author: TAMILIA, Judge:

text:
    512 A.2d 22
    COMMONWEALTH of Pennsylvania, v. Ronald RILEY, Appellant.
    Superior Court of Pennsylvania.
    Argued May 20, 1986.
    Filed July 2, 1986.

      Patricia A. Wenger, Harrisburg, for appellant.
    Yvonne A. Okonieski, Assistant District Attorney, Harrisburg, for Com., appellee.
    Before: CIRILLO, President Judge, and TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

Appellant appeals from the judgment of sentence of six to twelve years imprisonment for rape with a consecutive term of three to six years imprisonment for burglary imposed on November 21, 1985 following his jury convictions on June 26, 1985.

Appellant presents only one issue for our review, that is, whether the court erred in permitting an acquaintance of the victim to act as her interpreter during the trial. He does not allege the testimony was inaccurate nor has he pointed to any specific resultant prejudice.

A careful review of the briefs, record and trial court Opinion reveals overwhelming evidence against the appellant. Shortly after police received reports from two persons that a tall black man was entering, via a fire escape, a third-floor window of an apartment building, police arrived at the victim’s apartment and found appellant, literally, with his pants down and on top of the victim, Ms. Choe. Ms. Choe is an elderly Korean woman, unable to speak English, thus the necessity of an interpreter.

Appellant alleges judicial error in permitting Ms. Barbara Pak to act as a Korean interpreter for Ms. Choe because it was the first time she had interpreted in court and because she was an acquaintance of the victim. We disagree and agree with the trial court that Ms. Pak was well-qualified to perform her assigned duties. As indicated in the court’s Opinion;

... She was born in Korea and came to the United States as a student and has lived in the United States for about twenty years. Ms. Pak attended Methodist College in Nashville, Tennessee and West Virginia University. She has a master’s degree in social work. She is currently registered as an interpreter with the federal courts. Ms. Pak and the victim, Ms. Choe, attend the same church but Ms. Pak stated that she has never met socially with Ms. Choe outside the church. Ms. Pak indicated that she understood that by taking the oath administered by the court, she was swearing to interpret exactly what Ms. Choe said. (N.T. 6)

(Slip Op. p. 2)

“... [T]he decision to use an interpreter in a trial setting rests in the sound discretion of the judge presiding over the case.” Commonwealth v. Carillo, 319 Pa.Super. 115, 465 A.2d 1256, 1262 (1983) citing Commonwealth v. Pana, 469 Pa. 43, 364 A.2d 895 (1976). Our Court, in Carillo (the case specifically dealing with defendant who did not speak, read or write English), carefully considered the issue of interpreters on a broad scale referring to an A.L.R. annotation as well as a statement made by the Tenth Circuit Court of Appeals. Quoting from Carillo:

As is collected at Annotation: Disqualification, for Bias, of One Offered as Interpreter of Testimony, 6 A.L.R.4th 158, the author therein remarks:

Numerous cases have contained language in one way or another lending support to the generality that it is at least better practice to appoint a disinterested person as interpreter____ However, a substantial number of cases have recognized that it is at least not necessarily reversible error to appoint a relative or friend of a witness or party to interpret especially where no other competent interpreter is available.
* * ‡ * * *
Cases throughout the annotation, frequently applying the broadly recognized principle that the appointment of an interpreter rests in the wise discretion of the trial court whose judgment may not be overturned unless abused, or finding an absence of prejudice in the circumstances, have held that no reversible error was committed, by trial courts who appointed as interpreters of non-English speaking witnesses (1) a friend or relative of a witness or victim in a criminal case, ..(2) ...; and (3) a law enforcement officer or other governmental official to interpret for a prosecution witness in a criminal case,____

Id. at § 2[a]. Accord Wharton’s Criminal Evidence § 404 (13th Ed.1972).

We find that on the subject of impartial and unbiased interpreters the position consistently adhered to by most courts, although stated in different terms, is reflected in the statement made by the Tenth Circuit Court of Appeals:

While in the nature of things, a disinterested interpreter is essential to an impartial interpretation of a witness’ testimony, at the same time the trial court is necessarily accorded a wide discretion in determining the fitness of the person called, and the exercise of that discretion will not be disturbed on review in the absence of some evidence from which prejudice can be inferred. (Citations omitted)
Additionally, as is germane to the case at bar, it has been stated unequivocally that “rulings on the appointment and qualifications of interpreters do not reach constitutional proportions. See Fairbanks v. Cowan, 6 Cir., 551 F.2d 97, 99. Whatever problems there may be with the testimony of [an interpreter] go to the sufficiency of the evidence.” ... Soap v. Carter, 632 F.2d 872, 874-75 (10th Cir.1980), cert. denied, 451 U.S. 939, 101 S.Ct. 2021, 68 L.Ed.2d 327 (1981).

Carillo, 319 Pa.Superior Ct. at 129-31, 465 A.2d at 1263-64. (Emphasis added)

Our independent review of this case has revealed no specific prejudice which might have inured to the appellant through the use of Ms. Pak as an interpreter for the victim. Even though it may be preferable to use an interpreter unaquainted with the witness, case law has not shown it to be a requirement. In this case, regardless, Ms. Pak was no more than an acquaintance of Ms. Choe, the two sharing only the same church affiliation.

Appellant makes much of the hostility expressed by the interpreter to questions by defense counsel prior to jury selection. Specifically, the questions related to how long Ms. Choe lived in Korea and intentionally touched on her age. Her retort was “Why is that important?” and “... I’m only here as an interpreter and I’m not here to be tried.” (N.T. 6/24/85 p. 7) From these responses one may infer that the interpreter was sensitive about her age but it cannot be taken to mean that she was biased against the defendant and would not report truthfully what was said to her by the victim.

The discretion of the trial judge in passing on the competence and qualifications of the interpreter cannot be set aside on such tenuous allegations. We, therefore, find no error in the selection of the interpreter. Further, there was sufficient evidence presented by the police officers who caught appellant “in the act” and through medical records to establish that penetration had, in fact, occurred. (N.T. 6/24/85 pp. 56, 71, 82, 127-133).

Taken together with the testimony of the victim, through her interpreter, we find there was sufficient evidence to find appellant guilty of rape in addition to burglary.

Judgment of sentence affirmed.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    512 A.2d 24
    Belinda PATRICK, v. CHEROKEE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 12, 1985.
    Filed July 11, 1986.

      Jerry L. Cohen, Philadelphia, for appellant.
    Gary S. Dion, Philadelphia, for appellee.
    Before ROWLEY, DEL SOLE and BECK, JJ.
   BECK, Judge:

This is an appeal from a trial court order denying appellant’s Petition to Vacate Award of Arbitrators. Appellant Cherokee Insurance Company (“Cherokee”) contends that the arbitrators’ award and the trial court’s order in favor of the appellee-plaintiff were based on an error of law. We disagree, and therefore affirm.

Appellee Belinda Patrick was injured on July 22, 1981, when she was involved in a collision with an uninsured motorist while riding as a passenger in a taxicab owned and operated by Yellow Cab Company of Philadelphia (“Yellow Cab”). Yellow Cab is a common carrier authorized to carry passengers for hire within Pennsylvania. At the time the cause of action arose, Yellow Cab was insured under a policy of automobile insurance issued by appellant Cherokee. Included in the policy of insurance was an unsigned document, or endorsement, entitled “Rejection of Uninsured Motorist Coverage” (“Rejection Endorsement”). The endorsement stated that although a space for the insured’s signature was provided, no signature was required to reject uninsured motorist coverage if the endorsement was issued before the effective date of the policy.

An arbitration hearing was held on May 24,1983, in order to determine Patrick’s claim against Cherokee under the Uninsured Motorist Act (“Act”), Act of August 14, 1963, P.L. 909, § 1, as amended, 40 P.S. § 2000. The arbitrators rendered a unanimous award of $20,000.00 for Patrick. Cherokee then filed its Petition to Vacate Award of Arbitrators on the ground that the arbitrators had disregarded the Rejection Endorsement, and had thereby committed an error of law. The trial court denied Cherokee’s petition and this appeal followed.

The standard of review in this case is governed by Section 7302(d)(2) of the Uniform Arbitration Act (“1980 Act”) which provides as follows:

Where this paragraph is applicable a court in reviewing an arbitration award pursuant to this subchapter shall, notwithstanding any other provision ... modify or correct the award where the award is contrary to law and is such that had it been a verdict of a jury the court would have entered a different judgment or a judgment notwithstanding the verdict.

