author:
BROSKY, Judge:
      KELLY, Judge

text:
    592 A.2d 750
    COMMONWEALTH of Pennsylvania v. Kenneth MURPHY, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 15, 1991.
    Filed June 14, 1991.

      Joseph J. Hylan, Asst. Public Defender, Norristown, for appellant.
    Mary M. Killinger and J. Allen Daringer, Asst. Dist. Attys., Norristown, for Com.
    Before ROWLEY, President Judge, and KELLY and BROSKY, JJ.
   BROSKY, Judge:

Kenneth Murphy appeals from the judgment of sentence of the trial court following his bench trial convictions of possession of controlled substances, possession of controlled substances with the intent to deliver and conspiracy. Appellant was sentenced to a term-of-imprisonment of eleven and one-half months to twenty-three months regarding the possession conviction; twenty-one months to fifty-nine months regarding the possession with intent to deliver conviction; and, fifteen months to fifty-nine months regarding the conspiracy conviction. The aforementioned sentences were to run concurrent with one-another. The trial court stated,

Under the sentencing guidelines in 204 Pa. Code Section 303.9(c)(3), ... for the offense of possession of with intent to deliver ... [the minimum] mitigated range [would be] nine to fifteen months (9-15). [T]his court determined that the appropriate [minimum] sentence was nine to fifteen months[.] Furthermore, the record is clear that this Court would have imposed this [minimum] sentence but for the fact that under the law this Court was compelled to impose at least an additional twelve months to the first nine months pursuant to the enhancement provisions ... in 204 Pa.Code Section 303.9(c)(2). If this section is not mandatory, the matter should obviously be remanded to the sentencing court.

Trial Court Opinion, 1/18/91, at 3-4. The trial court’s addition of twelve months to the minimum mitigated sentence range (of nine months) for possession with intent to deliver accounts for appellant’s minimum sentence, for possession with intent to deliver, of twenty-one months.

Appellant claims on appeal that (1) the trial court erred in finding that it was compelled to apply the sentencing enhancement provisions found at 204 Pa.Code § 303.-9(c)(2); and, (2) the trial court erred in applying the sentencing enhancement provision since the trial court did not require the Commonwealth to prove that appellant intended to be within one-thousand feet of a school. We vacate appellant’s sentences for possession of controlled substances and possession of controlled substances with intent to deliver and remand for resentencing. Our vacation of these sentences is in response to appellant’s first issue and our detection of an illegal component regarding appellant’s sentences for violations of the Controlled Substance Act, at 35 P.S. §§ 780-101 et seq. Regardless of our vacation of appellant’s aforementioned sentences we will address appellant’s second claim since the trial court will be faced with this same issue on remand.

While there is a wealth of information emanating from Pennsylvania case law regarding the sentencing guidelines in general there is a paucity of comment specifically regarding 204 Pa.Code § 303.9(c)(2), which states:

(c) Violations of The Controlled Substance, Drug, Device and Cosmetic Act (35 Pa. §§ 780-101-780-144) are assigned guideline sentence ranges according to this subsection.
(2) When the court determines that the defendant either distributed a controlled substance to a person or persons under the age of 18 in violation of 35 P.S. § 780-114, or manufactured, delivered or possesses with intent to deliver a controlled substance within 1000feet of a public or private elementary or secondary school, then at least 12 months and up to 36 months shall be added to the guideline ranges ... which would otherwise have been applicable____ [Emphasis added.]

Appellant is not denying that he was within one-thousand feet of a school when he possessed cocaine with intent to distribute. He is only alleging that the enhancement provision was inapplicable in the instant case.

The facts adduced at trial indicated that on March 30, 1989 Norristown, Pennsylvania police officers observed an automobile containing appellant and two other men. The three men exited the vehicle. The police officers observed two bags of cocaine in the rear passenger area of the vehicle. Appellant and the other two men were arrested. A search of appellant revealed seven bags of cocaine (containing a total of 3.3 grams), a “Pagenet beeper”, and $557.55 in United States currency. There was no evidence presented at trial that would have suggested that appellant intended to sell the cocaine to minors.

