, appellant alleges that the complaint failed to set forth the facts relating to the charged offense in sufficient detail. We disagree. Here, the complaint stated:

The acts committed by the defendant were: INDIRECT CRIMINAL CONTEMPT for VIOLATION of PROTECTIVE ORDER NO. 897 C.P. 1994 ... [which prohibited defendant] from abusing/harassing Petitioner/Petitioner’s Relatives ... and [from] com[ing] to the residence of Petitioner. The defendant did on 12/17/94 at 3000 6th Ave. Altoona come to Kings Restaurant at approximately 0345 hours and was harassing Petitioner’s relative Brian Stroh, which is in violation of the Protective Order issued by HONORABLE JUDGE THOMAS G. PEOPLES, JR.. The fact that the defendant did harass Petitioner’s Relative (brother), Brian Stroh, the defendant is in violation of the order, and therefore is in INDIRECT CRIMINAL CONTEMPT. The petitioner of said order is Angel M. Stroh.

Criminal Complaint, 12/20/94. Thus, the instant complaint informed appellant that he was charged with the crime of indirect contempt for allegedly violating a protective order against Angel Stroh and her relatives. Further, the complaint set forth: the date on which appellant allegedly violated the order, December 17, 1994; the location where he allegedly violated the order, Kings Restaurant in Altoona; and how he allegedly violated the order, by harassing appellant’s brother. Hence, appellant’s first claim fails as the complaint sufficiently informed appellant of the nature of the offense charged and that he might be placed on trial for such crime. Pa.R.Crim.P. 104. See Smouse, supra (holding a complaint charging criminal homicide sufficient under Pa.R.Crim.P. 132 where it stated that defendant intentionally, knowingly, recklessly or negligently caused the death of victim by beating him about the head and neck on September 10, 1989 in Pittsburgh, but did not identify the precise situs, exact time or facts supporting a conclusion that defendant committed the crime in the manner alleged).

Appellant’s second contention, that the trial court erred in sentencing him in excess of sixty days of conviction, however, possesses merit. Accordingly, Rule 1405(A) of our Rules of Criminal Procedure states:

A. Time For Sentencing
(1) Except as provided by Rule 1403.B [where the Court orders psychiatric or psychological examinations of a defendant after adjudication of guilt, but prior to sentencing], sentence in a court case shall ordinarily be imposed within 60 days of conviction or the entry of a plea of guilty or nolo contendere.
(2) When the date for sentencing in a court case must be delayed, for good cause shown, beyond the time limits set forth in this rule, the judge shall include in the record the specific time period for the extension.

Pa.R.Grim.P. 1405(A)(1), (2). Instantly, appellant was sentenced on May 25, 1995, some 111 days after his conviction on February 3, 1995. Therefore, the trial court clearly violated Rule 1405(A)(1).

Nevertheless, the Commonwealth argues that the trial court, under Rule 1405(A)(2), may delay sentencing for “good cause shown.” Therefore, it asserts that the trial court did not sentence appellant on the conviction date because it granted time to appellant to file post-verdict motions, ie. “good cause” to delay sentencing. It would logically follow that, the time used to decide appellant’s post-verdict motions, from February 13, 1995 through April 27, 1995 (73 days), should be excluded from the Rule 1405 calculation. We disagree, however, that the allowance of filing or the decision of appellant’s post-verdict motions constituted “good cause” to delay sentencing.

While no other case has interpreted the new version of Rule 1405(A)(1) and (2), our reading of that Rule in conjunction with Rule 1410, leads us to conclude that the time to decide any post-verdict motions by a trial court should be included in Rule 1405 calculations. The comments to Rule 1405 indicate that the rule is “intended to promote prompt and fair sentencing procedures by providing reasonable time limits for those procedures.” Comments, Pa.R.Crim.P. 1405. Further,

[pjaragraph A(2) is not intended to sanction pro forma requests for continuances. Rather, it permits the judge to extend the time limit for sentencing under extraordinary circumstances only. Because such extensions are intended to be the exception rather than the rule, the extension must be for a specific' time period, and the judge must include in the record the length of the extension.

