text:
    464 A.2d 469
    Howard G. HENNINGER and Oleta V. Henninger, his wife v. Clarence S. RILEY. Appeal of Clarence S. RILEY and The Pennsylvania Insurance Guaranty Association.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1981.
    Filed Aug. 12, 1983.
    Petition for Allowance of Appeal Denied Feb. 8, 1984.

      Joseph M. Hankins, Philadelphia, for appellants.
    F. Lee Shipman, Harrisburg, for appellees.
    Before HESTER, McEWEN and SHERTZ, JJ.
   McEWEN, Judge:

This appeal has been taken by Clarence S. Riley, the defendant in a trespass action and an insured of an insolvent insurance company, and by The Pennsylvania Insurance Guaranty Association from an Order of the Common Pleas Court that entered judgment in favor of the plaintiffs and against the Association in the amount of $10,000.00, pursuant to an interpretation by the court of certain provisions of The Pennsylvania Insurance Guaranty Association Act. We reverse.

Appellees initiated an action in trespass against Clarence S. Riley as a result of a collision between their vehicles. Appellees at all pertinent times' maintained with United States Fidelity & Guarantee Insurance Company (USF&G) a policy of automobile insurance that included uninsured motorist coverage. Mr. Riley was at the time of the accident insured by the Summit Insurance Company of New York under a policy with a liability limit of $10,000.00. The Summit Insurance Company thereafter became insolvent and, as a result, The Pennsylvania Insurance Guaranty Association, pursuant to the provisions of The Pennsylvania Insurance Guaranty Association Act, represented the interests of Mr. Riley. Counsel for the parties to the action in trespass agreed to the entry of a verdict in the amount of $10,000.00 in favor of the plaintiffs and against the Pennsylvania Insurance Guaranty Association in the stead of Clarence S. Riley, pursuant to an understanding that the Association would undertake to secure appellate review of the following question:

If a plaintiff fails to make a claim against his own insurer for uninsured motorist benefits based on the insolvency of defendant’s motor vehicle liability insurer, is not plaintiff barred from pursuing a claim against the individual defendant and The Pennsylvania Guaranty Association Act because of plaintiff’s failure to exhaust his rights as required by § 503(a) of The Pennsylvania Insurance Guaranty Association Act, 40 P.S. § 1701.503(a)?

The Pennsylvania Insurance Guaranty Association Act (the Act) created The Pennsylvania Insurance Guaranty Association (the Association) for the purpose, inter alia of enabling claimants or policyholders to avoid financial loss as a result of the insolvency of an insurer, and directed that the Association, upon the insolvency of an insurer, be “deemed the insurer to the extent of its obligation on the covered claims and to such extent shall have all rights, duties and obligations of the insolvent insurer as if that insurer had not become insolvent.” The obligation of the Association is restricted to a “covered claim” which is defined as:

[A]n unpaid claim ... which arises under a property and casualty insurance policy of an insolvent insurer ....

Appellants rely for their assertion that appellees are barred from pursuing this claim against them upon the failure of appellees to have complied with subsection 503(a) of the Act which, appellants assert, requires appellees to have first made a claim against their insurer, USF&G, for uninsured motorist benefits based on the insolvency of Summit Insurance Company. That subsection, which is the focal point of this appeal, provides:

§ 1701.503 NON-DUPLICATION OF RECOVERY
(a) Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer which is also a covered claim, shall first be required to exhaust his right under such policy. Any amount payable on a covered claim under this act shall be reduced by the amount of any recovery under such insurance policy.

Counsel for the parties have agreed that the contract of insurance between appellees and USF&G contained uninsured motorist protection which, under the applicable provision of the Pennsylvania Uninsured Motorist Statute, 40 P.S. § 2000(b), includes the following coverage:

§ 2000. Motorists uninsured, insurance protection
(b) For the purpose of this coverage the term “uninsured motor vehicle” shall be deemed to include an insured motor vehicle where the liability insurer thereof is unable to make payment with respect to the legal liability of its insured within the limits specified therein because of insolvency.

It would seem to follow, therefore, that when. Summit became insolvent, the automobile of Mr. Riley became an. “uninsured motor vehicle”, triggering the right of the plaintiffs to recover from USF&G under the uninsured motorist coverage of their policy with that carrier.

While the distinguished President Judge Dale F. Shugart provides a quite persuasive expression of view in support of the conclusion that Mr. Riley was not an uninsured motorist because the Association became his insurer, we cannot accept that rationale. First, the existence of the Association does not make Mr. Riley an “insured” motorist since, as we have noted, the very terms of the appellees’ policy establish that the car of Mr. Riley was an “uninsured motor vehicle”. Second, the Act itself explicitly declares that the Association does not stand in the stead of the insolvent insurer until:

1. The claim in question is determined to be a “covered claim”. (40 P.S. § 1701.201, as that term is defined by 40 P.S. § 1701.103(5)).
2. The extent of the obligation of the Association on the covered claim is determined. (40 P.S. § 1701.201).
' 3. The claimant has exhausted his rights against his insurer under any provision in an insurance policy he maintains. (40 P.S. § 1701.503(a)).

First, the claim of appellees against the Association certainly meets the definition of a “covered claim” since it is a claim that remains unpaid by reason of the insolvency of an insurance carrier. Second, the extent of its obligation in this case has been determined, namely, the full amount of the covered claim, since the claim of appellees by reason of the judgment in their favor in the amount of $10,000.00 does not exceed the limit of the liability under the policy between Summit, the insolvent insurer, and Mr. Riley. Third, this court has already, in the fine opinion of our distinguished colleague, Judge Edmund B. Spaeth, expressed approval of the rationale that precludes any recovery by a claimant under the Act unless the rights of a claimant under his own uninsured motorist coverage have first been exhausted under § 503(a) of the Act. Sands v. Pennsylvania Insurance Guaranty Association, 283 Pa. Super. 217, 423 A.2d 1224 (1980). See also King v. Jordan, 601 P.2d 273 (Alaska 1979); Spearman v. State Security Insurance Company, 57 Ill.App.3d 393, 14 Ill.Dec. 729, 372 N.E.2d 1008 (1978); Vokey v. Massachusetts Insurers Insolvency Fund, 381 Mass. 386, 409 N.E.2d 783 (Mass.1980). Accord State Farm Mut. Auto. Liab. Ins. Co. v. Kiser, 168 N.J.Super. 230, 402 A.2d 952 (1979).

We, therefore, hold that § 503(a) of the Act requires that appellees first exhaust their rights under the uninsured motorist coverage afforded by their policy with USF&G before proceeding against the Association since such an effort must precede the creation of any obligation by the Association to serve as the insurer. We have already noted:

That appellees have uninsured motorist coverage under their policy with USF&G.
The rights of appellees under their uninsured motorist coverage with USF&G accrued when the liability insurer, Summit, of the insured motor vehicle, the Riley automobile, became unable by reason of insolvency to provide for payment of the sum for which its insured was liable. The claim of appellees is “also a covered claim” as the term “covered claim” is defined by the Act.

It seems, therefore, indisputable that (1) the non-duplication provisions of § 503(a) of the Act are applicable, (2) appellees were subject to the exhaustion requirements of that section and (3) the failure of appellees to enforce their claim for uninsured motorist benefits under their policy with USF&G precludes their recovery under the Act.

Appellants also assert that if the claim of appellees in the amount of $10,000 against the Association is valid, then the non-duplication statute requires that the workmens’ compensation benefits received by the husband-appellee must be credited against the judgment. We need not, in view of our holding, consider or discuss this issue although it would seem that there is no merit to the argument of appellant that the Association would be entitled to such a reduction. See Bullock v. Pariser, 311 Pa.Super. 487, 457 A.2d 1287 (1983); Sands v. Pennsylvania Insurance Guaranty Association, supra.

Judgment in favor of appellees reversed. Judgment to be entered in favor of Clarence S. Riley and The Pennsylvania Insurance Guaranty Association.

SHERTZ, J., did not participate in the consideration or decision of this case.

      . 40 P.S. § 1701.101 et seq.

        . 40 P.S. § 1701.102.

      . 40 P.S. § 1701.201(b)(1)(H).

      . 40 P.S. § 1701.103(5)(a).

      . 40 P.S. § 1701.503(a).

      . Since the Act (40 P.S. 1701.201(b)(l)(i)), states the obligation of the Association shall only be that amount of the covered claim between $100.00 and $300,000.00, the claim of appellees is subject to the deductible amount of $100.00.

      . Nor may it be said that Hickerson v. Protective National Insurance Company, 383 So.2d 377 (La.1980), represents a contrary holding. The Pennsylvania Uninsured Motorist Statute specifically denies to an insurance carrier which has provided for a payment under its uninsured motorist coverage any right of recovery against the insured of the insolvent carrier:
      (d) In the event of payment to any person under the coverage required by this section, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made, including the proceeds recoverable from the assets of the insolvent insurer. Whenever an insurer shall make payment under the coverage required by this section, which payment is occasioned by an insolvency, such insurer’s right of recovery or reimbursement shall not include any rights against the insured of said insolvent insurer, but such paying insurer shall have the right to proceed directly against the insolvent insurer or its receiver, and in pursuance of such right such paying insurer shall possess any rights which the insured of the insolvent insurer had personally made the payment. 40 P.S. § 2000(d). (emphasis supplied).
      While the Louisiana equivalent of the Pennsylvania Insurance Guaranty Association Act and the Pennsylvania Act itself are both reflections of the Model Bill, an insurer which had in Louisiana provided for payment under its uninsured motorist coverage was not precluded by Louisiana law from a subrogation right of recovery from the insured of the insolvent carrier. The lack of such a prohibition appears to have been the factor that compelled the Hickerson court to its conclusion.


source: Caselaw Access Project

author: McEWEN, Judge:

license: Public Domain

text:
    464 A.2d 473
    COMMONWEALTH of Pennsylvania, Appellant v. Wayne A. DANCY.
    Superior Court of Pennsylvania.
    Submitted Nov. 16, 1982.
    Filed Aug. 12, 1983.

      Sarah Van den Braak, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellee.
    Before BROSKY, McEWEN and WATKINS, JJ.
   McEWEN, Judge:

Appellee had been adjudged guilty of aggravated assault, recklessly endangering another person and endangering the welfare of children after kicking and choking his own one month old baby. The trial judge entered an order that discharged appellee after granting the post verdict motion of appellee that asserted that it was error for the hearing judge to have granted the petition of the Commonwealth to extend the 180 day period by eleven days. The Commonwealth has appealed from that order. We reverse and remand.