Appellant alleged at trial that on the day that he was arrested he left his automobile at a repair shop at 7:00 a.m. One of appellant’s co-defendants arrived in his automobile and gave appellant a ride to a bar; the men purchased 3.3 grams of cocaine at the bar. Appellant testified that the men drove to another location and parked in an alley in order to administer repairs to the car. Co-defendant Omar Byrd testified that after driving a bit further the car overheated. Byrd stated that the car was then parked, the men left the car in order to walk to a nearby business establishment and were subsequently arrested.

First, we vacate appellant’s sentence for possession of a controlled substance and remand for resentencing since the trial court imposed an illegal sentence. The trial court should have merged for sentencing purposes the crimes of possession of controlled substances and possession with intent to deliver since both charges stemmed from the same act of possession. Commonwealth v. Logan, 404 Pa.Super. 100, 590 A.2d 300 (1991); Commonwealth v. Johnston, 348 Pa.Super. 160, 501 A.2d 1119 (1985), affirmed at 515 Pa. 454, 530 A.2d 74 (1987).

Second, we vacate appellant’s sentence for possession with intent to deliver and remand for resentencing in response to appellant’s claim in issue number one since the trial court erred in finding that it was compelled, pursuant to the sentencing enhancement provision found at 204 Pa. Code § 303.9(c)(2), to add at least twelve additional months to appellant’s minimum sentence for possession with intent to deliver. The trial court stated that it believed that the addition of at least twelve additional months to appellant’s minimum sentence was mandatory.

The imposition of a proper sentence is a matter vested in the sound discretion of the trial court whose determination must be respected unless it involves a manifest abuse of discretion. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988); Commonwealth v. Losch, 369 Pa.Super. 192, 535 A.2d 115 (1987). However, the trial court must exercise its discretion in accordance with the applicable provisions of the Sentencing Code, 42 Pa.C.S. §§ 9701 et seq. The Code provides, in pertinent part, that the trial court

shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant. The court shall also consider any guidelines for sentencing adopted by the Pennsylvania Commission of Sentencing____ In every case where the court imposes a sentence outside the sentencing guidelines ... the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines.

42 Pa.C.S. § 9721(b).

Our Supreme Court has stated that a sentencing court is not required to adopt the recommendations in the sentencing guidelines but it must at least consider them. Commonwealth v. Cornish, 403 Pa.Super. 492, 589 A.2d 718 (1991); See Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987). The sentencing guidelines do not preclude judicial discretion. Commonwealth v. Septak, 359 Pa.Super. 375, 518 A.2d 1284 (1986). The deadly weapon enhancement sentencing guideline, at 204 Pa. Code § 303.4, contains language similar to that found in 204 Pa.Code § 303.9(c)(2), the guideline under consideration in the instant case. Both mandate that an additional minimum sentence of at least twelve months “shall be added” to a defendant’s regular minimum sentence if the enhancement provision is triggered. In reference to the deadly weapon enhancement guideline provision, our Court stated in Commonwealth v. Cornish, supra,

The sentencing court may not disregard this section in determining the appropriate guideline sentencing ranges. See Commonwealth v. Septak, 359 Pa.Super. 375, 380, 518 A.2d 1284, 1286 (1986); Commonwealth v. Drumgoole, 341 Pa.Super. 468, 474, 491 A.2d 1352, 1355 (1985). [Footnote 4] It is imperative that the sentencing court determine the correct starting point in the guidelines before imposing sentence. [Citations omitted.]
[Footnote 4] Both Septak and Drumgoole construed the prior sentencing guidelines, which were declared unconstitutional in Commonwealth v. Sessoms, supra. The present guidelines were promulgated on February 22, 1988 (effective April 25, 1988). Section 303.4 of the present guidelines is substantially similar to § 303.4 of the prior guidelines.

Id., 403 Pa.Superior Ct. at-, 589 A.2d at 720.