42 Pa.C.S.A. § 7302(d)(2) (emphasis added).

The arbitration hearing was conducted pursuant to the Arbitration Act of 1927, P.L. 381, as amended 5 P.S. § 161 et seq. Nonetheless, we are bound by the provisions of the 1980 Act. See 42 Pa.C.S.A. § 7302(a). It is important to note that the Arbitration Act of 1927 was repealed by the JARA Continuation Act of 1980, Act of October 5, 1980, P.L. 693, No. 142 § 501(c), effective in 60 days. Obdyke v. Harleysville Mutual Insurance Co., 299 Pa.Super. 298, 300 n. 1, 445 A.2d 763, 765 n. 1 (1982). Consequently, we must rely on the provisions of Section 7302(d)(2) of the 1980 Act to guide us. See Martin v. State Automobile Insurance Association, 344 Pa.Super. 531, 537, 496 A.2d 1233, 1236 (1985); see also Pasternak v. State Farm Mutual Automobile Insurance Co., 350 Pa.Super. 448, 504 A.2d 925 (1986).

Cherokee argues that the trial court erred in holding as a matter of law that the Rejection Endorsement contained in Yellow Cab’s policy was insufficient to relieve the insurance company of the responsibility of providing uninsured motorist benefits to appellee. The Uninsured Motorist Act (“Act”) allows common carriers to reject uninsured motorist coverage in certain limited circumstances:

(a) No motor vehicle liability policy of insurance ... shall be ... issued ... unless coverage is provided ... for the protection of persons insured thereunder who are legally entitled to recover damages from ... operators of uninsured motor vehicles because of bodily injury, ... Provided that’.
(2) An ... operator of any ... motor vehicle operated for the carriage of passengers for hire ... shall have the right to reject such coverage in writing in which event, such coverage need not be provided____

40 P.S. § 2000(a)(2) (emphasis added).

The question before us then is whether the Rejection Endorsement provided by the insurer Cherokee meets the statute’s requirement of a rejection “in writing” of Yellow Cab’s uninsured motorist coverage. We hold that the endorsement did not comply with the statute.

In its opinion, the lower court cited the case of Modesta v. SEPTA, 503 Pa. 437, 469 A.2d 1019 (1983), for the proposition that if an insured common carrier executed a written rejection in accordance with the dictates of 40 P.S. § 2000(a)(2), it would assume the burden of providing uninsured motorist benefits to its passengers. In light of our holding that there was no rejection in the case sub judice, we need not consider the question of the common carrier’s responsibility for uninsured motorist coverage in a case where a written rejection was made in compliance with the statute’s requirements.

The Act is clearly based on public policy considerations. Its purpose is “to afford financial recompense to persons who receive injuries ... solely through the negligence of motorists, who, because they are uninsured ... cannot be made to satisfy a judgment.” Johnson v. Concord Mutual Insurance Co., 450 Pa. 614, 619, 300 A.2d 61, 64 (1973) (citation omitted). Because of its public policy concerns, the Act must be broadly and liberally construed to enable it to achieve its purpose. Id., 450 Pa. at 619, 300 A.2d at 64; Novoseller v. Royal Globe Insurance Co., 317 Pa.Super. 217, 463 A.2d 1163 (1983); Boyle v. State Farm Mut. Auto. Ins. Co., 310 Pa.Super. 10, 21, 456 A.2d 156, 162 (1983). Conversely, the rejection provisions detract from the public policy considerations, and must therefore be narrowly and strictly construed. Johnson, 450 Pa. at 619, 300 A.2d at 64. As a result, the Act provides a presumption of coverage unless equally strong legal or equitable considerations to the contrary are present. Boyle, 310 Pa.Super. at 21, 456 A.2d at 162; Sands v. Granite Mutual Insurance Co., 232 Pa.Super. 70, 80, 331 A.2d 711, 716-17 (1974).

The presumption of coverage requires a court to construe ambiguous language in insurance contracts in a manner most favorable to the insured. See Patton v. Patton, 413 Pa. 566, 198 A.2d 578 (1964); State Farm Insurance Co. v. Bullock, 316 Pa.Super. 475, 463 A.2d 463 (1983); Boyle, 310 Pa.Super. at 21, 456 A.2d at 162. Our Supreme Court has therefore stated that in order to be effective, a waiver of uninsured motorist coverage must

manifes[t] the intentional relinquishment of this legislatively granted right of insurance protection____ [TJhere must be a clear, unequivocal and decisive act of the party with knowledge of such right and an evident purpose to surrender it.
... The statutory mandate may be complied with only by including uninsured motorist coverage or by an affirmatively expressed rejection in writing by the insured.

Johnson, 450 Pa. at 620, 300 A.2d at 64-65 (citations omitted) (emphasis added); Sands, 232 Pa.Super. at 80, 331 A.2d at 717.

In Johnson, the insurer’s printed form contained a single line which read: “I HEREBY STATE THAT I DO NOT DESIRE UNINSURED MOTORIST COVERAGE.” The claimed waiver was subscribed by the insured. Despite the insured’s signature, the court held that the rejection was ineffective because the form did not contain language which clearly and specifically apprised the insured of the nature of the right he was relinquishing. Moreover, the record failed to reveal any testimony concerning the signing of the form which suggested that the insured knowingly and affirmatively rejected uninsured motorist coverage. 450 Pa. at 621, 300 A.2d at 621.

The Rejection Endorsement at issue manifests no intention by Yellow Cab to relinquish uninsured motorist insurance. The unsigned document states simply: “This endorsement cancels your Protection Against Uninsured Motorists Endorsement. All other terms of the policy remain the same.” A line is then provided for the insured’s signature under the statement “I agree to the provisions of this endorsement.” A note at the bottom of the page states that a signature is not always required. Nothing on the face of the Rejection Endorsement or in the record indicates that the insured affirmatively rejected uninsured motorist coverage.

Clearly, appellant Cherokee has failed to show an unequivocal and decisive act by Yellow Cab which demonstrates an evident purpose to waive its right to uninsured motorist coverage. See, e.g., Sands, 232 Pa.Super. at 80, 331 A.2d at 717. We therefore conclude that the trial court properly held that the Rejection Endorsement does not constitute an affirmatively expressed rejection in writing which relieves Cherokee of its responsibility to provide either uninsured motorist coverage to Yellow Cab or uninsured motorist benefits to the appellee.

Accordingly, the order below is affirmed.

      . A review of the historical note following § 7302 reveals under the heading “Application”:
      Section 501(b) of Act 1980, Oct. 5, P.L. 693 No. 142, provides as follows:
      The provisions of 42 Pa.C.S. § 7302(d)(2) (relating to special application) shall be applicable to any nonjudicial arbitration pursuant to:

        (2) An agreement heretofore or hereafter made which expressly provides for arbitration pursuant to the former provisions of the Act of April 25, 1927 (P.L. 381, No. 248) relating to statutory arbitration.

      . We recognize that appellant Cherokee petitioned the lower court to vacate the award rather than modify or correct it. Under Section 7314 of the 1980 Act, a court’s power to vacate an award may not be exercised on the grounds that the award is contrary to law. The power to enter the equivalent of a judgment notwithstanding the verdict is provided as part of the power to modify or correct an award under Section 7302(d)(2). Compare § 7314, 42 Pa.C.S.A. § 7314, with § 7302(d)(2), 42 Pa.C.S.A. § 7302(d)(2). Thus, Cherokee should have petitioned to modify or correct the award, instead of petitioning to vacate it. See Pasternak, 350 Pa.Super. at 452, 504 A.2d at 927. However, inasmuch as it is clear from the contents of Cherokee's petition that Cherokee was asking the trial court to enter a judgment n.o.v., we shall consider Cherokee’s petition as a petition to modify or correct the arbitrators’ award pursuant to 42 Pa.C.S.A. § 7302(d)(2).

      . Appellant Cherokee correctly distinguishes Modesta from the case at hand. Modesta, which overruled Johnson v. Yellow Cab Co., 456 Pa. 256, 317 A.2d 245 (1974), held that a self-insured common carrier must provide uninsured motorist coverage, and did not address the issue of rejection of such coverage by an insured common carrier.


author: WIEAND, Judge:

text:
    512 A.2d 28
    Howard S. McKEE and Margaret D. McKee, Individually and as Parents and Natural Guardians of Cheryl Ann McKee, a minor, v. SOUTHEAST DELCO SCHOOL DISTRICT and Alfred B. Thomas, Inc., Individually and t/a Panda Van Lines, and Delaware County Intermediate Unit #25. Appeal of ALFRED B. THOMAS, INC., Individually and t/a Panda Van Lines.
    Superior Court of Pennsylvania.
    Argued April 9, 1986.
    Filed July 11, 1986.