Appellee was arrested at the time of the attack on July 8, 1980, and a complaint was filed on the same day. The 180 day period within which trial of appellee was to commence in accordance with Rule 1100 expired on January 5, 1981. The matter was scheduled for trial on December 23, 1980, but was continued upon the motion of the Commonwealth by reason of the failure of the mother of the child to appear at the trial on that date. The Commonwealth, on December 26, 1980, filed a petition to extend the 180 day period for trial, to which counsel for appellee filed an answer on January 12, 1981, and upon which the distinguished Judge Edward Rosenwald held a hearing on January 16, 1981, before directing that the case was to be tried on that very date or the charges were to be dismissed. The trial did in fact commence that day before the learned Judge Leon Katz, sitting without a jury, who found appellee guilty of all charges, ordered a pre-sentence investigation, including a psychiatric report, and increased the bail to $20,000.00. Six months later, on July 15, 1981, the trial judge, at the conclusion of the presentation of oral argument by counsel for the parties upon the motion of appellee, but without any additional testimony: (1) concluded that the Commonwealth had not, at the hearing upon the petition to extend, shown due diligence; (2) granted the motion of appellee to dismiss all charges and (3) discharged appellee.

The Commonwealth presented but one assertion in its brief:

The post-verdict court erred in reversing a well-based, judicially authorized Pa.R.Crim.P. 1100 extension, granted due to the unavailability of a necessary and important witness, simply because the Commonwealth ultimately obtained a conviction without her testimony.

The sole issue of our focus is the due diligence of the Commonwealth and, specifically, the due diligence of the Commonwealth concerning the trial date of December 23, 1980. The Commonwealth has the burden, by a preponderance of the evidence, of showing that it has met the requirements of Pennsylvania Rule of Criminal Procedure 1100(c). Commonwealth v. McNeill, 274 Pa.Super. 257, 418 A.2d 394 (1980). When we review the ruling of a hearing court that the Commonwealth has met this burden, we consider only the evidence presented by the Commonwealth and so much evidence as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979); Commonwealth v. McNeill, supra.

The trial judge, who determined appellee was guilty of all charges but subsequently discharged him by reason of his conclusion that the prosecutor had not been duly diligent, acknowledges that the due diligence required of the prosecutor by Rule 1100 has been interpreted to mean that the Commonwealth must exert reasonable efforts to provide for the trial to commence within 180 days. “The test in determining whether the Commonwealth acted with due diligence is one of reasonableness under the circumstances.” Commonwealth v. Wroten, 305 Pa.Super. 340, 345, 451 A.2d 678, 681 (1982). “As long as the Commonwealth has acted reasonably in light of the circumstances at the time, it has acted with due diligence ‘even if it appears in hindsight that there were other, possibly more desirable or efficacious methods that might have been tried.’ ” Commonwealth v. Tann, 298 Pa.Super. 505, 507-508, 444 A.2d 1297, 1298 (1982). Quoting from Commonwealth v. Long, 288 Pa.Super. 414, 432 A.2d 228 (1981).

The trial judge concluded the Commonwealth fell short of this standard for the following reasons:

There was no evidence that the prosecutor had served the mother of the child with a subpoena commanding her appearance for the trial on December 23, 1980.
The prosecutor did not present evidence that corroborated the testimony of the prosecutor concerning the severity of the weather conditions.
The prosecutor did not eliminate any obstacle of inclement weather by providing transportation to the trial for this critical witness.
The Commonwealth failed to put an explanation on the record as to why, despite the unavailability of a witness, the case should not have been tried on or .before the rúndate.

The Pennsylvania Supreme Court has made clear that Rule 1100 is designed to serve the protection of society every bit as much as it is designed to serve the right of an accused to a speedy trial. Commonwealth v. Genovese, 493 Pa. 65, 425 A.2d 367 (1981). Since the decision of Judge Katz preceded the reported publication of the Genovese decision, he did not have the benefit of the declaration of our Supreme Court:

Rule 1100 ‘serves two equally important functions: (1) the protection of the accused’s speedy trial rights, and (2) the protection of society,’ Commonwealth v. Brocklehurst, 491 Pa. 151, 153-155, 420 A.2d 385, 387 (1980); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). In determining whether an accused’s right to a speedy trial has been violated, consideration must be given to society’s right to effective prosecution of criminal cases, both to restrain those guilty of crimes and to deter those contemplating it. Commonwealth v. Johnson, 487 Pa. 197 n. 4, 409 A.2d 308 n. 4 (1980).
So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 1100 must be construed in a manner consistent with society’s right to punish and deter crime. In considering matters such as that now before us, courts must carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the collective right of the community to vigorous law enforcement as well. Strained and illogical judicial construction adds nothing to our search for justice, but only serves to expand the already bloated arsenal of the unscrupulous criminal determined to manipulate the system.

Id., 493 Pa. at 69-72, 425 A.2d 369-71. We are, nonetheless, required to examine the decision of the trial court in light of this declaration of the Supreme Court.

The final finding of the trial judge, namely, that the Commonwealth failed to provide an explanation on the record as to why the case could not have been tried on or before the rúndate, appears to refer to the holding of Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976) that an extension may be granted only after the Commonwealth has provided not only evidence of its due diligence but also evidence that the inability of the court to try the case prior to the rúndate was unavoidable. The Assistant District Attorney testified at the extension hearing of January 16, 1981, that on the morning of the earlier scheduled trial date, namely, December 23, 1980, he spoke by telephone with the mother of the infant victim and was advised that the snowy conditions precluded her travel to court that day. This witness, who had appeared and presented vital testimony at the preliminary hearing, stated she would be present for the next listing. Our examination of the entire record leaves us unable to fault the decision of the trial prosecutor to continue the trial due to the unexpected availability of a principal witness of the Commonwealth. While it is true the Commonwealth proceeded to trial without the mother some three weeks later, the Commonwealth was forced to do so since the extension granted by the court expired that very day. Since hindsight is born to deceive, the prudent exercise of judgment by the prosecutor on December 23, 1980, cannot be recast by the circumstances of compulsion that forced him on January 16, 1981, to proceed to trial without this witness. As for the question of the availability of judicial resources between December 23, 1980, when the case was continued, and January 5, 1981, the rúndate, the prosecutor who appeared as a witness before the judge who conducted the hearing upon the petition for extension testified:

I informed Judge Forer what the situation was and I requested the earliest possible date on the case. And what the court gave me was [January] 16 back in court room 615. They checked with Criminal Listing and got that date.-

While it may be argued that the failure of the hearing judge to inquire into the statement of availability of judicial resources does not permit an inference that the hearing judge accepted the accuracy of this testimony, it must be noted that the public defender who served as counsel for appellee at the extension hearing challenged neither the credibility of the prosecutor nor the accuracy of his testimony.

The remaining reasons for the decision of the trial judge relate solely to the diligence of the Commonwealth in connection with the trial of December 23, 1980. While it is true the- record does not reflect that the Commonwealth provided for the service of a subpoena upon the mother of the child, and while such a procedure may be the recommended practice, we are not prepared to hold that the failure of the Commonwealth to subpoena the mother of the child was equivalent to a lack of due diligence. Since her baby was the victim of the assault, the mother of the child would under every normal circumstance be vitally interested in the cause of the Commonwealth and the record does not reflect that she failed to appear whenever so earlier advised. The trial judge further found that the severity of the weather conditions, as described in the testimony of the assistant district attorney, was not substantiated although the letter/memorandum/brief of counsel for appellee in support of post-trial motions contained the U.S. Local Time Climatological Report for the month of December, 1980, which reflects that on the pertinent date, namely, December 23, 1980, the weather conditions included fog and glaze, that there was an inch of snow on the ground at 7:00 a.m. and that .9 inches of snow fell that day. The prerogative of requiring substantiation of factual testimony belongs solely to the hearing judge. While the law is clear that the trial judge may in post-verdict proceedings proceed to conclusions of la/w that vary from and are even contrary to the conclusions of law reached by the hearing judge, the trial judge may not reverse the findings of fact of the hearing judge unless there is no basis for the findings. See Commonwealth v. Stumpo, 306 Pa.Super. 447, 452 A.2d 809 (1982); Commonwealth v. Long, supra. There was here, of course, a sufficient basis for the hearing judge to have determined as a fact that the weather conditions prevented the appearance of the principal prosecution witness since there was unchallenged testimony from the prosecutor of that fact. Nor can we accept the proposition that the failure of the Commonwealth to provide for the transportation of the mother of the child to the trial was a lack of due diligence, especially when the public defender who served as counsel for appellee at the extension hearing did not raise such an issue by cross-examination of the prosecutor or express such an assertion to the hearing judge.

Order reversed. Case remanded for the entry of a judgment of conviction upon the verdict and the imposition of sentence. Jurisdiction is relinquished.

      . 18 Pa.C.S.A. § 2702.

      . 18 Pa.C.S.A. § 2705.

      . 18 Pa.C.S.A. § 4304.

      . Pa.R.Crim.P., 42 Pa.C.S.A.

      . The presentation of the U.S. Climatological Report by appellee as an exhibit to its brief in support of post-trial motions is an improper presentation of evidence. It provides, however, verification of the testimony of the prosecutor as to the snowy conditions on the day of the trial.


text:
    464 A.2d 478
    COMMONWEALTH of Pennsylvania v. John Vito RADOGNA, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 16, 1982.
    Filed Aug. 12, 1983.
    Petition for Allowance of Appeal Denied Jan. 16, 1984.

      Nicholas Noel, III, Bethlehem, for appellant.
    Anthony S. Blasco, Assistant District Attorney, Easton, submitted a brief on behalf of Commonwealth, appellee.
    Before BROSKY, McEWEN and WATKINS, JJ.
   McEWEN, Judge:

Appeal No. 2402-81 is taken from the judgment of sentence imposed upon convictions arising from the escape of appellant from custody on September 14, 1979. Appeal No. 2403-81 has been taken from the judgment of sentence imposed upon convictions arising from the discovery of a four inch stainless steel knife in the rectum of appellant after he had been apprehended in Oregon and returned to custody in Pennsylvania. The two appeals have been consolidated for purposes of our consideration.

Appellant on September 14, 1979, while in the custody of deputies of the sheriff of Northampton County, produced what appeared to be a weapon, disarmed the deputies, seized their wallets, took possession of the deputies’ vehicle and escaped. As a result, he was charged with the crimes of escape, recklessly endangering another person, robbery, kidnapping and unauthorized use of an automobile.

Appellant was apprehended in the State of Oregon some four months later and subsequently transported from Oregon to Pennsylvania. At the conclusion of that journey, based upon information from a source located in Oregon, appellant was submitted to an x-ray examination which revealed the four inch knife in his rectum. As a result, he was charged with possessing prohibited offensive weapon, possessing an instrument of crime, possessing an implement for escape and criminal attempt to commit escape.