Hence, in the instant case the sentencing court only had to consider the sentencing enhancement provision found at 204 Pa.Code § 303.9(c)(2). The addition of the additional months to appellant’s minimum sentence for possession with intent to deliver, pursuant to the enhancement provision, only provided the trial court with the correct starting point in the guidelines before the sentencing court imposed its sentence. Cornish, supra, Septak, supra, Drumgoole, supra. The sentencing court was not compelled to add at least an additional twelve months to appellant’s sentence for possession with intent to deliver since it could have sentenced outside of the guidelines; a sentence outside of the guidelines would have required “a contemporaneous written statement of the reason or reasons for the deviation from the guidelines.” 42 Pa.C.S. § 9721(b). Therefore, we vacate appellant’s sentence for possession with intent to deliver and remand to the trial court for resentencing consistent with this opinion.

The parties and the trial court aver that appellant’s second issue-is one of first impression. Appellant claims that the trial court erred in applying the sentence enhancement provision to his sentence for possession with intent to deliver since it did not require the Commonwealth to first prove that appellant intended to be within one-thousand feet of a school when he possessed controlled substances with intent to deliver. Appellant contends that his presence within one-thousand feet of the school was “an accident, an [sic] happenstance, a coincidence[.]” Appellant’s Brief at 10.

The instant sentencing guideline under consideration, at 204 Pa.Code § 303.9(c)(2) states, in pertinent part:

(2) When the [sentencing] court determines that the defendant ... possesses with intent to deliver a controlled substance within 1000 feet of a ... school, then at least 12 months and up to 36 months shall be added to the guideline ranges ... which would otherwise have been applicable____ [Emphasis added.]

Appellant cites no Pennsylvania authority to support his position. He refers us to the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970, which is an Act and not merely a sentencing guideline, which contains a similar provision that states, in pertinent part:

(a) Any person who ... possesses] with intent to distribute ... a controlled substance ... within one thousand feet of... a ... school ... is ... punishable (1) by a term of imprisonment, or fine, or both up to twice that authorized by ... this title, and (2) at least twice any term of supervised release authorized by section 401(b) for a first offense. [Emphasis added.]

21 U.S.C.S. § 845a(a).

The federal statute was interpreted in U.S. v. Crew, 916 F.2d 980 (5th Cir.1990). The court stated that § 845a was enacted to create a “drug-free zone” around schools and to send a clear signal to drug dealers that their presence would not be tolerated within a certain proximity to schools. Id. The court also stated that the statute was equally applicable before and after school hours. Id. The court further stated that the penalty would be applied whether or not the violator knew that he was within one-thousand feet of a school. Id.

In U.S. v. Holland, 810 F.2d 1215 (D.C.Cir.1987), the court stated that § 845a does not require the prosecution to prove that the drug trafficker had actual knowledge of his proximity to a school. The court stated that Congressional interest in protecting children from direct and indirect subjection to drug traffic amply supported Congress’ decision not to require a showing of mens rea of the proximity of a school. Id. The court in Holland also stated that Congress expected drug traffickers to ascertain their proximity to schools and transfer their operations from those areas or assume the risk for their failure to do so. Id.

Appellant cites U.S. v. Roberts, 735 F.Supp. 537 (S.D.N.Y.1990). The defendant in Roberts did not claim that he should have known that he was possessing drugs within one-thousand feet of a school or that he should have known that there was a school nearby in order to have intended to distribute near a school. The defendant interpreted the statute to mean that he could not be found to have violated § 845a unless he intended to distribute the drugs within one-thousand feet of a school. The court stated that since the statute was ambiguous the court would apply the rule of lenity, which dictates that the ambiguity be resolved in favor of the defendant. Id. The district court reversed the defendant’s conviction, stating that the statute must be read to require intent to distribute drugs within one-thousand feet of a school.