      Walter J. Timby, Philadelphia, for appellant.
    Robert E. Slota, Bryn Mawr, for appellees.
    Before CIRILLO, President Judge, and ROWLEY and WIEAND, JJ.
   WIEAND, Judge:

In this action to recover damages for personal injuries sustained by a six year old child who was thrown from her seat when the school van in which she was riding stopped suddenly, the trial court set aside a defense verdict and granted a new trial because it had excluded evidence that the operator of the van failed to use available seat belts to restrain the child. From the order granting a new trial, the owner of the school van has appealed. We affirm.

On October 4, 1978, six year old Cheryl Ann McKee was a passenger in a school van owned by Alfred B. Thomas, Inc. Cheryl was seated in the center of the row of seats behind the driver, so that she was situated to the rear of the console located aside of the driver’s seat. While en route to the Harris Elementary School in Media, Delaware County, the driver of the van was forced to stop suddenly in order to avoid collision with a vehicle which had pulled out in front of the van. When the van came to a stop, Cheryl was lying on the floor, near the console, with injuries to her mouth and jaw.

Cheryl’s parents brought an action against the owner of the van in their own right and on behalf of their daughter to recover for the injuries which Cheryl had sustained. A jury trial resulted in a verdict in favor of the defendant. The trial court granted a motion for new trial because it concluded that error had occurred when evidence was excluded that available seat belts had not been used to restrain Cheryl.

Most decisions involving the admissibility of evidence regarding the non-use of available seat belts have been cases in which the evidence was being offered to show contributory negligence of an injured plaintiff. A majority of the courts considering this issue have held that a plaintiff’s non-use of an available seat belt is not admissible for the purpose of showing that the plaintiff was guilty of contributory negligence or for the purpose of mitigating damages. See generally: Annot., 92 A.L.R.3d 9 (1979); Annot., 80 A.L.R.3d 1033 (1977). These courts have generally held that, absent a statutory mandate, a person does not have a duty to use a seat belt. See: 92 A.L.R.3d at § 3[b]; 80 A.L.R.3d at § 4; Clarkson v. Wright, 108 Ill.2d 129, 90 Ill.Dec. 950, 483 N.E.2d 268 (1985). Other courts, however, have held that a failure to use an available seat belt, depending upon the circumstances and evidence presented, may be received as evidence of contributory negligence. These courts, at least implicitly, have held that there is a duty to- wear an available seat belt even in the absence of statutory mandate. See: 92 A.L.R.3d at § 5; 80 A.L.R.3d at § 3; Bentzler v. Braun, 34 Wis.2d 362, 149 N.W.2d 626 (1967); Spier v. Barker, 35 N.Y.2d 444, 363 N.Y.S.2d 916, 323 N.E.2d 164 (1974).

This issue , and the division of authority were recognized by the Superior Court in Parise v. Fehnel, 267 Pa.Super. 79, 406 A.2d 345 (1979). Because a resolution of the issue was not essential to the decision, however, the Court expressly cautioned, “[o]ur decision today should not be seen as foreclosing the possibility of a so-called seat belt defense in future cases.” Id., 267 Pa.Superior Ct. at 82, 406 A.2d at 347. In Parise, the plaintiff had been injured when, as a result of a collision, she was thrown forward in such a manner that her chest hit the steering wheel and her knees hit the dashboard. The evidence was that she had failed to use an available seat belt. The defendant requested a jury instruction that a failure to use the seat belt could be considered in determining the amount of damages which he should be required to pay. The trial court refused the requested instruction because the defendant had failed to offer medical or other evidence to show in what manner the plaintiffs injuries would have been lessened if the available restraint had been used. The Superior Court affirmed, holding that in the absence of such evidence, “to have granted [the defendant’s] requested point for charge would have been an invitation to the jury to engage in ‘pure speculation on a very material point.’ ” Id., 267 Pa.Superior Ct. at 81, 406 A.2d at 346.

Under the facts of the instant case, a jury could have found that the operator of the school van had a duty to restrain Cheryl and other children in the van by using available seat belts. The plaintiff-appellees offered to show that the school district had instructed the defendant-appellant that children riding in its vans were to be restrained by seat belts. They also offered to show that appellant had caused instructions to be given to its drivers that seat belts were to be utilized. Moreover, it is by now common knowledge that seat belts are an effective safeguard against injury to occupants of motor vehicles. A failure to restrain the children who were passengers in the school van, therefore, could have been found by the jury to be a breach of the operator’s duty to exercise care to protect the children from injury. We agree with the trial judge that it was error to disallow evidence of this very significant circumstance.

Appellant argues, however, that the evidence was properly excluded because the plaintiff-appellees failed to show by medical testimony that the absence of restraint had contributed causally to Cheryl’s injuries. We disagree. Here, there was no collision; the school van fortunately was brought to a stop without striking the car which had pulled out in front of it. The plaintiffs’ contention at trial, therefore, was not that Cheryl’s injuries had been exacerbated by the failure to use restraints but that they had been caused in toto by such failure. Plaintiffs contended that it had been the failure to use available seat belts which had caused Cheryl to be hurled from her seat into the console, with resulting injuries. Under these circumstances, the admissibility of evidence that available seat belts had not been used was not impaired by the absence of expert testimony regarding the effect of such failure on the minor plaintiff’s injuries. Contrary to the argument advanced by appellant, the decision in Parise v. Fehnel, supra, does not hold otherwise. Expert testimony, under the facts of the case sub judice, was not essential to the cause of action advanced by the plaintiff-appellants that their daughter had been injured because she had not been properly restrained. See: McNeil v. Yellow Cab Co., 85 Cal.App.3d 116, 147 Cal.Rptr. 733 (1978) (expert testimony not essential to prove that plaintiff’s injuries were caused by non-use of seat belts where plaintiff passenger had been seated in rear sitting in the seat of taxi and had been thrown forward and injured when taxi was involved in collision). See also: Reardon v. Meehan, 424 Pa. 460, 227 A.2d 667 (1967) (no need for expert testimony if jury is capable of comprehending the facts and drawing correct conclusions from them); Burns v. City of Philadelphia, 350 Pa.Super. 615, 504 A.2d 1321 (1986) (same); Kubit v. Russ, 287 Pa.Super. 28, 429 A.2d 703 (1981) (same); Lebesco v. Southeastern Pennsylvania Transportation Authority, 251 Pa.Super. 415, 380 A.2d 848 (1977) (same).

The order granting a new trial is affirmed.

      . The original action also named as defendants the Southeast Delco School District and the Delaware County Intermediate Unit # 25, but the action was subsequently dismissed against these defendants, and they are not involved in the present appeal.


text:
    512 A.2d 30
    Mary E. FETTERHOFF, Appellant, v. Mary S. FETTERHOFF and Inclinator Co. of America v. POLYCLINIC MEDICAL CENTER.
    Superior Court of Pennsylvania.
    Submitted May 20, 1986.
    Filed July 7, 1986.

      Richard L. Kearns, Harrisburg, for appellant.
    Thomas J. Williams, III, Carlisle, for Fetterhoff, appellee.
    Steven D. Snyder, Harrisburg, for inclinator, appellee.
    Charles W. Craven, Philadelphia, for Polyclinic, appellee.
    Before CIRILLO, President Judge, and TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

This is an appeal from the August 4, 1985 Order entered by the Court of Common Pleas of Dauphin County granting summary judgment in favor of defendant/appellee, Inclinator Company of America. Plaintiff/appellant filed suit against appellee after sustaining injuries when she fell into an elevator shaft at her family home on October 16, 1982. Appellant’s case against appellee was premised on theories of negligence and strict liability. Appellee was the designer, manufacturer and installer of the elevator which was placed in the home during July of 1952.

Appellee filed a motion for summary judgment based upon 42 Pa.C.S.A. § 5536 which provides for a twelve-year statute of repose. The lower court denied the motion but subsequently granted appellee’s petition for reconsideration. A hearing was held and appellee’s motion for summary judgment was granted. This appeal followed.

Appellant now contends that a designer-manufacturer-installer, who maintains an improvement to real property and performs repair work thereon throughout the life of the improvement, does not fall within the scope of 42 Pa.C.S.A. § 5536(a). Appellant argues that since appellee was periodically called upon to maintain and repair the elevator, it cannot be afforded the protection of the statute of repose.

The statute in question, 42 Pa.C.S.A. § 5536(a), provides in pertinent part:

... a civil action or proceeding brought against any person lawfully performing or furnishing the design, planning, supervision, or observation of construction, or construction of any improvement to real property must be commenced within 12 years after completion of construction of such improvement to recover damages for:
(3) Injury to the person or for wrongful death arising out of any ... deficiency [in the design, planning, supervision or observation of construction or construction of the improvement].