Id. (emphasis added). On the other hand, Rule 1410 abolishes the former post-verdict motion, and requires that such motions be placed in the form of post-sentence motions. Accordingly, the Rule prescribes time limits for a defendant to file and the court to decide such motions which are measured from the imposition of sentence, not the adjudication of guilt. Pa. R.Crim.P. 1410(A), (B). Thus, in the instant case, the trial court should not have delayed sentencing appellant to decide his post-verdict motions, since such motions did not have to be filed or decided until after sentencing. It follows that the filing and deciding of appellant’s post-verdict motions did not constitute “good cause” or “extraordinary circumstances” for the trial court to delay appellant’s sentencing and such time will be included in Rule 1405 calculations. Consequently, to effect the purpose of Rule 1405, we are constrained to vacate appellant’s sentence because the trial court erred when it sentenced appellant 111 days after his conviction without “good cause” for the delay. Pa.R.Crim.P. 1405(A)(1).

For the foregoing reasons, we vacate appellant’s judgment of sentence and discharge appellant from probation.

Judgment of sentence vacated. Appellant discharged.

POPOVICH, J., filed a dissenting opinion.

POPOVICH, Judge,

dissenting:

I respectfully dissent from the majority’s conclusion that a violation of Pa.R.Crim.P. 1405, requires this court to vacate appellant’s judgment of sentence and discharge him from his sentence of probation.

I agree that Pa.R.Crim.P. 1405(A)(1) provides that, “sentence in a court case shall ordinarily be imposed within 60 days of conviction or entry of a plea of guilty or nolo contendré.” I also agree that Pa.R.Crim.P. 1410 does away with the “post-trial” motion in favor of an optional “post-sentence” motion. Significantly, neither of those rules provides for any remedy, much less the ultimate remedy of discharge, when the sixty-day sentencing limit is violated, and I would not read such a requirement into the rule.

Indeed, if our supreme court intended the rule to require a defendant’s conviction to be discharged when the sixty-day sentencing time-limit of Pa.R.Crim.P. 1405 was violated, I believe the court would have so provided specifically in much the same way as the court did in the related speedy trial rule of Pa.R.Crim.P. 1100(g) (expressly provides that a defendant may move to dismiss the charges with prejudice when the rule is violated). Further, appellant’s right to be sentenced within sixty days of his conviction is clearly not a right of constitutional proportion warranting the ultimate sanction of discharge against the Commonwealth, unless the delay impacts upon appellant’s right to a speedy trial. See, Commonwealth v. Brockway, 429 Pa.Super. 609, 633 A.2d 188, appeal denied, 537 Pa. 616, 641 A.2d 582 (1994) (speedy trial rights were not violated when defendant was not sentenced until three years after his conviction where defendant failed to demonstrate any prejudice cause by the delay); Commonwealth v. Greer, 382 Pa.Super. 127, 554 A.2d 980 (1989) (speedy trial right encompasses sentencing process; delay of over seven years did not implicate right to speedy trial where defendant did not object to the delay). Presently, I fail to see how appellant could have been prejudiced in any manner by the delay of 111 days between conviction and sentencing, and appellant has not alleged any prejudice.

I can not agree with the majority’s determination that appellant’s own mistake of filing a post-trial motion instead of the proper post-sentence motion, see Pa.R.Crim.P. 1410, should serve as the basis for his discharge. I think the delay caused by the filing of this inappropriate motion should be charged to appellant and constitute “good cause shown” for sentencing appellant beyond the sixty-day limit. This would not be the first time our court has applied a Pa.R.Crim.P. 1100 analysis to an unrelated rule or “statute of limitation”. See, Commonwealth v. Quinn, 405 Pa.Super. 487, 592 A.2d 1316 (1991), appeal denied, 529 Pa. 619, 600 A.2d 535 (any period of delay directly attributable to the accused tolls the limitations period as provided for in 42 Pa.C.S.A. § 5553, which mandates that all proceedings in court of common pleas for summary motor vehicle offenses must be completed within two years of purported offense).

Finally, I do not believe the majority would be so quick to discharge this defendant if his crime was one of murder, rape or aggravated assault, rather than indirect criminal contempt. 42 Pa.C.S.A. § 4136. Accordingly, I would affirm the decision of the court below.

      . 23 Pa.C.S.A. § 6114.