Appellant was determined by a jury to be guilty of all of the charges arising out of the escape and sentenced to a term of imprisonment of from ten years to twenty years. He underwent a trial without jury upon the charges arising out of the concealed knife and was acquitted of the charge of possessing a prohibited offensive weapon, but was determined to be guilty of the charges of possessing an instrument of a crime, possessing an implement for escape and criminal attempt to commit escape, for which he was sentenced to a total term of four and one half years to twelve years to be served after the sentence imposed upon the charges arising out of the escape.

Appellant in each appeal asserts the trial court erred in refusing the motion of appellant for change of venue. Our examination of the record persuades us that the hearing judge in the Statement of Reasons that accompany the order of August 21, 1980, has quite satisfactorily addressed the issues and properly rejected a change of venue.

Appellant further asserts in each appeal that the evidence was insufficient to sustain the charges upon which the verdict was entered. The Supreme Court stated in Commonwealth v. Young, 494 Pa. 224, 228, 431 A.2d 230, 232 (1981):

The well-established test for reviewing the sufficiency of the evidence is:
‘[wjhether, accepting as true all the evidence and all [the] reasonable inferences therefrom upon which if believed the [finder of fact] could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes for which he has been convicted.’ Commonwealth v. Bayard, 453 Pa. 506, 509, 309 A.2d 579, 581 (1973); Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973). In this regard it must be noted that the finder of fact has the right to reject part or all of the [witness’] testimony even if uncontradicted. Commonwealth v. Chermansky, 430 Pa. 170 at 174, 242 A.2d 237 at 240. Commonwealth v. Taylor, 461 Pa. 557, 560, 337 A.2d 545, 546 (1975), quoting Commonwealth v. Coleman, 455 Pa. 508, 510, 318 A.2d 716, 717 (1974).

Our review of the record pursuant to this standard compels the conclusion that there is no merit to any claim that the evidence concerning any specific charge was insufficient.

A further assertion presented by appellant in both appeals arises from the rubber stamp facsimile of the district attorney and the lack of a signature or mark by the district attorney or an authorized deputy upon the bills of information. It is upon that basis that appellant argues he should be discharged or, in the alternative, that his trial counsel was ineffective by reason of the failure of counsel to request the dismissal of the charges prior to trial. Pennsylvania Rule of Criminal Procedure 225(b) provides, in pertinent part, that an information “shall be signed by the attorney for the Commonwealth.” This court, in the opinion of our distinguished colleague, Judge James R. Cavanaugh, in Commonwealth v. Veneri, 306 Pa.Super. 396, 404, 452 A.2d 784, 788 (1982) has held:

[T]he signature requirement of Pa.R.Crim.P. 225(b) is directory only and that its absence renders an information merely voidable and curable by amendment if properly raised in a pre-trial motion to quash. Pa.R.Crim.P. 306.

Since appellant failed to raise the issue of the validity of the unsigned information in pre-trial motions, we conclude that he has waived this issue and is not entitled to discharge. Nor is there merit to the further assertion of appellant that trial counsel was ineffective by reason of his failure to request dismissal of the charges prior to trial since “[w]e will not hold counsel ineffective for failing to foresee changes in the law.” Commonwealth v. Turner, 309 Pa. Super. 330, 333, 455 A.2d 185, 186 (1983) (citing Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977)). The trial of appellant upon the charges which comprised this appeal was held in 1980, prior to the 1982 Veneri decision, supra, and prior to our holding in Commonwealth v. Emanuel, 285 Pa.Super. 594, 428 A.2d 204 (1981), that the use of the rubber stamp facsimile of the signature of the district attorney does not meet the requirement of Rule 225(b).

The remaining contention in connection with the appeal from the convictions arising out of the escape from Pennsylvania is the assertion of appellant that the trial court erred by reason of a failure to dismiss the charges under Rule 1100 of the Pennsylvania Rules of Criminal Procedure which requires that trial “commence no later than one hundred and eighty (180) days from the date on which the complaint is filed.” The criminal complaint was filed on September 19, 1979. The matter was not tried, however, for more than a year, specifically, September 25, 1980, a date one hundred ninety-one (191) days subsequent to the one hundred eighty (180) day run date of March 17, 1980. Rule 1100(d) excludes from the computation of the one hundred eighty (180) day period “such period of delay at any stage of the proceedings as results from ... the unavailability of the defendant”. A study of the record reveals the following periods of delay occurred as a result of “the unavailability of the defendant”:

The defendant fled the jurisdiction on September 14, 1979, and was a fugitive until January 30, 1980, when the Pennsylvania authorities were informed that appellant was in custody in Oregon.
While Pennsylvania became aware on January 30, 1980, that appellant was in custody in Oregon, Pennsylvania was unable to secure custody of appellant until May 1, 1980, as a result of the refusal of appellant to waive extradition.

It is clearly established that the time during which an accused is a fugitive is excludable provided that the authorities were diligent in their search. Commonwealth v. Polsky, 493 Pa. 402, 426 A.2d 610 (1981); Commonwealth v. Lyles, 315 Pa.Super. 194, 461 A.2d 1237 (1983). Counsel for appellant during the pre-trial proceedings stipulated that the police had been duly diligent in their search for appellant after his escape and, therefore, appellant concedes his unavailability for this period of one hundred thirty-three (133) days. The law is also clear that the period during which an accused contests extradition is excludable provided the Commonwealth is diligent in its effort to obtain custody of the accused. The Commonwealth here proceeded promptly to initiate extradition proceedings and on May 1, 1980, after an extradition hearing, appellant was delivered into the custody of Pennsylvania authorities. As a result, there was a further delay and excludable period of ninety-two (92) days. Commonwealth v. McKenna, 498 Pa. 416, 446 A.2d 1274 (1982); Commonwealth v. Roman, 494 Pa. 440, 431 A.2d 936 (1981); Commonwealth v. Polsky, supra. It thus appears the period of time between September 19, 1979, and May 1, 1980, a period of two hundred and twenty-five (225) days, must be excluded from the calculation and the hearing judge properly determined that there had been compliance with the one hundred eighty (180) day trial mandate of Rule 1100.

Appellant further asserts that it was error to refuse to suppress the evidence concerning the x-ray examination of appellant and the consequent removal of the knife from his rectum. The opinion of the court en banc has quite fairly and properly addressed this issue and wé share their conclusion that the trial court properly refused to suppress the evidence since the search was not unreasonable and a violation of the constitutional rights of appellant.

And, finally, appellant argues “that the sentences imposed by the lower court in both 2402-81 and 2403-81 are unnecessarily harsh and unduly severe”. While the appellate court has been traditionally reluctant to intrude upon the sentencing discretion of the trial court since the trial court is in a far better position to weigh all the facts involved in the determination of the proper sentence, that discretion has more recently been circumscribed by not only judicial decisions but also by the Sentencing Code (42 Pa.C. S.A. § 9701 et seq.) and by the Rules of Criminal Procedure. This court in Commonwealth v. Franklin, 301 Pa.Super. 17, 446 A.2d 1313 (1982), delineated all of the precepts with which the sentencing court must comply if the sentence imposed is to remain undisturbed. Our examination of the record leads us to conclude that the sentencing judge in each case met those standards and, accordingly, we reject this assertion of appellant.

While we reject the contention of appellant that the sentences imposed were unnecessarily harsh and unduly severe, we, nonetheless, remand Appeal No. 2403-81 for resentencing. The Crimes Code, specifically, § 906, provides that “[a] person may not be convicted of more than one [inchoate crime] for conduct designed to commit or culminate in the commission of the same crime.” The trial judge, nonetheless, sentenced appellant for the two inchoate crimes of possessing instruments of crime and criminal attempt to commit escape and imposed a term of imprisonment of from two and one half to five years for the former and a consecutive term of imprisonment of from two to seven years for the latter. It will not suffice for us to vacate the lesser sentence since a review of the careful and thorough statement provided by the learned judge at the sentencing hearing indicates the judge very likely contemplated a longer term of imprisonment than the term of from two to seven years for the crime of criminal attempt to commit escape and, as a result of our declaration that separate sentences may not be imposed for the crimes, the sentencing judge should be permitted to reconsider the sentence to be imposed for the criminal activity of which appellant was found guilty. As this court stated in Commonwealth v. Lezinsky, 264 Pa.Super. 476, 480, 400 A.2d 184, 186 (1979) (citations omitted):

[Wjhere we cannot determine whether the declared invalidity of a conviction on one count may have affected the lower court’s sentencing on the remaining counts, we must remand to give the lower court an opportunity to reconsider sentencing.

See Commonwealth v. Maguire, 307 Pa.Super. 80, 452 A.2d 1047 (1982); Commonwealth v. Jackson, 280 Pa.Super. 522, 421 A.2d 845 (1980).

Judgment of sentence at No. 2179 of 1979, Appeal No. 2402 Philadelphia, 1981 is affirmed.

Judgment of sentence at No. 1434 of 1980, Appeal No. 2403 Philadelphia, 1981 is vacated and the case is remanded for resentencing in accordance with this opinion. Jurisdiction is relinquished.

      . The applicable portion of Pa.RXrim.P., Rule 1100, 42 Pa.C.S.A., during the time pertinent hereto, read:
      (d) In determining the period for commencement of trial there shall be excluded therefrom such period of delay at any stage of the proceedings as results from:
      (1) the unavailability of defendant....
      The changes effective January 1, 1982, have no relevance to the issues here considered.

      . 18 Pa.C.S.A. § 907.

      . 18 Pa.C.S.A. § 901. -


author: BECK, Judge:

text:
    464 A.2d 482
    Richard and Rosalie WALKER, Parents of the Deceased. As Co-Administrators of the Estate of Juana D. Johnson, Deceased v. Peter PUGLIESE, M.D. and I.O. Silver.
    Superior Court of Pennsylvania.
    Argued March 10, 1983.
    Filed Aug. 12, 1983.

      Jerome Gamburg, Philadelphia, for appellants.
    Wiley P. Parker, Lebanon, for Pugliese, appellee.
    Peter J. Curry, Harrisburg, for Silver, appellee.
    Before WICKERSHAM, BECK and MONTEMURO, JJ.
   BECK, Judge:

Juana D. Johnson died of hepatitis at the age of nineteen in November 1977. Her parents and co-administrators of her estate, Appellants Richard and Rosalie Walker, filed a complaint in trespass averring medical malpractice against Peter Pugliese, M.D. and Dr. I.O. Silver, appellees, who attended Juana before her death. The Walkers appeal from an order of the Court of Common Pleas, Dauphin County, which denied their Petition to Open a judgment of non pros entered against them for failure to provide full answers to interrogatories issued by appellees Pugliese and Silver. The principal issue presented in this appeal is whether the lower court abused its discretion in refusing to grant the Petition to Open.