We first note it is an undisputed fact that construction of the elevator shaft in appellant’s home was completed in 1952. The twelve-year period begins to run when the entire construction project is so far completed that it can be used by the general public. Catanzaro v. Wasco Products, Inc., 339 Pa.Super. 481, 489 A.2d 262 (1985). Appellant was injured and filed suit nearly thirty years after construction was completed. Likewise, there is no doubt that an elevator shaft is an improvement to real property. Mitchell v. United Elevator Co., 290 Pa.Super. 476, 434 A.2d 1243 (1981). Appellant, however, argues that her cause of action is protected by section 5536(b)(2), which provides that the twelve-year limitation “shall not be asserted by way of defense by a person in actual possession or control, as owner, tenant or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury or wrongful death____”

Appellant maintains that since appellee periodically made repairs to the elevator, it never relinquished control and thus section 5536(b)(2) is applicable.

We must disagree. Appellee never had “actual possession or control” of the elevator “as owner, tenant or otherwise” either at the time of the improvement or after installation, and only performed maintenance and repair work when summoned by appellant’s family. Appellee had no contract to service or maintain the elevator; repair work could have been done by any company of appellant’s choice. Therefore, appellee had no obligation whatsoever to inspect or repair the elevator in the absence of a request by the owners. While it is conceivable that a designer, manufacturer or installer could retain ample control over an improvement so as to trigger the section 5536(b)(2) exception (such as a manufacturer installing elevators in its own building), not even a scintilla of control has been demonstrated here.

It is without question that 42 Pa.C.S.A. § 5536(a) applies to the person who designs and constructs an improvement during the twelve year period in which liability can be imposed. Since this is a statute of repose, the liability is extinguished upon passage of the twelve years and it is a non-waivable right, contrary to a statute of limitations, which is waived, if not alleged, in a responsive pleading. Mitchell, supra.

The statute in section 5536(b)(2) goes on to carve out an exception to the extinguishing effect of section 5536(a) as to “a person in actual possession or control, as owner, tenant, or otherwise, of such an improvement” at the time it caused the harm complained of. Since Inclinator designed and constructed the improvement and was not in possession as owner or tenant at the time of the accident, it is insulated from liability unless it can be construed to be liable under the one remaining designation “or otherwise”.

Applying the principles of statutory construction to section 5536(b)(2), it is clear that they do not come within the designated category. In interpreting the meaning of a general word following particular words, the general term is restricted by the preceding particular words; 1 Pa.C.S.A. § 1903(b) Words and phrases:

b) General words shall be construed to take their meaning and be restricted by preceding particular words.

Upon application, we find that the particular words are possession or control, as owner, tenant or otherwise. The word otherwise is preceded by particular terms of possession, control, owner, tenant, all of which can note a possessory interest. Inclinator’s involvement as the maintenance firm cannot be construed to imbue it with such an interest. To hold otherwise would require that a designer-installer with intermittent contact with the improvement, have responsibility when the duty to maintain was that of the owner. The control of which the statute speaks is a possessory interest which carries with it the duty to maintain.

In Piekarski v. Club Overlook Estates, Inc., 281 Pa.Super. 162, 421 A.2d 1198 (1980), this Court held that transfer of an improvement by a developer to a municipality provided a defense under section 5536(b)(2) to liability despite the fact that the developer continued ownership through which the improvement (drainage gully) passed. The facts in Piekarski were dissimilar to those in the present case, but the analysis of the application of section 5536(b)(2) (previously 12 P.S. § 65.4) to those facts will aid us in our disposition. Club Overlook, a cross-appellant in that case, “had designed a road system with a drainage system attached to the roads” (421 A.2d at 1211). Subsequent to its design and construction of the system, Club Overlook dedicated the road and drainage system to Penn Township while retaining control over the hillside in which the drainage gully was located. Since the accident occurred on March 14, 1973 (head on collision between two vehicles resulting in the death of Piekarski, appellee’s decedent), and the road and drainage system were dedicated by Overlook and accepted by the Township in 1956, more than twelve years had elapsed between the time of the dedication and the accident. The accident was attributable to water on the road due to an overload of the drainage system. While this Court held that there might be liability by Overlook as an adjacent owner, there could not be liability for negligence in the design or construction of the road and drainage system. Once the dedication to Penn Township occurred, section 5536(b)(2) did not apply as it denies protection only to a party that retains possession or control of an improvement. With the continued control and possession, and only then, would continuing responsibility for the design defect continue beyond the twelve year period of the statute.

Therefore, we find that appellee, as designer, manufacturer and installer of the elevator, unquestionably falls within the scope of the statute and appellant’s claim is time-barred. Similarly, in Catanzaro, supra, we found that a personal injury action, brought against the manufacturer of a skylight by a laborer who fell through the skylight, was barred by the twelve-year period of limitations in 42 Pa.C.S.A. § 5536 where school construction was completed in 1961 and the personal injury claim was not filed until July of 1981.

Appellant further argues that each visit made by appellee in the thirty-year period revitalized the twelve-year limitations, and that their failure to correct the defect during this period rendered the improvement incomplete. In a large measure, we have already addressed this issue but would only add that the arrangements, to periodically service the improvement, cannot be enlarged to extending the design and construction period for over thirty years. Much as the dedication of the improvement to the Township, in Piekarski, served to fix the date for activation of the statute of repose, despite continuing involvement by Overlook with the supporting property, so does the date of delivery of the improvement to appellants, despite periodic maintenance thereafter, serve to fix the date actuating the statute here.

Appellant also raises the issue that 42 Pa.C.S.A. § 5536 is unconstitutional because its application would “insulate an injured plaintiff from the bar of justice, ...” (appellant’s brief at p. 11). This issue has been waived inasmuch as no notice of the constitutional issue was given to the Attorney General as is required by Pa.R.A.P. 521(a). See Sitarik v. Civil Service Commission, 76 Pa.Cmwlth. 29, 462 A.2d 966 (1983).

Accordingly, the Order of the lower court granting summary judgment is affirmed.

Order affirmed.

JUDGMENT

ON CONSIDERATION WHEREOF, it is now hereby ordered and adjudged by this Court that the Order of the Court of Common Pleas of Dauphin County is affirmed.


author: BROSKY, Judge: WICKERSHAM, Judge,

text:
    512 A.2d 34
    COMMONWEALTH of Pennsylvania, v. Daniel Rae BARTLOW, Appellant.
    Superior Court of Pennsylvania.
    Argued April 21, 1986.
    Filed July 10, 1986.

      Beth G. Williams, Towanda, for appellant.
    Albert C. Ondrey, Assistant District Attorney, Greens-burg, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and WATKINS, JJ.
   BROSKY, Judge:

This appeal is from judgment of sentence imposed for Aggravated Assault and Burglary. Appellant raises four sentencing issues for our review. In one of those issues it is argued that the sentencing court erred in considering appellant’s prior convictions as an aggravating circumstance, since that factor was already involved in the computation of his prior record score under the Sentencing Guidelines. We agree and, accordingly, vacate judgment of sentence and remand to resentencing.

At sentencing the court stated: “The Court also notes that the defendant has a history of several serious offenses, specifically, first degree felonies.” The sentence then imposed by the court was beyond the aggravated range of the Sentencing Guidelines, although within the statutory maximum. Appellant contends that the sentencing court erred in considering a factor already given play through the computation of the prior record score in the Sentencing Guidelines.

The Sentencing Commission made clear that “sentences should not be aggravated or mitigated for circumstances incorporated in other provisions of the Guidelines, such as ... prior record.” Sentencing Guideline Implementation Manual, 15.

This point was recognized in an opinion of this Court, Commonwealth v. Drumgoole, 341 Pa.Super. 468, 491 A.2d 1352 (1985).

The trial court’s first reason for deviating from the guidelines is that the appellee lacked a prior record____ Moreover, the guidelines- inherently give credit to those who have led a relatively law-abiding life. An accused’s prior record, or lack thereof, is one of the two elements utilized in determining the guideline sentence ranges. The guideline sentence as computed in this case is based on a prior record score of zero (0). Thus, to assign the lack of, or even a minimal, prior record as a reason for deviating from the guidelines is to, in effect, give an accused credit for the same factor twice. Such an evaluation is error.

Commonwealth v. Drumgoole, supra, 341 Pa.Superior Ct. at 475, 491 A.2d at 1355.

Commonwealth v. Mills, 344 Pa.Super. 200, 496 A.2d 752 (1985) involved the converse of Drumgoole and the sitúation sub judice: the imposition of a sentence in excess of the aggravated range indicated by the sentencing guidelines due to a number of prior convictions. Appellant’s argument in Mills was the same as the one instantly before us:

He contends that, in reality, the only reason given by the sentencing court was that appellant had had seven prior convictions for burglary. This, he argues, demonstrated an erroneous application of the guidelines and an unreasonable departure therefrom.