      . We note that there are three types of contempt: civil, indirect criminal, and direct criminal. The distinction between civil contempt and indirect criminal contempt is subtle and often confusing. Our learned colleagues in the Commonwealth Court have summarized the differences between the types of contempt in the following manner:
      Contempt may be of a civil or criminal character. Criminal contempt may be either direct, if committed in the court's presence, or indirect, if the obstructive act is committed beyond the court’s presence. Brocker v. Brocker, 429 Pa. 513, 241 A.2d 336 (1968), cert. denied, 393 U.S. 1081, 89 S.Ct. 857, 21 L.Ed.2d 773 (1969). The distinguishing factor between civil contempt and indirect criminal contempt is the "dominant purpose” of the contempt proceeding. If the dominant purpose of the court is to punish the contemnor for past refusal to obey an order, the contempt is classified indirect criminal. If the dominant purpose of the court is to coerce the entity into obeying the court’s earlier order, the proceeding is civil. See In re Martorano, 464 Pa. 66, 346 A.2d 22 (1975).

        Richland Tp. v. Prodex, Inc., 166 Pa.Commw. 313, 318-19, 646 A.2d 652, 654 (1994). In the instant case, our review indicates that appellant was properly charged with and convicted of indirect criminal contempt as appellant refused to obey the existing protective order in conjunction with the lower court's apparent intent to punish him. Id.

      . Pa.R.Crim.P. 132 has since been renumbered as Rule 104 on August 9, 1994, effective January 1, 1995.


text:
    674 A.2d 1123
    Rosemary PEARCE and Thomas David Pearce, her Husband, Appellants, v. The SALVATION ARMY, a Corporation and Walter W. Crouch.
    Superior Court of Pennsylvania.
    Argued Feb. 29, 1996.
    Filed April 17, 1996.

      Robert A. Cohen, Pittsburgh, for appellants.
    Lee A. Rosengard, Philadelphia, for The Salvation Army, appellee.
    Joseph J. D’Alba, Erie, for Crouch, appellee.
    Before CIRILLO, President Judge Emeritus, and SAYLOR and EAKIN, JJ.
   CIRILLO, President Judge Emeritus:

Rosemary Pearce and her husband, Thomas David Pearce, appeal from an order of the Court of Common Pleas of Westmoreland County granting preliminary objections filed by appellees, the Salvation Army and Walter W. Crouch. We affirm.

Rosemary Pearce and Thomas David Pearce filed an action seeking damages for assault and battery as a result of a course of conduct which spanned a period of four years. The complaint alleged that during that time period, between June of 1969 and December of 1973, when Rosemary was between the ages of twelve and sixteen, she was sexually assaulted by Walter W. Crouch, then an agent of the Salvation Army. The action was initiated in January of 1995, over twenty-one years after the last event alleged.

The Salvation Army and Crouch filed preliminary objections raising the statute of limitations as an affirmative defense. The trial court granted the preliminary objections and appellants filed this appeal. One issue is presented for our review:

Was this action filed within the applicable two year statute of limitations, as extended by operation of the discovery rule?

An action raising assault and battery must be commenced within two years. See 42 Pa.C.S.A. § 5524. Pearce argues that her recollection of the traumatic assaults was repressed and that it was not until 1994 that her memory of the events was revived in therapy. Pearce maintains, therefore, that the discovery rule should apply to toll to the statute of limitations.

The discovery rule is a judicially created device which tolls the running of the applicable statute of limitations until that point when “the plaintiff knows or reasonably should know: (1) that he has been injured, and (2) that his injury has been caused by another party’s conduct.” Redenz by Redenz v. Rosenberg, 360 Pa.Super. 430, 434, 520 A.2d 883, 885, allocatur denied, 516 Pa. 365, 533 A.2d 93 (1987). The limitations period begins to run when the injured party “possesses sufficient critical facts to put him on notice that a wrong has been committed and that he need investigate to determine whether he is entitled to redress.” A. McD. v. Rosen, 423 Pa.Super. 304, 308, 621 A.2d 128, 130 (1993) (quoting Zeleznik v. United States, 770 F.2d 20, 23 (3d Cir.1985)).

Whether the statute has run on a claim is usually a question of law for the trial judge, but where the issue involves a factual determination, the determination is for the jury. Smith v. Bell Telephone Co. of Pennsylvania, 397 Pa. 134, 142, 153 A.2d 477, 481 (1959). Specifically, the point at which the complaining party should reasonably be aware that he has suffered an injury is generally an issue of fact to be determined by the jury; only where the facts are so clear that reasonable minds cannot differ may the commencement of the limitations period be determined as a matter of law. Sadtler v. Jackson-Cross Co., 402 Pa.Super. 492, 501, 587 A.2d 727, 732 (1991).

Hayward v. Medical Center of Beaver County, 530 Pa. 320, 325, 608 A.2d 1040, 1042-43 (1992).