None of the aforementioned federal cases addressed appellant’s specific instant claim that the prosecution was required to prove that appellant intended to be within one-thousand feet of a school. “Possession with intent to deliver controlled substances” is a phrase used to characterize a specific crime. 35 Pa.S. § 780-113(a)(30). Equivalent phrasing is found in 204 Pa.Code § 303.9(c)(2): “possesses with intent to deliver a controlled substance within 1000 feet of a ... school[.]” (Emphasis added). The arrangement of the words in § 303.9(c)(2) clearly refers to the crime of “possession with intent to deliver” when it is committed within one-thousand feet of a school. There is no reference to a defendant’s intention to be within one-thousand feet of a school, nor is there a reference to a defendant’s intention to actually distribute drugs within that zone. The guideline does not read “possession, with intent to deliver within 1000 feet of a school.” Our interpretation of the meaning of § 303.9(c)(2) is consistent with the viewpoint enunciated in the aforementioned federal cases: The purpose of this type of sentence enhancement should be to create a drug-free zone around schools and to signal to drug traffickers that their presence in this zone would subject them to longer sentences upon conviction. Hence, we reject appellant’s claim that the Commonwealth must prove that a defendant intended to be within one-thousand feet of a school. Accordingly, the trial court did not err in not requiring the Commonwealth to do so.

Appellant’s sentences for possession of controlled substances and possession of controlled substances with intent to deliver are vacated; case remanded to the trial court with instructions consistent with this opinion. Jurisdiction is relinquished.

KELLY, J., files a concurring statement.

KELLY, Judge

concurring statement:

I join in all aspects of the majority’s well reasoned opinion. Although appellant’s counsel has failed to recognize and challenge the illegality of the sentences which should have merged, it is clear that we may raise the claim for appellant notwithstanding the failure of counsel to present such an argument. Moreover, with regard to appellant’s challenges to the discretionary aspects of his sentence, it is apparent that the trial court confused the intended effect of a sentencing guideline enhancement with the intended effect of a mandatory minimum sentence. The former mandates that an increased sentence be considered; the later mandates that a minimum sentence be imposed. See Commonwealth v. Brown, 402 Pa.Super. 369, 587 A.2d 6 (1991); Commonwealth v. Kreiser, 399 Pa.Super. 370, 582 A.2d 387 (1990). As the United States Supreme Court explained, the Pennsylvania sentencing guidelines enhancement provision simply “ups the ante” for the defendant found to be within the ambit of the enhancement’s intent. McMillan v. Pennsylvania, 477 U.S. 79, 89, 106 S.Ct. 2411, 2417, 91 L.Ed.2d 67, 78 (1986) (holding that the Pennsylvania deadly weapons enhancement does not violate the right to due process).

I note that I find no error, however, in the trial court’s reliance on the legislature’s intent in enacting sentencing enhancements which effectively create “drug free school zones.” As the trial court recognized, such enhancements were unquestionably put in force in an attempt to protect our youth from the irrefutably colossal and catastrophic consequences of drugs. See Commonwealth v. Ramos, 392 Pa.Super. 583, 585-89, 573 A.2d 1027, 1029-30 (1990) (citing authorities). Incumbent upon the sentencer is of course the obligation to pay due deference to the intent and effect of such legislation. Indeed, for the trial court to have disregarded such a factor would well have been an abuse of discretion, as this Court recently held:

The destructive character of such activity [drug sales] to the well being of society is so well documented as not to require further documentation here. To ignore the provisions established by law for controlling and hopefully deterring such behavior brings the judicial process into question and undermines the confidence of society in the judiciary, while bringing solace and encouragement to the drug peddlers.

Commonwealth v. Rosario, 400 Pa.Super. 505, 583 A.2d 1229 (1990) (footnotes omitted) (per Taniilia, J.).

      . 35 P.S. § 780-113(a)(16).

      . 35 P.S. § 780-113(a)(30).

      . 18 Pa.C.S. § 903.

      . The trial court noted in its January 18, 1991 opinion, at p. 2, n. 1, that, "[w]hile [it] concedes that the offense of simple possession merges for sentencing purposes, it sentenced the defendant in contemplation that the overall sentence might be appealed.”