Commonwealth v. Mills, supra, 344 Pa.Superior Ct. at 202, 496 A.2d at 753.

The facts on which that argument was rejected in Mills, are not, however, present here.

We reject appellant’s argument. The reasons given by the sentencing court for imposing the maximum sentence authorized for burglary entailed a great deal more than the fact of seven prior convictions for burglary.

Id.

In a note distinguishing Drumgoole, the Mills Court wrote:

A court is not required to follow the guidelines where, as here, the defendant’s prior record permits a court to infer that he is an incurable recidivist, that prior rehabilitative efforts have been unsuccessful, and that the defendant has become a threat to law-abiding citizens. Drumgoole does not hold otherwise.

Id. at n. 2.

The requisite inferences detailed in Mills were not made of record by the sentencing court in the instant case. A minimal appearance of fairness requires that if, (as the Sentencing Guidelines and Drumgoole require), an absence of criminal record cannot be a mitigating factor; then, (as the Sentencing Guidelines also require), a heavy criminal record cannot be an aggravating factor — at least in the absence of the enunciated findings noted in Drumgoole.

Judgment of sentence is vacated and the case remanded for resentencing. Jurisdiction is relinquished.

WICKERSHAM, J., files a dissenting statement.

JUDGMENT

ON CONSIDERATION WHEREOF, it is now hereby ordered and adjudged by this Court that the Judgment of the Court of Common Pleas of Bradford County is vacated and the case remanded for resentencing. Jurisdiction is relinquished.

WICKERSHAM, Judge,

dissenting.

I would affirm the judgment of sentence.

      . Those issues are, first, that a resentencing violated double jeopardy. The opinion of the trial court adequately treats this issue and no further comment is necessary in this opinion. Second, appellant contends that inadequate reasons were given for the sentence imposed. Upon review of the record, we find this issue to be without merit. The third issue is the subject of the greater part of this opinion, and warrants vacating judgment of sentence. Finally, appellant argues that the consideration of his juvenile adjudications was in error. That issue is presently being considered by this Court en banc. On remand for resentencing, the sentencing court should be guided by our disposition of that issue.

        . We also note that, unlike Mills, the only aggravating circumstances considered by the sentencing court in this case was appellant’s prior conviction. In Commonwealth v. Stevens, 349 Pa.Super. 310, 314, 503 A.2d 14, 16 (1986), this Court distinguished Mills on this basis and held that where "the court below relied solely on appellant’s prior record to impose a sentence outside of the sentencing guidelines for retail theft, that sentence must be vacated ...”


author: CAVANAUGH, Judge:

text:
    512 A.2d 36
    Elmer H. DRUM, Appellee, v. William J. LETA, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 10, 1986.
    Filed July 7, 1986.

      Ann S. Pepperman, Williamsport, for appellant.
    W. David Marcello, Williamsport, for appellee.
    Before CAVANAUGH, WATKINS and LIPEZ, JJ.
   CAVANAUGH, Judge:

This is an appeal from an order of the Court of Common Pleas of Lycoming County granting appellant’s petition to strike a confessed judgment entered against him, but denying appellant’s request for attorney’s fees. Appellant raises one issue on appeal. He contends that the lower court erred in ruling that he was not entitled to collect reasonable attorney’s fees. We agree, finding that an award of reasonable attorney’s fees is mandatory in this instance, where appellant has prevailed in causing a judgment by confession against him to be stricken, under 41 P.S. § 407(b). Accordingly, we reverse the portion of the order denying appellant attorney’s fees, and remand the matter to the lower court for a determination of reasonable fees to be awarded.

This action arose from appellant’s default on a loan agreement made between appellant as debtor and Powy’s Park Inn, Inc. as creditor. Two instruments were executed on February 15, 1983 pursuant to the loan, a security agreement and a bond. The security agreement granted appellee an interest in certain inventory and equipment of appellant. The loan was also evidenced by the $396,000.00 bond, which contained a confession of judgment clause, and secured by a mortgage on certain property of the appellant. Powy’s Park assigned all of its interest in the security agreement and bond to appellee, Elmer Drum.

Appellant stopped making scheduled loan payments in October of 1983. In late November, 1983, appellee instituted mortgage foreclosure proceedings on the mortgage securing the loan. He obtained a judgment against appellant, and bought the property at a sheriff’s sale. Appellee also brought a cause of action in replevin, while the mortgage foreclosure proceedings were pending, to obtain possession of the inventory and equipment in which he had a perfected security interest. Although an order for writ of seizure was issued by the lower court, no further action was taken because appellee failed to post the requisite bond. However, appellant did agree to a voluntary repossession of the collateral by appellee.

Meanwhile, appellee confessed judgment against appellant pursuant to the clause in the bond. He filed a judgment by confession with the prothonotary of Lycoming County on May 18, 1984, in the replevin action. Appellee then sought to enforce the judgment entered by confession by a writ of execution, and attempted to levy upon appellant’s residence. At that point, appellant filed a petition to strike or open the confessed judgment. Appellant asserted that the judgment by confession was entered improperly, as a result of appellee’s failure to comply with Pa.R.C.P. 2951, governing procedures to be followed in confessing judgment. For example, the original instrument upon which judgment was confessed was not filed, as required by Pa.R.C.P. 2951(c); no certificate of residence was filed, as required in Rule 2951(a); and no notice was given to appellant of the judgment by confession, until he was served with a sheriffs levy on his residence [Pa.R.C.P. Nos. 236 and 2958(f)].

In response to appellant’s petition, the lower court granted a rule to show cause why the judgment entered by confession should not be stricken or opened. Appellee did not file a response and the court granted appellant’s petition, ordering that the judgment be stricken, but denying attorney fees to appellant.

Appellant contends that he is entitled to attorney’s fees under 41 P.S. § 407(b). This statute states:

(b) Any debtor who prevails in any action to remove, suspend or enforce a judgment entered by confession shall be entitled to recover reasonable attorney’s fees and costs as determined by the court, (emphasis added)

This subsection is part of a statute governing the procedures to be followed in a confession of judgment pertaining to a creditor’s right to execute as to residential real property. Appellee’s attempt to execute judgment as to appellant’s residence makes this statute applicable. As such, it is important to examine the purpose behind the statute. It is apparent that the legislative scheme is to protect residential real estate owners from execution upon their property pursuant to arbitrary and capricious actions of creditors by confession of judgment. See, RCK Inc. v. Katz, 331 Pa.Super. 163, 480 A.2d 295 (1984). Moreover, the law does not favor confession of judgment provisions in general. “Because a warrant of attorney authorizing confession of judgment can be an oppressive weapon, a judgment entered pursuant thereto can be accomplished only by strict adherence to the provisions of the warrant of attorney.” (citations omitted) Langman v. Metropolitan Acceptance Corp., 318 Pa.Super. 381, 384, 465 A.2d 5, 7 (1983).

In light of this perspective, it follows that the legislature has established a provision in Section 407(b) wherein a debtor will be able to collect attorney’s fees and costs when he succeeds in removing a judgment executed by confession. Appellant asserts that, in consideration of the language used in Section 407(b), the recovery of attorney’s fees by the successful debtor is mandatory. However, the lower court interprets this language as making such an award discretionary with the court. We agree with appellant. The clear wording of the statute indicates that, when a debtor prevails in removing a judgment by confession, he shall be entitled to recover such fees and costs as determined by the court. This wording does not give the court discretion as to whether or not such fees and costs are recoverable, but only as to the amount, which must be reasonable. We believe that if the legislature intended this provision to make the awarding of fees discretionary with the court, it would have used the word may instead of shall. Thus we find that, in consideration of the legislature’s intent to protect residential real estate owners, Section 407(b) makes the recovery of attorney’s fees and costs by appellant mandatory.

While the lower court did not give its reasons for striking the judgment entered by confession, in its opinion the court alluded to the suggestion that appellee followed the wrong procedures in confessing judgment against appellant. For whatever reason, however, it is evident that appellant indeed prevailed in causing the judgment to be stricken; i.e. removed. Therefore, we find that appellant is entitled to the recovery of reasonable attorney’s fees in this instance.

Although there is a dearth of caselaw regarding the question of whether Section 407(b) is to be construed as mandatory, a recent decision by a panel of this court provides us with some guidance. In Gardner v. Clark, 349 Pa.Super. 297, 503 A.2d 8 (1986), Judge Wieand writing for the majority, held that the lower court properly awarded counsel fees to debtors who had prevailed under Section 407(b). In Gardner, the issues raised by appellant focused on whether or not the debtor had “prevailed” in removing or suspending a judgment by confession. The court noted that, in circumstances similar to the present matter, the legislature provides for an award of counsel fees under both section 407(b) and, 41 P.S. § 503; a more general section of the Act providing for mandatory recovery of such fees. Gardner, Id. 349 Pa.Super. at 301, 503 A.2d at 10.