The case of Seto v. Willits, 432 Pa.Super. 346, 638 A.2d 258, alloc. denied, 538 Pa. 648, 647 A.2d 902 (1994), is dispositive of the issue of whether the discovery rule is applicable in the context of a sexual abuse case where repression or other mental disability is alleged. In that case, Mary Anne Werner Seto filed a complaint against defendant, Lee O. Willits, asserting causes of action for assault and battery, false imprisonment, intentional infliction of emotional distress, and negligent infliction of emotional distress. These claims were based upon sexual assaults allegedly committed upon her by Willits during the summer of 1959. At that time of the alleged assaults, Seto was nine years old.

Seto argued that the discovery rule tolled the two year statute of limitations. Seto contended that, due to the assaults, her personality “split to the extent that she mentally blocked out the acts,” and that she “did not know or have reason to know of [Willits’] acts or any damage that [Willits] inflicted upon her, until January of 1992, when her personality splits first surfaced.” Id. at 348, 638 A.2d at 259.

In resolving this claim, a panel of this court held that the discovery rule did not toll the statute of limitations period for an action based upon sexual abuse of a minor, even though plaintiff alleged that she had repressed the memory of the sexual abuse. Id. at 352-53, 638 A.2d at 261-62. The Seto court relied upon a federal district court decision, Baity v. Lewis, 763 F.Supp. 802 (E.D.Pa.1991), as well as this court’s recent decision in McD. v. Rosen, 423 Pa.Super. 304, 621 A.2d 128 (1993).

The federal court in Baily rejected the discovery rule argument under facts similar to Seto. The court reasoned:

The Pennsylvania courts have been unwilling to allow the incapacity of a plaintiff to toll the statute of limitations. The existence of an insanity tolling provision has been pivotal to courts in other jurisdictions that have allowed plaintiffs in Bailey’s position to proceed. The Pennsylvania [J]udicial [C]ode specifically provides, however, that “[except as otherwise provided by statute, insanity or imprisonment does not extend the time limited by this subchapter for the commencement of a matter.” 42 Pa.C.S. § 5533(a). Moreover, courts applying Pennsylvania law have consistently stated that the statute of limitations runs against persons under a disability, including one who is mentally incompetent.

Id. at 805-808, affirmed 950 F.2d 721, 722 (3d Cir.1991) (footnote omitted).

In McD., a panel of this court reached the same result. The court held that the discovery rule was inapplicable to toll the limitations period where the plaintiff contended that, while she had been aware of the sexual assaults, she was unaware of the impropriety of the defendant’s acts. The court found that “reasonableness” was the applicable standard in determining the plaintiffs diligence in pursuing the claim, and that the discovery rule, therefore, was inapplicable due to the well settled prohibition against consideration of “ ‘a plaintiffs mental incapacity as a factor to be considered in determining the reasonableness of plaintiffs diligence.’ ” Id. at 310, 621 A.2d at 131 (quoting Barren by Barren v. United States, 839 F.2d 987, 994 (3d Cir.1988) (Sloviter, J. concurring)). See also E.J.M. v. Archdiocese of Philadelphia, 424 Pa.Super. 449, 457-59, 622 A.2d 1388, 1393 (1993) (Pennsylvania law does not permit the tolling of a statute of limitations on account of an incapacity of the particular plaintiff which allegedly impaired his or her ability to discover the injury or its cause); see generally Use of the Discovery Rule in Cases of Alleged Child Sexual Abuse: Does the Statute of Limitations Ever Run?, 28 Duq.L.Rev. 777 (Summer, 1990).

In sum, the Seto court, like the McD. court, was precluded by statute from applying the discovery rule. Likewise, we are bound in this case. The legislature, in enacting sections 5501 and 5533 of the Judicial Code, pronounced that mental incapacity, whether by virtue of a diagnosed mental illness such as multiple personality disorder, or repression, does not operate to extend the limitation period because a “reasonable” person would have discovered the injury. A question arises, however, as to whether it is appropriate to utilize this standard when a mental incapacity is averred as the reason for delayed discovery of an injury. It is not for this court to decide whether a plaintiff who alleges repression or other mental disability had the ability to know of the injury and its cause. As the Seto court stated, “[i]f there is to be any departure from the clear and certain pronouncement of prior case law and statute, it must be taken by our legislature or Supreme Court.” Seto, 432 Pa.Super. at 353, 638 A.2d at 262. We must defer to their wisdom.