      . This is an appeal from the discretionary aspects of a sentence. Appellant has failed to include a concise statement of reasons relied upon for appeal as required by Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), and Pa.R.A.P. 2119(f). The Commonwealth has failed to object to this deficiency. However, this Court still retains the authority to quash the appeal for non-compliance, regardless of whether the Commonwealth objects to the deficiency. Commonwealth v. Gambal, 522 Pa. 280, 561 A.2d 710 (1989). The purpose of the inclusion of a “concise statement” is to enable an appellant to demonstrate that there is a substantial question as to the appropriateness of the sentence under the Sentencing Code. Commonwealth v. Tuladziecki, supra; 42 Pa.C.S. § 9781(b). In determining whether there is a substantial question we must ascertain if the Sentencing Code as a whole has been compromised. Commonwealth v. Ousley, 392 Pa.Super. 549, 573 A.2d 599 (1990). In the instant case, our review of appellant's claim has not been significantly hampered by the lack of the Rule 2119(f) statement. Furthermore, our review indicated that a substantial question has been presented. Id. Hence, we will address the merits of appellant’s claims.

      . We are not disturbing appellant's sentence for conspiracy.

      . The car was parked and the men were arrested within one-thousand feet of a school. Appellant and the two other men were tried as co-defendants.

      . Although appellant never raised this issue it is one which this Court may raise sua sponte since it involves the legality of appellant’s sentence. Commonwealth v. Johnston, 348 Pa.Super. 160, 501 A.2d 1119 (1985), affirmed at 515 Pa. 454, 530 A.2d 74 (1987).

      . There are at present no Third Circuit cases that have discussed or interpreted 21 U.S.C.S. § 845a.

      . The court in Roberts focused on whether that defendant intended to actually distribute drugs within one-thousand feet of a school. It did not address a claim involving a defendant who simply happened to be within the zone because of "coincidence,” regardless of whether or not he intended to actually distribute the drugs within the zone.

      . While I agree that appellant’s failure to even attempt to comply with Pa.R.A.P. 2119(f) does not hamper our ability to review the instant challenge to the discretionary aspects of sentence, it should be noted that our decision to review appellant’s claim is based on efforts to promote judicial economy and a reluctance to fault the powerless appellant for offending counsel's procedural default. See Commonwealth v. Ciotto, 382 Pa.Super. 458, 461 n. 1, 555 A.2d 930, 931 n. 1 (1989); Commonwealth v. Osteen, 381 Pa.Super. 120, 125, 552 A.2d 1124, 1126 (1989). This Court has not in the past, nor should it be seen to now, countenance such apparent contempt for the rules and procedure promulgated by our Supreme Court. See Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Rather, it remains true that although this Court chose to simply waive the defect instantly, it reserves the right, in its sound discretion, to quash the appeal for such defects or direct immediate compliance in the form of a supplemental Pa.R.A.P. 2119(f) statement. See Commonwealth v. Penrod, 396 Pa.Super. 221, 228-30, 578 A.2d 486, 490 (1990) (citing cases).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    592 A.2d 756
    COMMONWEALTH of Pennsylvania, Appellee, v. 502-504 GORDON STREET, in the Ninth Ward of the City of Allentown, County of Lehigh, Commonwealth of Pennsylvania as Described with Particularity in Deed Book Volume Number 366, Page 342, Record of Deeds Office, Lehigh County, and All Improvements, Appurtenances, Buildings, Structures, Furnishings, Equipment and All Items Personality Found Therein. Appeal of Mattia LONARDO and Marjorie J. Lonardo.
    Superior Court of Pennsylvania.
    Argued Jan. 15, 1991.
    Filed March 27, 1991.
    John P. Karoly, Jr., Allentown, for appellant.

      Richard R. Tomsho, Asst. Dist. Atty., Allentown, for Com., appellee.
    Before McEWEN, KELLY and HUDOCK, JJ.
   PER CURIAM:

This is an appeal from the order forfeiting to the Commonwealth the property, together with all improvements and items found within any structure built thereon, owned by the Appellants, Mattia and Marjorie Lonardo, at 502-504 Gordon Street in Allentown, Pennsylvania. After careful review, we find that this Court lacks jurisdiction to review the order in question and, accordingly, transfer the case to the Commonwealth Court.