For the foregoing reasons, we find that the lower court erred in denying an award of counsel fees to appellant. Accordingly, we reverse the order and remand to the lower court for a determination and award of reasonable attorney’s fees.

Reversed and remanded.

JUDGMENT

ON CONSIDERATION WHEREOF, it is now hereby ordered and adjudged by this Court that the Order of the Court of Common Pleas of Lycoming County is reversed and remanded.

      . Rule 2951. Methods of Proceeding
      (a) The prothonotary shall enter judgment by confession on a note, bond or other instrument confessing judgment or authorizing confession by an attorney at law or other person against the person who executed it in favor of the original holder or, unless expressly forbidden in the instrument, in favor of the assignee or other transferee, upon filing of the instrument and a certificate of residence of the plaintiff and of the defendant, without the agency of an attorney and without the filing of a complaint, for the amount which may appear to be due from the instrument. The judgment may include interest computable from the instrument.
      (b) If judgment by confession is authorized by the instrument but may not be entered by the prothonotary under subdivision (a), an action shall be commenced by filing with the prothonotary a complaint substantially in the form provided by Rule 2952. Even though the instrument is one on which judgment could be entered by the prothonotary under subdivision (a), the plaintiff may proceed under this subdivision.
      (c) The action must be brought under subdivision (b) if
      (1) the instrument is more than ten years old or
      (2) the original cannot be produced for filing or
      (3) it requires the occurrence of a default or condition precedent before judgment may be entered, the occurrence of which cannot be ascertained from the instrument itself, or
      (4) the computation of the amount due requires consideration of matters outside the instrument.

      . § 407. Confession of judgment
      (a) As to any residential real property, a plaintiff shall not have the right to levy, execute or garnish on the basis of any judgment or decree on confession, whether by amicable action or otherwise, or on a note, bond or other instrument in writing confessing judgment until plaintiff, utilizing such procedures as may be provided in the Pennsylvania Rules of Civil Procedure, files an appropriate action and proceeds to judgment or decree against defendant as in any original action. The judgment by confession shall be changed as may be appropriate by a judgment, order or decree entered by the court in the action. After the above mentioned original action has been prosecuted and a judgment obtained, that judgment shall merge with the confessed judgment and the confessed judgment shall be conformed as to amount and execution shall be had on the confessed judgment. The parties to the action shall have the same rights as parties to other original proceedings. Nothing in this act shall prohibit a residential mortgage lender from proceeding by action in mortgage foreclosure in lieu of judgment by confession if the residential mortgage lender so desires.


author: OLSZEWSKI, Judge:

text:
    512 A.2d 39
    COMMONWEALTH of Pennsylvania, v. Earl WORTHY, Appellant.
    Superior Court of Pennsylvania.
    Argued June 9, 1986.
    Filed July 17, 1986.

      Steven A. Morley, Philadelphia, for appellant.
    Elizabeth J. Chambers, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before ROWLEY, McEWEN and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence for direct criminal contempt. Appellant argues that his conduct at trial did not warrant such a finding, claiming instead that his words and actions were simply a by-product of zealous advocacy. Because we find no abuse of discretion, we affirm the lower court’s ruling.

Appellant, a pro se defendant, was held in contempt on three separate occasions during the second day of his trial regarding allegations of robbery and simple assault. The first contempt citation resulted from appellant’s conduct in refusing to wear civilian clothing, provided by the court, over his prison garb. The remaining citations resulted from appellant’s refusal to follow the court’s directions and for being argumentative during the interrogation of witnesses. The trial judge concluded that the three instances produced unnecessary delays which significantly disrupted the proceedings, thereby obstructing the administration of justice in violation of 42 Pa.C.S.A. Sec. 4131(2) and (3).

We find it is essential to the integrity and independence of judicial tribunals that they have the power to enforce their own judgment as to what conduct is compatible with the proper and orderly course of their procedure, Mack Appeal, 386 Pa. 251, 126 A.2d 679 (1956), cert. denied 352 U.S. 1002, 77 S.Ct. 559, 1 L.Ed.2d 547 (1957), and each court thus becomes the exclusive judge of contempts committed against its process. Accordingly, in considering an appeal from a contempt order, we place great reliance on the discretion of the trial judge. In re Grand Jury, April Term 1977, Wayne County, 251 Pa.Super. 43, 379 A.2d 323 (1977).

In the present case, appellant claims that his conduct was a result of zealous advocacy exercised during the course of trial. We have no doubt that enthusiasm is indeed expected of an attorney in representing his client (or, in this case, himself) and that singular remarks, later regrettable, are often a by-product of our adversarial judicial process. For that reason, single lapses in proper courtroom decorum, without more, have been held excusable and do not give rise to findings of contempt. See Matter of Campolongo, 495 Pa. 627, 435 A.2d 581 (1981) (single rhetorical question to judge); Commonwealth v. Rubright, 489 Pa. 356, 414 A.2d 106 (1980) (single impertinent question to judge).

Alternatively, we also recognize that an attorney is obligated to conduct himself within certain bounds, established by the court for the purpose of insuring a fair adjudication of the issues presented. When conduct exceeds those prescribed bounds, findings of contempt are justified. See Commonwealth v. Snyder, 443 Pa. 433, 275 A.2d 312 (1971) (defendant refused to behave in an orderly manner and interrupted the prosecutor’s closing argument); Commonwealth v. Falkenhan, 306 Pa.Super. 330, 452 A.2d 750 (1982) (defense attorney refused to recognize authority of the court and instructed client to stand mute).

Appellant had been forewarned that although he was proceeding under a pro se defense, he would be held to the same standard of propriety as attorneys, and that he would be held responsible for abiding by the court’s rulings and comporting, himself in accordance with established trial procedure. On one occasion, however, after the court directed the appellant to continue questioning a witness instead of belaboring points already established, appellant persisted undeterred, drawing admonishment from the bench and causing delay in the proceedings. Similarly, appellant’s initial refusal to don appropriate clothing provided by the court, and his subsequent removal of such clothing during the course of the trial, resulted in further delay and disruption.

Courts have the power to inflict summary contempt citations for the “misbehavior of any person in the presence of the court, thereby obstructing the administration of justice.” 42 Pa.C.S.A. Sec. 4131(8). While the “misbehavior” which gives rise to a contempt citation is incapable of precise definition, such a finding will be upheld if the evidence shows, beyond a reasonable doubt: (1) appellant’s misconduct in the presence of the court, (2) his intent to obstruct the administration of justice, and (3) actual obstruction. Commonwealth v. Reid, 494 Pa. 201, 431 A.2d 218 (1981). In Commonwealth v. Falkenhan, supra, we held that a similar claim of “zealous advocacy” necessarily gave way to a finding of contempt. In that case, the contemnor refused to follow the directions of the court in blatant disregard for the court’s authority, causing unnecessary delays which interfered with the process of the court. We find the conduct of appellant in the case at bar sufficiently analogous to justify the trial court’s ruling and, accordingly, we affirm its judgment.

      . 42 Pa.C.S.A. Sec. 4131.

      . Appellant received an aggregate sentence of 5 months and 29 days of imprisonment for the three contempt citations.

      . During the cross-examination of Michael Sturges, a Commonwealth witness, the following interchange occurred:
      The Court: He’s answered the question.
      Q. I said is it correct, yes or no?
      A. He’s—
      The Court: He’s answered the question. Proceed now on to the next point you want to make. He’s already answered those questions. Now proceed to the next point.
      Q. You said you saw these two people enter the ladies room, is that correct?
      The Court: He’s answered that question.
      Mr. Means: Objection, asked and answered.
      Q. Did you see these people enter the ladies room?
      The Court: He answered the question. Please proceed to the next question.
      Mr. Worthy: I have a right to cross-examine, your honor.
      The Court: You’ve got to follow the directions of the court and do not argue with the Court.
      Mr. Worthy: The Court is not affording me a fair trial.
      The Court: All right, come to the sidebar, you. Come here. (Sidebar on the record.)
      The Court: You’re fined five hundred dollars for talking back to the court and failing to follow the directions of the court. Five hundred dollars, and you’ve also got 29 days in jail. Now if that happens again, that’s going to accumulate some more. I warned you time and time again. Don’t smirk at me, act that way in the presence of the court. You will follow my instructions, comprehend?
      N.T. 10/15/85, 96-97.


author: McEWEN, Judge:

text:
    512 A.2d 41
    Jackson IMAN, Administrator of the Estate of Janice E. Iman, Deceased, Appellant, v. Clara HAUSMAN, Administratrix of the Estate of Richard D. Kibler, Deceased, Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 5, 1986.
    Filed July 17, 1986.