Affirmed.

      . The parties stipulated that Thomas Pearce’s loss of consortium claim was not actionable.

      . The parties stipulated that the affirmative defense raised in preliminary objections could be considered on a case stated basis. Procedurally, the affirmative defense of the statute of limitations is properly pleaded in new matter, Pa.R.C.P. 1030, and not in preliminary objections. See Pa.R.C.P. 1028(a)(1) (preliminary objections are limited to lack of subject matter or personal jurisdiction, improper venue or improper form of service of a writ of summons or complaint); see also Note, Pa.R.C.P. 1028 (The defense of the bar of a statute of frauds can be asserted only in a responsive pleading as new matter under Rule 1030.).

      . In 1978, the Judicial Code was amended in order to codify existing law precluding extension of the statute based on infancy, insanity and imprisonment. See 42 Pa.C.S.A. § 5533. In 1984, section 5533 was amended to provide that a minor, upon attaining the age of eighteen, had the full statutory period in which to commence an action. 42 Pa.C.S.A. § 5533(b). Section 5533(b) provides:
      § 5533. Infancy, insanity or imprisonment
      (a) General rule. — Except as otherwise provided by statute, insanity or imprisonment does not extend the time limited by this subchapter for the commencement of a matter.
      (b) Infancy. — If an individual entitled to bring a civil action is an unemancipated minor at the time the cause of action accrues, the period of minority shall not be deemed a portion of the time period within which the action must be commenced. Such person shall have the same time for commencing an action after attaining majority as is allowed to others by the provisions of this subchapter. As used in this subsection the term “minor” shall mean any individual who has not yet attained the age of 18.
      As amended 1984, May 30, P.L. 337, No. 67, § 1, effective in 30 days. The amendment became effective on June 30, 1984; it is not retroactive to actions which accrued prior to its effective date. Here, the action accrued in 1973, and the limitation period expired in 1975. This section, therefore, cannot be applied retroactively to revive this action. See Larthey by Larthey v. Bland, 367 Pa.Super. 67, 532 A.2d 456, appeal denied, 518 Pa. 656, 544 A.2d 1343 (1987) (where this section was not effective until five years after minor’s cause of action had accrued and three years after limitations period had run on the cause of action, it could not be used to revive an action commenced on behalf of a minor); Lewis v. City of Philadelphia, 360 Pa.Super. 412, 520 A.2d 874 (1987) (minor injured prior to effective date of this section and whose claims were time barred prior to effective date of this section could not rely on this section to revive the barred claim). Even if the amendment were to apply here, it would not aid in reviving the action; the amendment would have extended the limitation period to 1977, and the complaint was not filed until 1995.

      . Other jurisdictions have declined to apply the discovery rule to toll the running of the statute of limitations on a suit despite the plaintiff's allegedly or actually having repressed or suppressed knowledge of the cause of action. See, e.g., DeRosev. Carswell, 196 Cal.App.3d 1011, 242 Cal.Rptr. 368 (6th Dist.1987); Johnson v. Johnson, 701 F.Supp. 1363 (N.D.Ill.1988) (applying Illinois law); E.W. v. D.C.H., 231 Mont. 481, 754 P.2d 817 (1988); Schmidt v. Bishop, 779 F.Supp. 321 (1991) (applying New York law); Lovelace v. Keohane, 831 P.2d 624 (1987); Tyson v. Tyson, 107 Wash.2d 72, 727 P.2d 226 (1986); Meiers-Post v. Schafer, 170 Mich.App. 174, 427 N.W.2d 606 (1988); Doe v. R.D., 308 S.C. 139, 417 S.E.2d 541 (1992); Whatcott v. Whatcott, 790 P.2d 578 (Utah App. 1990).
      A recent decision in New Jersey, however, has held in favor of the plaintiff on this issue. See Jones v. Jones, 242 N.J.Super. 195, 576 A.2d 316, certif. denied 122 N.J. 418, 585 A.2d 412 (1990). There, the plaintiff alleged that her father repeatedly abused her sexually for over ten years, beginning when she was eleven years old. The operative statute provided in part that if a person is insane at the time the cause of action accrues, such person may commence the action within such as statutorily limited after “coming ... of sane mind.” (N.J.S.A. 2A:14-21). The court, satisfied that the mental trauma resulting from a pattern of sexual abuse may constitute insanity under the statute, reversed summary judgment.