Juana D. Johnson, a heroin addict, was placed in a detoxification program in the Berks County prison in 1976. She was seen by Dr. Pugliese, an employee of Berks County, while she was in Berks County prison and also once at the Reading Hospital emergency room, at which time he prescribed certain medication. Juana was transferred to Dauphin County prison in September 1976. After a stay of four days she was transferred back to Berk County prison. On her return she told a matron at Berks County that she had requested medical treatment while at Dauphin County and been refused. Juana was sent back to Dauphin County on October 7, 1976, and seen by Dr. Silver. She developed chest pains on November 3, and was seen by Dr. Silver again, at which time he prescribed medication for the chest pains. Juana was taken to the emergency room of Harrisburg Hospital on November 5, and died there the next day. The Walkers claim that Drs. Pugliese and Silver failed to diagnose and treat Juana’s hepatitis, and that her death resulted from their malpractice.

The Walkers filed their original action against Pugliese and Silver with Arbitration Panels for Health Care on August 22, 1977. The case was transferred to the Court of Common Pleas, Dauphin County, in January 1981. Pugliese filed interrogatories to be answered within 30 days on February 11, 1981, and the Walkers filed answers on April 13. Silver filed interrogatories on February 9, 1981 that have not been answered. On April 30 a rule was issued (returnable within 20 days) upon the Walkers to show cause why they should not be compelled to answer fully the interrogatories of the doctors. The rule was made absolute on June 16 and the Walkers were ordered to file full and complete answers. On August 13, 1981, Pugliese filed a Motion for Sanctions against the Walkers in their suit against Pugliese and Silver. Argument was scheduled for October 26. The Walkers’ counsel forwarded the matter to co-counsel William Proctor, a member of the Dauphin County bar. Mr. Proctor did not appear for argument and a judgment of non pros was entered against the Walkers. They unsuccessfully petitioned to open the judgment on November 30.

A Petition to Open a judgment of non pros is addressed to the equitable powers of the court. It is a request to open a judgment of non pros by way of grace and not of right. Its grant or refusal is within the lower court’s discretion, which will not be reversed on appeal absent a showing of abuse of discretion. A court will not exercise its discretion to open a judgment of non pros unless three factors coalesce: (1) the Petition must be promptly filed; (2) a reasonable explanation or excuse must be offered; (3) facts constituting grounds for the cause of action must be alleged. Lewis v. Reid, 244 Pa.Super. 76, 366 A.2d 923 (1976); Corcoran v. Fiorentino, 277 Pa.Super. 256, 419 A.2d 759 (1980).

Counsel for the Walkers telephoned opposing counsel two weeks after judgment was entered, in an effort to stipulate to open the judgment. The Walkers received a refusal by mail on November 16. Nine days later, November 25, the Petition to Open was mailed to the Dauphin County Prothonotary. We conclude that the condition of promptness is satisfied.

The requirement of alleging facts constituting a cause of action is not an issue in this case because the Walker’s original Complaint fulfills this condition. Silver’s counsel filed a praecipe asking that the case be listed for trial in September, and counsel for Pugliese acquiesced. The-Walkers argue that the course of conduct in listing the case for trial constituted a waiver of the right to judgment of non pros, on the authority of Poluka v. Cole, 222 Pa.Super. 500, 295 A.2d 132 (1972). In that case the non pros was entered because of delay, but removed because the defendants had indicated a willingness to come to trial. Our Court held that the defendant’s conduct constituted a waiver of laches. See also De Siato v. Shahboz, 277 Pa.Super. 333, 419 A.2d 798 (1980), holding that a party’s right to non pros for plaintiff’s delay is waived by conduct indicating a willingness to try the case on the merits notwithstanding the delay. We do not agree that Poluka v. Cole controls the instant case because here the non pros was not entered for delay but as a result of a Motion for Sanctions. Therefore, we hold that there has been no waiver.

We now examine the final condition required to open the judgment, a reasonable explanation or excuse of the Walkers’ conduct. The non pros was entered as a sanction pursuant to Pa.R.C.P. 4019(a)(1) and (c)(3) for failure to provide sufficiently full answers to interrogatories under Rule 4005. Our Court has recently emphasized that discovery rules are important procedural safeguards to prevent surprise and unfairness to the parties and to preserve a trial on the merits:

When expert testimony is involved, it is even more crucial that surprise be prevented, since the attorneys will not have the requisite knowledge of the subject with which to effectively rebut unexpected testimony. By allowing for early identification of expert witnesses and their conclusions, the opposing side can prepare to respond appropriately instead of trying to match years of expertise on the spot. Thus, the rule serves as more than a procedural technicality; it provides a shield to prevent the unfair advantage of having a surprise witness testify.

Sindler v. Goldman, 309 Pa.Super. 7, 12, 454 A.2d 1054, 1056 (1982).

Pugliese claims the following three deficiencies in the Walkers’ answers:

1. “Interrogatory 1(c):

state the substance of the opinions as to which each such expert is expected to testify.
Expert is expected to testify that the standard of care given to the decedent was below the standard of care applicable in the medical community at the time in question. He will also testify that the failure to treat and diagnose the condition of the decedent lead to her death.”

Pugliese contends that the response fails to describe with specificity the nature of services performed, or the acts which fell below the applicable standard of care.

2. “Interrogatory 3(d):

the name and address of every person, firm or corporation he was employed by within the last ten (10) years and a detailed description of his duties at each such place of employment; if he was self-employed, state specifically and in detail the description of his duties and responsibilities.

Not applicable.”

Pugliese contends that the response fails to state specifically and in detail the work of the expert by virtue of his self-employment.

3. - Interrogatory 4:

“If the allegations in your Complaint are based in whole or in part on expert opinion, identify by paragraph number each such allegation which is based in whole or in part upon expert opinion, and not based upon plaintiffs’ own knowledge and/or opinion.”

This interrogatory was unanswered.

The Walkers explain that when the expert interrogatories were issued, they were answered by Philadelphia counsel and filed by Dauphin County counsel. When the Motion to Compel more complete answers was made, Dauphin County counsel undertook to handle the matter, but failed to do so through inadvertence or mistake. Philadelphia counsel, assuming that all had been attended to, did not appear or expand the answers. The failure, if any, was one of mistake and breakdown of communication. Moreover, the matters complained of were inconsequential and neither misleading nor wilfully dilatory. The Walkers believe the first answer was sufficiently complete; that the second did not apply to a medical expert, and that the third was also inapplicable in that the allegations in the Complaint did not originate with expert testimony. In sum, they contend that the objections were frivolous, and that the absence of the information requested caused Pugliese and Silver no prejudice. They provided the name of their expert, and informed Pugliese that his testimony would be based on the official records of the Commonwealth (R. 2).

Rule 4019 allows the trial court, on motion, to make an appropriate order if a party fails to file sufficient answers to interrogatories. No specific sanctions are mandated, and the choice and imposition of sanctions is within the discretion of the trial court. Catina v. Maree, 272 Pa.Super. 247, 415 A.2d 413 (1979).

Members of this Court have expressed differing opinions on the question of when a non pros for failure to supply answers to interrogatories is appropriate. Judge Hoffman’s concurrence in Lewis v. Reid, supra, explains that non pros may be imposed as a sanction by Rules 1037 and 4019 for failure to comply with a court order (in which case no prejudice to the other- party need be demonstrated), or because the plaintiff has failed to prosecute his action within a reasonable time (where the defendant must show that he has suffered prejudice as a result of the delay). Judge Spaeth’s dissent in Lewis v. Reid argues against applying different standards to the review of non pros, since the essence of a sanction is punishment, and no matter \yhat preceded the judgment, the decision as to whether the judgment should stand or fall should be decided according to general principles of equity. We are persuaded that the approach of Judge Spaeth is appropriate to the facts of this case.

In Gonzales v. Procaccio Bros. Trucking Co., 268 Pa.Super. 245, 407 A.2d 1338 (1979) Petition for Allowance of Appeal Denied, (in which plaintiff filed a complaint in trespass to recover for injuries sustained when his arm was caught in a conveyor belt, but failed to answer interrogatories) we affirmed-a striking of non pros. We held that Rule 4019 envisioned a procedure by which judicial discretion would select a punishment to fit the crime, and that non pros was too severe a penalty. In Royster v. McGowen Ford, 294 Pa.Super. 160, 439 A.2d 799 (1982) the Court stated that for a party to obtain a sanction for the opposing party’s failure to identify an expert witness and describe the essence of the report, prejudice must be shown. See also Nowosielski v. Kryzosiak, 280 Pa.Super. 243, 421 A.2d 703 (1980) and Gill v. McGraw Electric Company, 264 Pa.Super. 368, 399 A.2d 1095 (1979) which required a showing of prejudice before an expert witness could be excluded from testifying due to failure to comply with a pre-trial order.

Our scrutiny of recent cases in which a Rule 4019 sane- . tion in the form of non pros against a plaintiff was allowed to stand reveals that they differed essentially from this appeal. In Verbalis v. Verbalis, 286 Pa.Super. 209, 212, 428 A.2d 646, 647 (1981) the plaintiff refused absolutely to appear for deposition, in violation of a court order directing him to. appear. In Patronick v. Commonwealth Arbitration Panel for Health Care, 62 Pa.Commw. 439, 436 A.2d 1252 (1981), the plaintiff gave no information on his expert witnesses. In Jones v. Trexler, 275 Pa.Super. 524, 419 A.2d 24 (1980) plaintiff’s counsel failed altogether to respond to interrogatories and failed to file argument brief. Even in Jones v. Trexler, where the deficiencies of answers to interrogatories were more severe than the Walkers’, a dissent was filed which stated:

This case involves the death of a 16 year old cyclist, allegedly as a result of the negligent operation of a tractor trailer. To dismiss with prejudice such an action for what is basically a failure to respond to form interrogatories seems unnecessarily harsh and misdirected. It is the lawyer who should be punished for his disregard of the rules, not his innocent client. Why throw the baby out with the bathwater (275 Pa.Superior Ct. at 529, 419 A.2d at 27).

We conclude that a judgment of non pros against the Walkers was too severe a penalty for their partial failure to provide full answers to the interrogatories of Pugliese and Silver, and that the Walkers have met the requirements necessary to open the judgment. We therefore hold that it was an abuse of discretion to deny their Petition to Open. The order of the lower court is reversed, and this case is remanded for proceedings not inconsistent with this opinion. Jurisdiction is relinquished.