      James J. McCabe, Philadelphia, for appellant.
    Jeffrey R. Dimmich, Allentown, for appellee.
    Before WICKERSHAM, McEWEN and JOHNSON, JJ.
   McEWEN, Judge:

We here reverse the order granting summary judgment in favor of appellee Clara Hausman. The eminent hearing judge has accurately described the occurrence which underlies this litigation:

On June 17, 1981, Richard Kibler was driving a motor vehicle owned by Robert Stewart in which Janice Iman was a passenger. The said motor vehicle was proceeding north on Route 100/29 near Woodlawn Drive and Tollgate Road, Lehigh County, Pennsylvania, at an allegedly high rate of speed. Kibler lost control, left the highway and struck a tree resulting in the death of both Janice Iman and Kibler.

Robert Stewart, the owner of the vehicle involved, was insured by United States Insurance Group (hereinafter USIG). After negotiations with USIG, appellant executed a general release in favor of both Robert Stewart, the owner of the vehicle, and the Estate of Richard Kibler, releasing both Stewart and the Kibler Estate from all liability in consideration of the payment of the sum of $15,000, the amount of the liability limits of the insurance policy issued by USIG upon the Stewart vehicle. When appellant sought further counsel, that attorney discovered that Richard Ki-bler had been living with his grandmother, Clara Hausman, that the grandmother maintained an automobile insurance policy, and that coverage in the amount of $100,000/$300,-000 might be available under the omnibus clause of that policy. Appellant, therefore, commenced an action in trespass against the appellee estate which subsequently filed an amended answer and new matter, raising as a defense the release agreement of April 12, 1982, by which appellant had released both Robert Stewart and the Estate of Richard Kibler from all liability. Appellant in reply asserted (1) that the release had been executed under a mutual mistake as to the amount of insurance available at the time of execution of the release, and (2) that the release had been obtained through misrepresentation, namely, that at the time of the execution of the release it had been represented to appellant that the total amount of insurance available at that time was $15,000. The pleadings complete, appellee filed a motion for summary judgment.

The court granted the motion, after comparing the present issue of after discovered coverage to claims for after discovered injuries, and ruled that the instant release should not be set aside for the same reasons that a release may not be set aside due to after discovered injuries. As valid as this comparison may initially appear, we are, most respectfully, compelled to disagree with that rationale and the consequent ruling.

Our courts have proceeded to the summary rejection of after discovered injury claims by reason of the fact that the document of release which the claimant there seeks to void specifically provides that the claimant, in consideration of the payment of a stated sum, specifically releases the tortfeasor from any and all claims for any and all injuries suffered, whether known or unknown or discovered after execution of the release agreement. Thus, the possibility that the injuries might be more serious than realized at the time of the execution of the release agreement or the possibility that conditions may arise in the future as a result of the tort in question, are specifically covered by the bargain and agreement of release. The release that is the subject of this litigation, however, does not include any provision, term or language which specifically precludes or was intended to prevent, appellant from seeking a further recovery in the event that additional insurance coverage was available at the time of the release. Since, therefore, the factual bases, specifically the releases, are so dissimilar, we do not view the after discovered injury cases as controlling upon our review and disposition of this appeal.

The principle that a release is binding upon the parties thereto, unless executed under fraud, duress or mutual mistake, is firmly established. This Court, in Price v. Ross, 339 Pa.Super. 461, 489 A.2d 252 (1985), set aside the summary judgment because the pleadings raised the issue of mutual mistake on the part of both the plaintiff and the insurance company with regard to their failure to exclude the original defendant from the release agreement. We so ruled because the allegations contained in those pleadings, if proven at trial, would have constituted grounds on which appellant would have prevailed, and thus, the trial court had erred in rendering summary judgment in favor of appellee. Price, supra, 339 Pa.Superior Ct. at 464, 489 A.2d at 254. Appellant has here asserted the allegation of mutual mistake with regard to the amount of insurance coverage, and has further alleged that the release was obtained through misrepresentation. Both assertions present questions of fact. Thus, the instant motion for summary judgment should have been denied.

As this Court stated in McFadden v. American Oil Company, 215 Pa.Super. 44, 257 A.2d 283 (1969):

The quantum of evidentiary facts which must be adduced to preclude summary judgment is not the same as that required to set aside a release at trial; that is, at this stage his showing of fraud or mistake need not be “clear and convincing and indubitable.” This requirement could not obtain because on a motion for summary judgment the court merely determines whether there is a controverted issue of fact, not whether the evidence submitted is sufficient to prove the particular fact.

Id., 215 Pa.Superior Ct. at 55, 257 A.2d at 289; Cf. Evans v. Marks, 421 Pa. 146, 218 A.2d 802 (1966). Since appellant has alleged both misrepresentation and mutual mistake, as well as facts in support of both allegations, appellant has met the burden enunciated in McFadden, supra, and summary judgment should have been thereby denied. Accordingly, we reverse and remand to the learned trial court for proceedings consistent herewith.

Reversed and remanded. Jurisdiction relinquished.


author: LIPEZ, Judge:

text:
    512 A.2d 43
    COMMONWEALTH of Pennsylvania, Appellant, v. Marvin GRIMMITT, Appellee.
    Superior Court of Pennsylvania.
    Submitted April 14, 1986.
    Filed July 14, 1986.

      Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellant.
    John H. Corbett, Jr., Public Defender, Pittsburgh, for appellee.
    Before JOHNSON, HOFFMAN and LIPEZ, JJ.
   LIPEZ, Judge:

Defendant pled guilty to two counts of robbery arising out of two separate incidents in which defendant removed cash and other valuables from the victim’s pockets while his cohort pointed a pistol at the victim. Over the Commonwealth’s objection, defendant was sentenced to eleven and one-half to twenty-three months imprisonment and ten years probation. The Commonwealth had sought to apply the Mandatory Minimum Sentencing Act, 42 Pa.C.S. § 9712, which mandates a five year minimum sentence for any person who visibly possesses a firearm during the commission of specified crimes. The Commonwealth’s motion to reconsider sentence was denied and it took this appeal alleging that: (1) section 9712 is applicable to unarmed accomplices; and (2) the lower court erred in failing to apply the deadly weapon enhancement section of the sentencing guidelines. For the reasons discussed below, we vacate the judgment of sentence and remand the case for resentencing.

We are constrained to agree with the Commonwealth’s first contention due to the recent decision of a panel of this court in Commonwealth v. Williams, 353 Pa.Super. 312, 509 A.2d 1292 (1986). In Williams, the court specifically held that “an unarmed accomplice to a crime mandating the imposition of a sentence under § 9712 ... shall be sentenced in accordance thereof if it is shown by the proof that the unarmed accomplice had knowledge that the firearm was visibly possessed by his co-felon in the commission of the crime.” Id., 353 Pa.Superior Ct. at 319, 509 A.2d at 1295. In the instant case, the defendant clearly had knowledge of his co-felon’s visible possession of the firearm during the robberies. Therefore, pursuant to the holding of Williams, he should have received a minimum sentence of five years imprisonment.

Since defendant is to receive a mandatory five year minimum sentence under section 9712, he should not be sentenced to an additional twelve to twenty-four months confinement under the deadly weapon enhancement section of the sentencing guidelines, which applies to defendants sentenced pursuant to the guidelines. 42 Pa.C.S. § 9721, 204 Pa.Code § 303.4.

Judgment of sentence vacated and case remanded for resentencing consistent with this opinion. Jurisdiction is relinquished.

HOFFMAN, J., concurs in the result.

LIPEZ, J., wrote this opinion before the expiration of his term on the court.