WICKERSHAM, J., concurs in the result.

      . We note that Silver presents a procedural argument. Silver contends that the order of the chairman of the Health Care Services Malpractice Arbitration Panels, prohibiting the Walkers from using any expert testimony at trial unless they provided the name of their expert by September 15, 1980, prevented the Court of Common Pleas from redeciding or relitigating the issue by the law of the case (that is, the principle that judges of coordinate jurisdiction sitting in the same court in the same case should not overrule the decisions of each other). Marmara v. Rawle, 264 Pa.Super. 229, 399 A.2d 750 (1979). Silver wrongly apprehends 'the applicable Pennsylvania Rules of Civil Procedure and ignores recent case law. Both 40 Pa.C.S. § 1301.509 and the Explanatory Note to Rules 1801 et seq. governing appeals from decisions of Health Care Services Malpractice Arbitration Panels explain that judicial review of determinations of the arbitration panels is provided by appeal to the court of common pleas, which holds a trial de novo. The Court of Common Pleas of Dauphin County thus correctly heard the case. Silver also argues that 40 Pa.C.S.A. § 1301.309 (conferring exclusive original jurisdiction in medical malpractice cases in the arbitration panels) was good law at the time of the transfer to the Court of Common Pleas, because Mattos v. Thompson, 491 Pa. 385, 421 A.2d 190 (1980) declaring 1301.309 unconstitutional (on the grounds that the resulting delays unduly infringed the constitutional right to trial by jury) was not handed down until after the order of the arbitration panel. However, we agree with the ruling of the Third Circuit in Firich v. American Cystoscope Makers, Inc., 635 F.2d 259 (1980) which concluded that Pennsylvania law would apply Mattos v. Thompson to all cases on appeal. The appeal in the case sub judice was not initiated until after Mattos was filed, and is therefore surely governed by the holding in that case. In so far as the Court of Common Pleas found in Silver’s favor, we have difficulty in understanding why he challenges its jurisdiction. Nevertheless, we respond to his argument and find it meritless.

      . Rule 4019. Sanctions
      (a)(1) The court may, on motion, make an appropriate order if
      (i) a party fails to serve answers, sufficient answers or objections to written interrogatories under Rule 4005;
      (c) The court, when acting under subdivision (a) of this rule, may make
      (3) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or entering a judgment of non pros or by default against the disobedient party or party advising the disobedience;

      . Rule 4005. Written Interrogatories to a Party
      (a) Subject to the limitations provided by Rule 4011, any party may serve upon any other party the original and two copies of written interrogatories to be answered by the party served ....


text:
    Aug. 5, 1983.
    464 A.2d 515
    Cohen, Appellant v. Myers.
    Petition for Allowance of Appeal Denied Dec. 16, 1983.
    Argued March 9, 1982.
    Leon Silverman, for appellant; Jay Lambert, for appellee.

      Before WICKERSHAM, CIRILLO and LIPEZ, JJ.
   Judgment affirmed.


text:
    464 A.2d 515
    Commonwealth v. Brown, Appellant.
    Submitted February 15, 1983.
    Anne L. Wall, Assistant Public Defender, for appellant; Ellen Laura Cohen, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., JOHNSON and MONTEMURO, JJ.
   The judgment of sentence of the lower court is affirmed.


text:
    464 A.2d 515
    Commonwealth v. Cole, Appellant.
    Argued January 19, 1982.
    Abraham J. Golden, for appellant; David L. DaCosta, Assistant District Attorney, for Commonwealth, appellee.
    Before JOHNSON, WATKINS and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    464 A.2d 516
    Commonwealth v. Cooper, Appellant.
    Submitted May 19, 1983.
    Michael J. McAllister, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, BROSKY and BECK, JJ.
   Judgment of sentence affirmed.


text:
    464 A.2d 516
    Commonwealth v. Cronrath, Appellant.
    Submitted April 26, 1983.
    Gary Spohn Fronheiser, Assistant Public Defender, for appellant; George C. Yatron, District Attorney, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and POPOVICH, JJ.
   Judgment of sentence for burglary affirmed.

Judgment of sentence for criminal trespass vacated.


text:
    464 A.2d 516
    Commonwealth v. Day, Appellant.
    Submitted February 17, 1983.
    A. Charles Peruto, Jr., for appellant; Gary Marc Mogil, Assistant District Attorney, for Commonwealth, appellee.
    Before CIRILLO, JOHNSON and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    464 A.2d 517
    Commonwealth v. Deemer, Appellant.
    Petition for Allowance of Appeal Denied Nov. 15, 1983.
    Submitted April 6, 1983.
    W. Thomas Anthony, Jr., for appellant; Comunale LaBarre, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, WIEAND and HOFFMAN, JJ.
   The judgment of sentence is affirmed.


text:
    464 A.2d 517
    Commonwealth v. Dobe, Appellant.
    Petition for Allowance of Appeal Denied Dec. 14, 1983.
    Submitted May 11, 1983.
    Dale William Miller, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    464 A.2d 517
    Commonwealth v. Edrington, Appellant.
    Submitted March 16, 1983.
    Basil G. Russin, Chief Public Defender, for appellant; Robert J. Gillespie, Jr., District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., ROWLEY and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    464 A.2d 517
    Commonwealth v. Emory, Appellant.
    Submitted March 22, 1983.
    Clayton R. Wilcox, Assistant Public Defender, for appellant; Roy Alan Keefer, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., CIRILLO and HOFFMAN, JJ.
   Order affirmed.


text:
    464 A.2d 518
    Commonwealth v. Heberlig, Appellant.
    Petition for Allowance of Appeal Denied Nov. 16, 1983.
    Argued December 7, 1982.
    Neil Lawrence Albert, for appellant; Joseph C. Madenspacher, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   Judgment of sentence and order affirmed.


text:
    464 A.2d 518
    Commonwealth v. Hebling, Appellant.
    Submitted April 28, 1983.
    Dennis G. Kuftic, for appellant; Mark Richmond, Assistant District Attorney, for Commonwealth,' appellee.
    Before ROWLEY, POPOVICH and HOFFMAN, JJ.
   Judgment of sentence is affirmed.


text:
    464 A.2d 518
    Commonwealth v. Holley, Appellant.
    Jeffrey E.W. Matthew, for- appellant; Leslie Sudock, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, McEWEN and MONTGOMERY, JJ.
   Affirmed.


text:
    464 A.2d 519
    Commonwealth v. Jacobs, Appellant.

      Submitted March 15, 1983.
    Edward V. Schulgen, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., ROWLEY and CIRILLO, JJ.
   Order affirmed.


text:
    464 A.2d 519
    Commonwealth v. Johnson, Appellant.
    Petition for Allowance of Appeal Denied Jan. 16, 1984.
    Submitted May 25, 1983.
    Gary V. Skiba, for appellant; Michael J. Veshecco, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and CIRILLO, JJ.
   Order affirmed.


text:
    464 A.2d 519
    Commonwealth v. Jordan, Appellant.
    Petition for Allowance of Appeal Denied Jan. 16, 1984.

      Argued January 19, 1983.
    Michael James Reed, for appellant; Lee Ruslander, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    464 A.2d 519
    Commonwealth v. Julius, Appellant.
    Submitted June 2, 1983.
    Stanley P. Stern, for appellant; Michael Clarke, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and BECK, JJ.
   Judgment of sentence affirmed.


text:
    464 A.2d 520
    Commonwealth v. MacKay, Appellant.
    Petition for Allowance of Appeal Denied Nov. 11, 1983.
    Submitted February 15, 1983.
    Douglas M. Johnson, Public Defender, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCÓNE, P.J., JOHNSON and MONTEMURO, JJ.
   The judgment of sentence of the lower court is affirmed.


text:
    464 A.2d 520
    Commonwealth v. McDaniel, Appellant.
    Submitted April 28, 1983.
    Timothy A. Crawford, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    464 A.2d 520
    Commonwealth v. McNeal, Appellant.
    Submitted June 1, 1983.
    Leslie Levi Payton, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.

      Before ROWLEY, WIEAND and BECK, JJ.
   Order affirmed.


text:
    464 A.2d 520
    Commonwealth v. Moll, Appellant.
    Submitted April 26, 1983.
    Arnold Dranoff, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and POPOVICH, JJ.
   Judgment of sentence affirmed.

POPOVICH, J. filed a memorandum dissenting statement.


text:
    465 A.2d 702
    Commonwealth v. Morgan, Appellant.
    Reargument Denied Oct. 3, 1983.
    Petition for Allowance of Appeal Denied Feb. 8, 1984.
    Submitted March 23, 1983.
    Alan Ellis, for appellant; Michael Johnston, District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., CIRILLO and HOFFMAN, JJ.
   Order affirmed.


text:
    464 A.2d 521
    Commonwealth v. Morris, Appellant.
    Submitted September 9, 1981.
    Richard J. Conn, for appellant; Sarah Vandenbraak, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., HESTER and McEWEN, JJ.
   Judgment of sentence of the lower court is affirmed.


text:
    464 A.2d 521
    Commonwealth v. Preston, Jr., Appellant.
    Petition for Allowance of Appeal Denied Nov. 4, 1983.
    Submitted May 24, 1983.
    David G. Metinko, Assistant Public Defender, for appellant; Melinda G. Tell, Assistant District Attorney, for Commonwealth, appellee.

      Before CAVANAUGH, ROWLEY and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    464 A.2d 521
    Commonwealth v. Romanoff, Appellant.
    Submitted January 19, 1983.
    Marsha Neifield, Assistant Public Defender, for appellant; Michael J. Kane, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    464 A.2d 522
    Commonwealth v. Stewart, Appellant.
    Petition for Allowance of Appeal Denied Nov. 16, 1983.
    Submitted January 19, 1983.
    Charles P. Mirarchi, III, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    464 A.2d 522
    Commonwealth v. Stoica, Appellant.
    Petition for Allowance of Appeal Denied Feb. 8, 1984.
    Submitted January 19, 1983.
    Leonard Rubin, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH,- ROWLEY and HOFFMAN, JJ.
   Order affirmed.


text:
    464 A.2d 522
    Commonwealth v. Straton, Appellant.
    Submitted February 15, 1983.
    Gilbert E. Toll, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., JOHNSON and MONTEMURO, JJ.
   The order of the lower court is affirmed.


text:
    464 A.2d 522
    Commonwealth v. Swiggett, Appellant.
    Submitted May 4, 1983.
    Elaine DeMasse, Assistant Public Defender, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, CIRILLO and HOFFMAN, JJ.
   Affirmed.'


text:
    464 A.2d 523
    Commonwealth v. Thompson, Appellant.
    Submitted December 6, 1982.
    John M. McAllister, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   Order affirmed.


text:
    464 A.2d 523
    Commonwealth v. Yates, Appellant.
    Petition for Allowance of Appeal Denied Nov. 4, 1983.

      Argued June 17, 1983.
    Morton Gordesky, for appellant; Dennis P. Cohen, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, McEWEN and WATKINS, JJ.
   The judgment of sentence of the learned Philadelphia County Common Pleas Court Judge James D. McCrudden is affirmed.


text:
    464 A.2d 523
    Commonwealth ex rel. Carr v. Carr. Appeal of Thomas Carr.
    Argued May 18, 1983.
    Robert Samuel McMichael, submitted a brief on behalf of appellant; Stuart B. Suss, Assistant District Attorney, for Commonwealth, participating party.
    Before HESTER, BROSKY and BECK, JJ.
   Order affirmed.


text:
    464 A.2d 524
    Commonwealth ex rel. Mock v. Malec, Appellant.

      Submitted May 25, 1983.
    Richard J. Federowicz, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Mock, appellee.
    Before CAVANAUGH, ROWLEY and CIRILLO, JJ.
   Judgment affirmed.


text:
    464 A.2d 524
    Cortez v. Cortez, Appellant.
    Submitted June 17, 1983.
    Arthur M. Lobel, for appellant; James F. Carney, for appellee.
    Before ROWLEY, McEWEN and WATKINS, JJ.
   The order of the learned and distinguished Judge Gregory G. Lagakos, based upon the notions expressed in the able and perceptive opinion he prepared prior to his death, is affirmed.


text:
    464 A.2d 524
    Ferrante v. Hub Mohawk, Inc. etc. Appeal of Treadway Companies, Inc.
    Petition for Allowance of Appeal Denied Jan. 17, 1984.

      Before JOHNSON, WATKINS and LIPEZ, JJ.
   Order affirmed.


text:
    464 A.2d 524
    Lederer, Appellant v. Lederer.
    Submitted April 14, 1983.
    Dennis J. Cogan, for appellant; Joseph J. Carlin, for appellee.
    Before HESTER, POPOVICH and HOFFMAN, JJ.
   Order affirmed.

HOFFMAN, J. did not participate in the consideration or decision of this case.


text:
    465 A.2d 702
    Maguire v. Maguire, Appellant.
    Reargument Denied Oct. 3, 1983.
    Petition for Allowance of Appeal Denied Feb. 17, 1984.
    Argued May 11, 1983.
    K.A. Maguire, appellant, in propria persona; Emanuel A. Bertin, for appellee. ^

      Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.
   Affirmed.


text:
    Aug. 12, 1983.
    464 A.2d 525
    Bauer-Hall Enterprises v. G.T. Mamagement, Appellant.
    Argued April 14, 1983.
    J. Michael Ruttle, for appellant; William T. Renz, for appellee.
    Before HESTER, POPOVICH and HOFFMAN, JJ.
   Order affirmed.

POPOVICH, J. noted dissent.


text:
    464 A.2d 525
    Commonwealth v. Barbee, Appellant.
    Petition for Allowance of Appeal Denied Jan. 16, 1984.
    Argued May 18, 1983.
    Seymore Johnson, Jr., for appellant; Steven J. Cooperstein, Assistant District Attorney, for Commonwealth, appellee.

      Before HESTER, BROSKY and BECK, JJ.
   Judgment of sentence affirmed.


text:
    464 A.2d 525
    Commonwealth v. Blount, Appellant.
    Submitted December 6, 1979.
    John W. Packel, Chief, Appeals, Assistant Public Defender, for appellant; Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and EAGEN, JJ.

       Former Chief Justice Michael J. Eagen of the Supreme Court of Pennsylvania took no part in the consideration nor decision of this case.

   Judgment of sentence affirmed.


text:
    464 A.2d 526
    Commonwealth v. Bradford, Appellant.
    Petition for Allowance of Appeal Denied Jan. 16, 1984.
    Submitted March 17, 1983.
    Burton A. Rose, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.

      Before CERCONE, P.J., ROWLEY and CIRILLO, JJ.
   The order of the PCHA court is affirmed.


text:
    464 A.2d 526
    Commonwealth v. Brindley, Appellant. Commonwealth v. Lennox, Appellant.
    Argued May 3, 1983.
    Frank J. Marcone, for appellants; Dennis C. McAndrews, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., McEWEN and HOFFMAN, JJ.
   The judgments of sentence of the learned Delaware County Common Pleas Court Judge Melvin G. Levy are affirmed.


text:
    464 A.2d 526
    Commonwealth v. Brooks, Appellant.
    Submitted-January 20, 1983.
    Peter T. Campana, for appellant; Kenneth D. Brown, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    464 A.2d 526
    Commonwealth v. Butler, Appellant.
    Petition for Allowance of Appeal Denied Nov. 16, 1983.
    Submitted April 14, 1983.
    Norris E. Gelman, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, POPOVICH and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    464 A.2d 527
    Commonwealth v. Campbell, Appellant.
    Submitted February 24, 1982.
    Michael Alan Klimpl, for appellant; Michael J. Kane, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   The judgment of sentence upon the charge of prohibited offensive weapon is reversed and that charge is dismissed. The judgment of sentence of the distinguished Judge Arthur B. Walsh is in all other respects affirmed.


text:
    464 A.2d 527.
    Commonwealth v. Faire a/k/a Terry, Appellant.
    Argued January 20, 1983.
    David M. DelPizzo, Assistant Public Defender, for appellant; J. William Ditter, III, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    464 A.2d 527
    Commonwealth v. Fareri, Appellant.
    Submitted June 15, 1983.
    David Lionel Pollack, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., McEWEN and HOFFMAN, JJ.
   The judgment of sentence of the learned Philadelphia County Common Pleas Court Judge Stanley L. Kubacki is. affirmed.


text:
    464 A.2d 528
    Commonwealth v. Frazier, Appellant.
    Petition for Allowance of Appeal Denied Jan. 20, 1984.
    Submitted June 2, 1983.
    Kenneth L. Mirsky, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and BECK, JJ.
   Judgment of sentence affirmed.


text:
    464 A.2d 528
    Commonwealth v. Frazier, Appellant.
    Argued February 23, 1982.
    Samuel C. Stretton, for appellant; Nancy Dena Wasser, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   The judgment of sentence of the learned Philadelphia County Common Pleas Court Judge Angelo A. Guarino is affirmed.


text:
    464 A.2d 528
    Commonwealth v. Fredericks, Appellant.
    Submitted September 14, 1982.
    Warren D. Utermahlen, for appellant; Steven R. Guccini, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., McEWEN and HOFFMAN, JJ.
   The judgment of sentence of the learned Pike County President Judge Harold A. Thomson, Jr. is affirmed.

HOFFMAN, J. concurred in the result.


text:
    464 A.2d 529
    Commonwealth v. Griffin, Appellant.
    Submitted February 1, 1983.
    Jonathan Ganz, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, McEWEN and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    464 A.2d 529
    Commonwealth v. Johnson, Appellant.
    Submitted May 20, 1983.
    Cynthia C. Martelli, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, BROSKY and BECK, JJ.
   Judgment of sentence affirmed.


text:
    464 A.2d 529
    Commonwealth v. Jordan, Appellant.
    Submitted February 4, 1983.
    Charles B. Swigart, for appellant; Stewart L. Kurtz, District Attorney, for Commonwealth, appellee.
    Before WIEAND, McEWEN and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    464 A.2d 529
    Commonwealth v. Kohler, Appellant.

      Argued January 18, 1983.
    David M. McGlaughlin, for appellant; Peter McKay Hileman, Assistant District Attorney and Michael J. Kane, District Attorney, for Commonwealth, appellee; Gail Leslie Fairman, Assistant District Attorney, submitted a brief on behalf of Commonwealth, appellee.
    Before SPAETH, ROWLEY and HOFFMAN, JJ.
   -Judgment of sentence affirmed.

SPAETH, J. concurred in the result.


text:
    464 A.2d 530
    Commonwealth v. Krieg, Appellant
    Submitted March 24, 1983.
    Ferris Peter Webby, Assistant Public Defender, for appellant; Joseph Giebus, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    464 A.2d 530
    Commonwealth v. MacKenzie, Appellant.
    Petition for Allowance of Appeal Denied Nov. 8, 1983.

      Submitted March 23, 1983.
    Daniel Paul Alva, for appellant; Joseph A. Smyth, District Attorney, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   Judgment of sentence is affirmed.


text:
    464 A.2d 530
    Commonwealth v. Murphy, Appellant.
    Petition for Allowance of Appeal Denied Nov. 14, 1983.
    Argued February 3, 1983.
    Gary R. Eqoville, Assistant Public Defender, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, McEWEN and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    464 A.2d 531
    Commonwealth v. Robinson, Appellant.
    Petition for Allowance of Appeal Denied Dec. 5, 1983.

      Argued May 31, 1983.
    Leon A. Mankowski, for appellant; Ann Lebowitz, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    464 A.2d 531
    Commonwealth v. Sexton, Appellant.
    Submitted March 17, 1983.
    Michael D. Fioretti, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., ROWLEY and CIRILLO, JJ.
   Judgment of sentence affirmed in part and vacated in part.


text:
    464 A.2d 531
    Commonwealth v. Smith, Appellant.
    Petition for Allowance of Appeal Denied Jan. 16, 1984.

      Argued March 24, 1983.
    Lawrence L. Newton, for appellant; Stewart L. Kurtz, District Attorney, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    464 A.2d 531
    Commonwealth v. Sparks, Jr., Appellant.
    Petition for Allowance of Appeal Denied Jan. 16, 1984.
    Argued February 8, 1983.
    Joseph W. Bullen, III, Assistant Public Defender, for appellant; Dennis C. McAndrews, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, CIRILLO and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    464 A.2d 532
    Commonwealth v. Valentine, Appellant.
    Argued February 10; 1983.
    Catherine Ann Porter, Assistant Public Defender, for appellant; J. Michael Kane, District Attorney, no appearance on behalf of Commonwealth, appellee.
    Before CAVANAUGH, BROSKY and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    466 A.2d 705
    Commonwealth v. Zimmerman, Appellant.
    Reargument Denied Oct. 21, 1983.
    Petition for Allowance of Appeal Denied Feb. 27, 1984.
    Argued May 24, 1983.
    Leonard G. Ambrose, III, for appellant; Michael L. Cauley, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    464 A.2d 532
    Cunningham, Appellant v. Brown, et al.
    Appeal Granted and Judgment Reversed Dec. 29, 1983.
    Submitted May 3, 1983.
    Nino V. Tinari, for appellant; Francis M. Milone, for appellees.