      . Although we feel bound to decide this case in accordance with the holding of Williams, we note that the Williams court relied on decisions of other state courts in determining the scope of section 9712. We believe that a result different from that reached by the Williams court could find support in the reasoning and holdings of prior Pennsylvania court decisions.
      In Pennsylvania, an accomplice is guilty of the same crime committed by the principal. 18 Pa.C.S. § 306; Commonwealth v. Coccioletti, 493 Pa. 103, 425 A.2d 387 (1981). Section 306(d) explains the culpability of an accomplice:
      When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense, if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense. (Emphasis added).
      As the above section of the accomplice statute indicates, an accomplice is liable for conduct causing a result which is an element of the offense. Such conduct creates the legal complicity which renders the actor culpable for the offense. Under the Mandatory Minimum Sentencing Act (section 9712), however, "visible possession of a firearm during the commission of one of the specified offenses is not an element of the underlying crime, nor does it constitute a separate offense calling for a separate penalty. Statutorily, visible possession of a firearm is a sentencing factor to be determined by the trial judge after conviction. ” Commonwealth v. Wright, 508 Pa. 25, 43, 494 A.2d 354, 363 (1985) (Larsen J., concurring) (emphasis added) (Justice Larsen’s opinion was joined in by the majority opinion). Thus, in our case, the visible possession of a gun by defendant’s cohort was not an element of the robbery.
      Next, our courts have considered differing conduct among accomplices to the same crime in determining the appropriate punishment for each accomplice. A trial court is not bound to impose a like sentence on all participants of a crime. Commonwealth v. Sinwell, 311 Pa.Super. 419, 457 A.2d 957 (1983); Commonwealth v. Landi, 280 Pa.Super. 134, 421 A.2d 442 (1980). Disparate sentences may be imposed on participants of a crime so long as they accurately reflect the degree of culpability or the background of each defendant. Com

        monwealth v. Landi, supra. For our purposes, it is significant that in Landi this court held that one of the reasons which justified the imposition of a greater sentence on one participant was that he wielded the gun during the commission of the robbery. Id., 280 Pa.Superior Ct. at 140, 421 A.2d at 444.
      Section 9712 is directed at those felons who visibly possess a firearm during the commission of a specified crime. As a panel of this court stated, "[i]t is the potential danger of the firearm which section 9712 addresses ...” Commonwealth v. Healy, 343 Pa.Super. 323, 325, 494 A.2d 869, 870 (1985). Obviously, the potential danger of the fiream is produced by the person wielding the firearm. It is that person who places the victim in great fear, and who can, with a slight pull of the trigger, kill or gravely injure the victim. To subject the armed felon to more severe punishment than the unarmed felon because of the immediate danger that the former presents to the victim would seem to be reasonable.
      Finally, we are bound to construe penal provisions in a strict manner, 1 Pa.C.S. § 1928. Section 9712 states that any person convicted on one of the specified crimes, “if the person visibly possessed a firearm during the commission of the offense,” is to receive a five year minimum sentence. 42 Pa.C.S. § 9712(a) (emphasis added). Furthermore, there is no mention of accomplices in the statute. Contrast this with another sentencing provision, the deadly weapon enhancement section of our sentencing guidelines, which mandates an additional period of confinement when the court determines that “the defendant or an accomplice possessed a deadly weapon ... during the commission of the ... offense.” 42 Pa.C.S. § 9721, 204 Pa.Code § 303.4. (Emphasis added).


author: OLSZEWSKI, Judge: WIEAND, Judge

text:
    512 A.2d 45
    William FLORES and Joan Flores, Appellants, v. The TRAVELERS, Appellee.
    Superior Court of Pennsylvania.
    Argued May 8, 1986.
    Filed July 23, 1986.
    Charles S. Lieberman, Philadelphia, for appellants.
    Jeffrey S. Hoyle, Lansdale, for appellee.
    Before WIEAND, OLSZEWSKI and BECK, JJ.
   OLSZEWSKI, Judge:

This matter comes before this Court on appeal from an order of the lower court, Judge Doty presiding, granting summary judgment in favor of appellee and against appellants. We must now decide whether appellants’ claim for uninsured motorist benefits against an assigned claims plan' insurer is barred by the statute of limitations pursuant to Sections 106(c)(1) and 108(c)(1) of Title 40 of the Pennsylvania No-fault Motor Vehicle Insurance Act (Act).

On September 13, 1980, appellants, William and Joan Flores, were injured when a motor vehicle in which they were traveling as passengers was struck by an unidentified vehicle. The appellants eventually received compensation for basic loss benefits from Federal Kemper Insurance Company (Kemper), the insurer of the vehicle in which appellants were riding, but their claims for uninsured motorist benefits were denied by this insurer on August 10, 1981. It was not until April 27, 1984 that appellants filed a claim for uninsured motorist benefits against appellee, The Travelers, the assigned claims plan designated insurer. Ap-pellee, however, rejected this claim on July 11, 1984. Consequently, appellants filed suit against appellee on August 6, 1984. Thereafter, the lower court granted appellee’s motion for summary judgment and dismissed the complaint. The lower court found that since appellants were aware that Kemper rejected'their claim for benefits on August 10, 1981, they had until August 10, 1983 to file a claim for these benefits with the assigned claims plan. Because they did not file such a claim until April 27, 1984, said claim was barred by Sections 106(c)(1) and 108(c)(1) of the Act. Appellants now allege that in Tubner v. State Farm Mutual Automobile Insurance Co., 496 Pa. 215, 436 A.2d 621 (1981), our Supreme Court held that an assigned claims plan insurer was obligated to provide uninsured motorist benefits “as if a valid policy had been issued.” Thus, appellants state, “Tubner implied a contract of insurance that the legislature did not expressly authorize.” Consequently, “this decision compels the reader to conclude that a four year statute of limitations for contracts implied in law is applicable.” See 42 Pa.C.S.A. Sec. 5525(4). (Appellants’ brief, pp. 7-8). We disagree.

Although Tubner holds that an assigned claims plan insurer was required to pay not only basic loss benefits, but also uninsured motorist benefits to an uninsured motorist on the basis of his statutory rights under the Act, there is no indication that our courts should look outside the Act to determine the applicable statutory period of limitations. We agree with Judge Doty that the applicable period of limitations for claims by an uninsured motorist against an assigned claims plan insurer can be found in Section 106(c) of the Act. See Warren v. Reliance Insurance Company, 318 Pa.Super. 1, 464 A.2d 487 (1983) (en banc); Holland v. General Accident Fire and Life Insurance Company, 339 Pa.Super. 433, 489 A.2d 238 (1985). Moreover, Section 108(c) dealing with uninsured motor vehicle accident victims such as appellants directs them to Section 106(c) to determine the appropriate limitations period. Section 108(c)(1), in pertinent part, provides:

... (A)n 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 ...

40 P.S. Sec. 108(c)(1).

It is noteworthy that although the above section addresses claims for “basic loss benefits,” this Court has construed this phrase to include claims for “uninsured motorist benefits” as well. Lewis v. General Accident Group, 336 Pa.Super. 373, 485 A.2d 1128 (1984). As a result, claims for uninsured motorist benefits are subject to the limitations contained within Section 106(c). The latter section, in pertinent part, 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. If no-fault benefits have been paid for loss arising otherwise than from death, an action for further benefits, other than surviv- or’s benefits, by either the same or another claimant; may be commenced not later than two years after the last payment of benefits.

40 P.S. Sec. 106(c)(1).

Predicated on the period of limitations contained within Section 106(c)(1) of the Act, we must conclude that the lower court correctly determined that appellants’ cause of action is barred. Appellants had been involved in an accident on September 13, 1980 and later discovered on August 10, 1981 that Kemper denied their claim for uninsured motorist benefits. Inasmuch as appellants waited until April 27, 1984 to file a claim with appellee, their claim is now barred under Section 106(c)(1) of the Act.

Order affirmed.

WIEAND, J., files a concurring opinion.

WIEAND, Judge

concurring:

I agree with the majority that the action of William and Joan Flores to recover uninsured motorist benefits is barred by the statute of limitations established by Sections 108(c)(1) and 106(c)(1) of the Pennsylvania No-fault Motor Vehicle Insurance Act of 1974, 40 P.S. §§ 108(c)(1) and 106(c)(1). I write separately to clarify that in my judgment the controlling language is to be found in the following portion of Section 106(c)(1):

If no-fault benefits have been paid for loss arising otherwise than from death, an action for further benefits, other than survivor’s benefits, by either the same or another claimant; may be commenced not later than two years after the last payment of benefits.

Appellants had previously been paid no-fault benefits by the carrier believed to have provided coverage for the vehicle in which they were riding at the time of the accident. A claim for uninsured motorist benefits was denied by the same carrier on August 10, 1981. The instant action against The Travelers, which was the assigned claims carrier, was not commenced until August 6, 1984. This action was too late; it was filed more than two years after the payment of basic no-fault benefits and, therefore, was barred by the statute of limitations contained in Section 106(c)(1) of the No-fault Act.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. Secs. 1009.101-701, repealed Act of February 12, 1984, P.L. 26, No. 11, Sec. 8(a), effective October 1, 1984. (Hereinafter, the prefix "1009” will be eliminated when citing to section numbers in the textual material, e.g., Section 101, not Section 1009.101).

      . It is noteworthy that while appellants’ claims for uninsured motorist benefits against Kemper were made within the period governed by the statute of limitations, appellants' claims for these benefits against appellee were clearly made outside of the statutory period.