      Before CERCONE, P.J., McEWEN and MONTGOMERY, JJ.
   The order of the learned Philadelphia County Common Pleas Court Judge Stanley M. Greenberg is affirmed.


text:
    464 A.2d 532
    Dyer, Appellant v. Dyer.
    Petition for Allowance of Appeal Denied Feb. 3, 1984.
    Argued June 15, 1983.
    Peter Dyer, appellant, in propria persona; Judith S. Eden, for appellee.
    Before CERCONE, P.J., McEWEN and HOFFMAN, JJ.
   Order affirmed.


text:
    464 A.2d 533
    Eibeschitz, Appellant v. Harleysville Ins.
    Argued April 13, 1983.
    Albert Dragon, for appellant; Michael P. McKenna, for Harleysville, appellee; Allan Molotsky, for U.S. Fidelity, appellees.
    Before HESTER, CAVANAUGH and POPOVICH, JJ.
   Order affirmed.


text:
    464 A.2d 533
    In Re Goble. Appeal of Lackawanna County Children and Youth Services.
    Argued March 16, 1983.
    George Houck, for appellant; Sylvia Hope Hahn, submitted a brief on behalf of appellee; James E. O’Brien, Jr., Assistant Public Defender, for participating parties.
    Before CERCONE, P.J., ROWLEY and CIRILLO, JJ.
   Order affirmed.


text:
    464 A.2d 533
    Massimino, Appellant v. Arena, M.D., etc.
    Argued May 25, 1983.
    Mark B. Aronson, for appellant; Edward Davies Klym, submitted a brief on behalf of appellees.
    Before CAVANAUGH, ROWLEY and CIRILLO, JJ.
   Judgment affirmed.


text:
    464 A.2d 533
    Rea, et al., Appellants v. Schmocker.
    Argued November 9, 1982.
    Edward B. Friedman, for appellants; Richard J. Mills, for appellees.
    Before CAVANAUGH, ROWLEY and MONTGOMERY, JJ.
   Judgment affirmed.


text:
    464 A.2d 534
    Rogers v. Billings, Appellant.
    Argued April. 6, 1983.
    H.P. Billings, appellant, in propria persona; Harry C. Rogers, appellee, in propria persona.
    Before SPAETH, WIEAND and HOFFMAN, JJ.
   Order affirmed.


text:
    464 A.2d 534
    Verdi, Appellant v. Liberty Mutual Ins.
    Petition for Allowance of Appeal Denied Dec. 14, 1983.

      Argued March 24, 1983.
    Jonathan Wheeler, for appellant; William C. Foster, for appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   The order of January 14, 1981 is affirmed.


text:
    464 A.2d 534
    Wecht v. Colville, et al. Appeal of Tom Foerster, Cyril H. Wecht, M.D., J.D., and William R. Hunt, M.D.
    Argued March 31, 1983.
    Bert M.- Moldovan, Assistant County Solicitor, for appellants; Robert L. Eberhardt, Deputy District Attorney, for Colville, appellee; Charles W. Johns, for Dauer, appellee; John H. Bingler, Jr., for Doe, appellee.
    Before SPAETH, CAVANAUGH and ROWLEY, JJ.
   Order affirmed.

SPAETH, J., filed a memorandum concurring statement.


author: HOFFMAN, Judge:

text:
    464 A.2d 487
    Corrie WARREN, Sr., Appellant v. RELIANCE INSURANCE COMPANY. Maria MASSARO, Appellant v. STATE FARM INSURANCE COMPANY. Rita PITROLI, Appellant v. STATE FARM INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued March 28, 1983.
    Filed Aug. 12, 1983.
    Petition for Allowance of Appeal Denied Dec. 19, 1983.

      Allen L. Feingold, Philadelphia, for Warren, appellant.
    Francis T. Flannery, Philadelphia, for Massaro, appellant.
    Morris H. Zuber, Philadelphia, for Pitroli, appellant.
    Alan R. Kutner, Philadelphia, for Reliance, appellee.
    Frederick E. Smith, Philadelphia, for State Farm, appellee.
    Before CERCONE, P.J., and SPAETH, BROSKY, ROW-LEY, McEWEN, HOFFMAN and VAN der VOORT, JJ.
   HOFFMAN, Judge:

These appeals were argued before this Court en banc to determine the appropriate statute of limitations under the No-fault Motor Vehicle Insurance Act (No-fault Act) for actions brought against assigned claims obligors. We find that once a claimant files a timely claim with the Assigned Claims Bureau, he is entitled to written notification of rejection by the assigned obligor and then at least sixty days in which to bring an action. A claimant must, in any event, however, bring the action within four years of the accident even if written notice has not yet been received.

I.

In Warren v. Reliance Insurance Co., and the consolidated appeals of Massaro v. State Farm Insurance Co. and Pitroli v. State Farm Insurance Co., each claimant, after receiving no benefits, brought an action against his/her assigned claims obligor. Each action was dismissed by the lower court as barred by § 106(c)(1) of the No-fault statute of limitations. Section 106(c)(1), the general statute of limitations for No-fault claims, provides:

If no fault benefits have not been paid for loss arising otherwise than from death, an action therefor may be commenced not later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier.

40 P.S. § 1009.106(c)(1). Section 106(c)(4), a special time limitation for assigned claims cases, states that:

Except as paragraph (1), (2), or (3) prescribes a longer period, an action by a claimant on an assigned claim which has been timely presented in accordance with the provisions of section 108(c) of this act may not be commenced more than sixty days after the claimant receives written notice of the rejection of the claim by the restoration obligor to which it was assigned.

40 P.S. § 1009.106(c)(4) (emphasis added). We interpret § 106(c)(4) as controlling where the general statute of limitations provided in paragraph (1), (2) or (3) has already run its course before written notification of a denial of benefits is given. This interpretation is best explained through example. If a claimant properly requests benefits through the Assigned Claims Plan, pursuant to § 108(c), and receives written rejection six months after the accident, § 106(c)(1) entitles the claimant to eighteen months in which to bring an action. Thus, because “paragraph (1) ... prescribe^] a longer period,” section 106(c)(4)’s sixty day extension has not been triggered. However, if the claimant, in compliance with § 108(c), files the claim within the two years provided in § 106(c)(1) but receives written rejection in the twenty-third month after the accident, section 106(c)(1) would not prescribe a longer period and thus 106(c)(4)’s sixty day extension would permit an action in the twenty-fifth month. Similarly, if a timely filed claim was rejected in writing at the conclusion of or after the two year period established in § 106(c)(1), § 106(c)(4) provides an additional sixty days in which to bring an action.

The final step in our analysis is the time period within which an action must be brought if the initial two-year statute of limitations has run and no written notification of rejection has been provided by the assigned claims obligor. First, we note that while the No-fault Act requires a claimant to bring an action within sixty days of receipt of written notice, nowhere does it require that a claimant receive written notice before filing an action in court. Although an obligor “shall give to the claimant written notice of the rejection promptly, but in no event more than thirty days after receipt of reasonable proof of the loss,” 40 P.S. § 1009.106(a)(5) (emphasis added), that section in no way indicates that an assigned claims plan claimant must have written notice to sue for benefits. If written notice was required for suit, insurers need only procrastinate in giving notice until the appropriate statute of limitations had run against the claimant. Such a result would defeat the purposes of the Act. See 40 P.S. § 1009.102. Similarly unreasonable would be a statute of limitations giving the claimant sixty days past written notification no matter how many years past the accident that notice was received. This would be akin to providing those claimants with a cause of action against which no statute of limitations could run.

We turn, therefore, to Sachritz v. Pennsylvania National Mutual Casualty Insurance Co., 500 Pa. 167, 455 A.2d 101 (1982), where our Supreme Court concluded that “the legislature has provided comprehensive statutes of limitations on traditional tort actions for personal injuries under our law, including survival actions and actions for wrongful death.” Id., 500 Pa. at 168, 455 A.2d at 102. The Court rejected the use of the standard six-year statute of limitations for contract actions in favor of provisions particular to the No-fault Act. See id., 500 Pa. at 177, 455 A.2d at 104 (Court’s rejection of contract analysis employed in Wright v. Allstate Insurance Co., 271 Pa.Superior Ct. 559, 414 A.2d 395 (1979)). Sachritz suggests that we impose a statute of limitations by looking to the context of the No-fault Act rather than to other traditional time limitations. Section 106(c)(1) provides an outside limit of four years after an accident in which to bring a suit. Section 106(c)(2) contains the same limitation for survivor’s benefits. Essential, therefore, to the formulation of an appropriate limitation for assigned claims is the four-year outside limitation for any action brought by a claimant who has not received benefits. We find it both reasonable and consistent with the No-fault Act, to limit the time of an action against an assigned claims obligor, by a claimant who has neither received notification of available benefits, nor written notification of rejection, to four years after the accident. This does not, however, enlarge the time for filing an action for claimants who receive written notification of denial within the four years. And a claimant receiving written rejection one day short of four years has only one day in which to file. The four-year limitation applies merely to those claimants who timely filed for assigned claims benefits pursuant to § 108(c), and who never received benefits or written notice of their denial.

We recognize that this interpretation of the statute places a burden on plaintiffs to bring actions even though they lack a definitive rejection notice, but it does afford them reasonable time in which to bring an action for benefits if the assigned claims obligor delays action on the claim for an extended period of time. We therefore determine that extrapolation of the outside time limitation from § 106(c)(1) to 106(c)(4) is an appropriate manner in which to satisfy Sachritz and to make the entire No-fault statute of limitations scheme consistent.

Accordingly, we hold that after a claimant has timely filed for benefits for loss arising otherwise than from death with the Assigned Claims Plan, has received no benefits but has received written rejection, he has two years from the date of the loss or sixty days after notice, whichever is longer, in which to bring an action. The action must be brought, however, no later than four years after the accident. When written rejection has not been received, a claimant must commence an action within four years of the accident.

II.

Having determined the appropriate statutory scheme, we must now examine the instant appeals.

A.

In Warren v. Reliance Insurance Co., appellant was injured in an automobile accident on July 10, 1976 and sought recovery under the No-fault Act. On November 9, 1977, appellant notified the Pennsylvania Assigned Claims Plan of his claim for benefits and filed a completed application on January 13, 1978. On July 10, 1980, appellant sued appellee, his assigned obligor under the plan, to recover loss benefits appellee had purportedly failed to pay. Appellee filed preliminary objections alleging that the statute of limitations in the No-fault Act barred appellant’s claim. On January 27, 1981, the lower court sustained appellee’s preliminary objections and dismissed the complaint. This appeal followed.

Appellant’s application for Basic Loss Benefits made to appellee indicates that he suffered lost wages beginning on the date of the accident. Appellant notified the Assigned Claims Plan of his loss on November 9, 1977, well within the time limit prescribed for notification in 40 P.S. § 1009.-108(c). The record, however, does not indicate on what date appellant was given written notification, if any, of the denial of benefits. When written notification was received is a question of fact which must be decided by the lower court before the preliminary objections may be properly determined. See Pa.R.Civ.P. 1028(b) (“The court shall determine promptly all preliminary objections. If an issue of fact is raised the court shall take evidence by depositions or otherwise.”)

Accordingly, we must remand the matter for an evidentiary hearing and decision consistent with this opinion.

B.

The facts in Massaro v. State Farm Insurance Co., are as follows: Appellant was injured in an automobile accident while driving her uninsured vehicle on January 25, 1977. On February 27, 1978, Massaro applied for basic loss benefits with the Assigned Claims Plan and one month later was notified that State Farm was to be her designated obligor. After State Farm received her medical bill, the claim was not paid. On September 1, 1978, appellant’s attorney was notified that the claim was being held, pending receipt of appellant’s Blue Cross-Blue Shield claim. Appellant filed suit on January 17, 1980, after receiving no benefits from State Farm. The lower court dismissed the action as being barred by the statute of limitations in § 106(c)(1). This appeal followed.

We must first determine whether appellant received written notice of rejection as required by § 106(c)(4). If State Farm’s letter to appellant’s attorney requesting the Blue Cross-Blue Shield information constituted written notice, then we must calculate sixty days after that date to determine if the action was timely. However, if the written notice requirements were not met then the four year statute established herein will be implemented. See 40 P.S. § 1009.106(a)(5) (requirements for notice), n. 1, supra. Patricial McKenna, an employee at State Farm, testified that in denying regular no-fault claims, State Farm uses words similar to, “payment is being respectfully denied.” (N.T. July 22, 1980 at 19). She stated that she viewed no correspondence in this case with words similar to that, id., and testified that on September 1, 1978, she requested certain Blue Cross-Blue Shield information from appellant’s counsel.

On 3/8/78, I wrote you requesting an affidavit of no insurance and also requested the identity of any health medical provider. To date I have not received this. However, the bills submitted indicate Miss Massaro has Blue Cross, Blue Shield. As you are aware, we are secondary to any other health medical plan. At this time, kindly forward, one, affidavit; two, copy of Blue Cross, Blue Shield I.D. card; three, copies of all Blue Cross, Blue Shield payments and/or rejection Statements. As you are aware, all bills must be submitted to the primary provider.

Id. at 11. We do not find that this letter, claimed by State Farm to be written notice of rejection, “specifies the reason for such rejection.” 40 P.S. § 1009.106(a)(5). Rather than outright rejection of appellant’s claim, this letter merely denotes the nature of State Farm’s obligation. See, 40 P.S. 1009.203.

Because no written notice of rejection was received and the action was brought on January 17, 1980, three years after the January, 1977 accident, appellant’s action was taken well within the four year statute of limitations set forth above. Because the lower court erred in dismissing the action, we must reverse and remand for trial.

C.

The circumstances of the accident and the pertinent dates in Pitroli v. State Farm Insurance Co. are identical to those in Massaro. Pitroli was injured when a passenger in Massaro’s car. In fact, counsel for both appellant and appellee have filed the same brief in each case and have twice relied on the testimony of Patricia McKenna to debate the receipt of written notification of rejection. Therefore, the analysis and result outlined in the Massaro claim is expressly applied to and adopted in the Pitroli appeal. Accordingly, because the statute of limitations does not bar Pitroli’s action, we reverse and remand for trial.

III.

Appeal at No. 284 Philadelphia, 1981 (J. 578/83) is hereby reversed and remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

Appeals at Nos. 1282 Philadelphia, 1981 and 1283 Philadelphia, 1981 (J. 579/83) are hereby reversed and remanded for trial.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq.

        . Providers of basic loss insurance are statutorily required to establish and maintain an assigned claims plan to provide benefits for persons whose basic loss insurance:
      (A) is not applicable to the injury for a reason other than those specified in the provisions on ineligible claimants;
      (B) is not applicable to the injury because the victim converted a motor vehicle while he was under fifteen years of age;
      (C) applicable to the injury cannot be identified;
      (D) applicable to the injury is inadequate to provide the contracted-for benefits because of financial inability of the obligor to fulfill its obligations; or

        (E) benefits are refused by an obligor for a reason other than that the individual is not entitled in accordance with the act to receive the basic loss benefits claimed.
      40 Pa.C.S.A. § 1009.108.

      . Written notification of rejection shall "specify the reason for such rejection and inform the claimant of the terms and conditions of his right to obtain an attorney.” 40 P.S. § 1009.106(a)(5).

      . Section 1009.108(c) requires that:
      an individual authorized to obtain basic loss benefits through the assigned claims plan shall notify the assigned claims bureau of his claim within the time that would have been allowed pursuant to section 106(c) of this act for commencing an action for basic loss benefits against any obligor, other than an assigned claims bureau, in any case in which identifiable no-fault insurance coverage was in effect and applicable to the claim.

        See 40 P.S. § 1009.106(c)(1), supra.

      . The six-year outside limitation in § 106(c)(2) may be distinguished from the four-year limitations as the language contemplates an ongoing contractual relationship between obligor and claimant where some benefits have already been provided. In the claims at issue and in those that will, in the future, follow the limitations period established herein, no benefits have been or will be provided before the initial action. If claims have been paid for loss arising otherwise than from death, actions for further benefits must be brought within two years of the last payment. See 40 P.S. § 1009.106(c)(1).

      . Depending on when a claimant knows or should know of a loss, § 106(c)(1) and § 108(c)(1) provide two or four years in which to file a claim with the Assigned Claims Bureau. Where the four year limit we have established will unfairly terminate a claimant’s statutory right to bring an action otherwise permitted under § 106(c)(4), however, we find that pursuant to § 106(c), a claimant who timely files a claim, including reasonable proof of loss, may bring an action after the four year period, but is entitled to no more than the time required for the Assigned Claims Bureau to deliver the claim to the assigned obligor, plus thirty days time for the obligor to file notice of rejection or acceptance (§ 106(a)(5)), plus sixty days in which to file an action against the obligor (§ 106(c)(4)). For example, if a claimant learns of his loss three years and eleven months after the accident and timely files his claim within the final month, he is entitled to the amount of time described above in bringing an action for benefits.

      . This interpretation of § 106, however, conflicts with the decision of our panel in Williams v. Keystone Insurance Co., 302 Pa. Superior Ct. 44, 448 A.2d 86 (1982). Williams maintained that “a cause of action against an insurance carrier for failing to pay a claim which was assigned to it under the assigned claims plan does not accrue until the alleged breach of the carrier's statutory duty to pay such a claim occurs.” Id., 302 Pa.Superior Ct. at 50, 448 A.2d at 89. In so stating, Williams held pursuant to § 106(c)(1) that when an assigned claim is refused, the statute of limitations is two years after notice of the refusal. If Williams were to control in determining the statute of limitations for assigned claims actions, § 106(c)(4) (permitting an action up to sixty days after denial of benefits), would be read entirely out of the No-fault Act, because a claimant could always have two additional years under § 106(c)(1). We do not think the legislature could have intended that result and feel constrained to overrule the part of Williams that establishes a statute of limitations for assigned claims without regard for § 106(c)(4). See 1 Pa.C.S.A. § 1922(2) ("General Assembly intends the entire statute to be effective and certain.”).

      . State Farm alleges in its brief that “The claims ... were denied by State Farm because ... State Farm had evidence that [appellant’s] bills were paid by another health care insurer____" (Appellee’s brief at 1) (emphasis added).

      . Appellant Massaro alleges the applicability of § 106(c)(3) that provides:
      If timely action for basic restoration benefits is commenced against an obligor and benefits are denied because of a determination that the obligor’s coverage is not applicable to the claimant under the provisions of section 204 of this act, an action against the applicable obligor or the obligor to whom a claim is assigned under an assigned claims plan may be commenced not later than sixty days after the determination becomes final or the last date on which the action could otherwise have been commenced, whichever is later.
      40 P.S. § 1009.106(c)(3). Reliance on this section is misplaced. Section 106(c)(3) is to be employed after an action has been brought and a court makes a final determination that the claimant must seek benefits from another source under § 1009.204. Here, the parties have had no such final determination made by a court.


text:
    464 A.2d 493
    In re ADOPTION OF M.T.M. and K.J.M. Appeal of M.M.
    Superior Court of Pennsylvania.
    Argued June 15, 1983.
    Filed Aug. 12, 1983.

      Edgar R. Einhorn, Philadelphia, for appellant.
    Donald E. Wydrzynski, Media, for appellees.
    Before CERCONE, President Judge, and McEWEN and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in involuntarily terminating his parental rights. Because the lower court applied a preponderance of the evidence standard of proof, we reverse and remand for reconsideration under the higher burden of proof required by Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).

Appellant and appellee, E.S., the parents of two children, separated in 1978, at which time appellee B.S. moved in with E.S. and her two children. During the next 8-9 months appellant visited the children at least once per month and voluntarily provided child support. In April, 1979, E.S. informed appellant that she did not want him to visit the children or provide for their support. She allegedly told appellant that if he visited, she would phone the police. For the next two years, during which the divorce was finalized and appellees married, appellant had no contact with his children. Appellees filed their petition to terminate appellant’s parental rights in September, 1981. The lower court granted their petition on November 2, 1981, prompting this appeal.

When a party has petitioned for the termination of another’s parental rights, the burden of proof must be no less than clear and convincing evidence. Santosky v. Kramer, supra. Our court recently held that cases not finalized on appeal when Santosky was decided must be remanded for reconsideration under the more exacting burden of proof. In re: Adoption of M.E.T., 313 Pa.Superior Ct. 316, 459 A.2d 1247 (1983).

Accordingly, because an erroneous standard was employed, we reverse and remand for an evaluation of the evidence under a clear and convincing standard.

Reversed and remanded. Jurisdiction not retained.

      . Although the lower court did not mention the standard of proof employed, appellant’s rights were terminated prior to Santosky when the Commonwealth required proof of abandonment only by a preponderance of the evidence.

      . In accordance with In re: Adoption of M.E.T., 313 Pa.Superior Ct. 316, 459 A.2d 1247 (1983), the lower court shall, after hearing argument, determine whether the evidence must be brought up to date in a new evidentiary hearing, or whether the evidence is sufficient and must be reconsidered under the clear and convincing standard.