The Allentown Police Department seized the Appellant’s property where their bar, known as Shorty’s Cafe (“Shorty’s”), was operated. Thereafter, the Commonwealth filed a petition for forfeiture pursuant to the Controlled Substance Forfeiture Act (“the Act”), 42 Pa.C.S.A. §§ 6801 et seq. The Commonwealth’s petition was filed after numerous drug related arrests had occurred at Shorty’s. At the hearing on the Commonwealth’s petition, twenty-three police officers testified and recounted at least seventeen specific incidents at the bar between the period of December 2, 1988 and May 6, 1989, the date of seizure. The police officers and the Commonwealth’s rebuttal witnesses described endless drug related activity consisting of the use and sale of drugs at Shorty’s. The Appellants disclaimed any knowledge of these activities and produced witnesses supporting this position. After the court entered its order, the Appellants filed exceptions which were not formally disposed of by the court prior to the instant appeal being commenced in timely fashion.

The Appellants raise six questions on appeal. However, we agree with the Commonwealth’s argument related to this Court’s lack of jurisdiction to hear this appeal. By its terms, the Act sets forth that “[t]he proceedings for the forfeiture or condemnation of property ... shall be in rem, in which the Commonwealth shall be the plaintiff and the property the defendant.” 42 Pa.C.S.A. § 6802(a). The Judicial Code provides that “the Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in the following cases: (1) Commonwealth civil cases.—All civil actions or proceedings: ... (ii) By the Commonwealth government, including any officer thereof acting in his official capacity.” 42 Pa.C.S.A. § 762(a)(1)(h).

Appeal transferred to Commonwealth Court.

      . Pa.R.Civ.P. 227.1 was amended to preclude the filing of a motion for post-trial relief. See, Commonwealth v. One 1988 Ford Coupe, 393 Pa.Super. 320, 324, n. 3, 574 A.2d 631, 633, n. 3 (1990).

      . We recognize that forfeiture proceedings under the former Act, 35 Pa.S.A. §§ 780-128, 780-129, were considered within our jurisdiction. See, Commonwealth v. $126,730.50, 399 Pa.Super. 118, 581 A.2d 953 (1990). Indeed, such proceedings were classified as being quasi-criminal in nature. Id. However, unlike most forfeiture proceedings, the instant case involves no pending criminal charges against the property owners, nor, apparently, are any contemplated. Equally true, the instant appeal is from the forfeiture order issued in response to the Commonwealth’s forfeiture petition, and not from an order denying a property owner’s petition for return of property.


author: HOFFMAN, Judge:- WIEAND, Judge,

text:
    592 A.2d 1306
    WEST PENN POWER COMPANY, 800 Cabin Hill Greensburg, PA 15601 v. Jack B. PIATT, 90 West Chestnut Street Washington, PA 15301 Jack B. Piatt, Trading as Millcraft Center Limited Partnership, a Partnership, Washington, PA 15301, Appellant.
    Superior Court of Pennsylvania.
    Argued March 20, 1991.
    Filed May 16, 1991.
    Reargument Denied July 29, 1991.

      Debra B. Todd, Pittsburgh, for appellant.
    Clarence A. Crumrine, Greensburg, for appellee.
    Before ROWLEY, President Judge, and WIEAND, and HOFFMAN, JJ.
   HOFFMAN, Judge:-

This appeal is from an August 9, 1990 order that (1) granted the motion for summary judgment of appellee, West Penn Power Co. (“West Penn”), and (2) granted judgment on the pleadings in favor of West Penn on appellant's counterclaim. The trial court granted judgment premised upon application of this Court’s decision in West Penn Power v. Nationwide Insurance Co., 209 Pa.Super. 509, 228 A.2d 218 (1967). On appeal, appellant, Jack B. Piatt and Jack B. Piatt, t/a Millcraft Center Limited Partnership (“Millcraft”), contends that Nationwide is distinguishable from this case because the issues of West Penn’s negligence and the defendant’s detrimental reliance thereon were never raised in Nationwide. For the reasons set forth below, we agree with appellant’s argument that Nationwide does not bar his defense of detrimental reliance. Accordingly, we reverse the order below and remand for trial.

The facts underlying this appeal, aptly summarized by the trial court, are as follows:

On March 7, 1988, West Penn Power Company (West Penn) filed a praecipe for writ of summons against the defendants, Jack B. Piatt and Jack B. Piatt, trading as Millcraft Center Limited Partnership, a partnership (collectively referred to as Millcraft). In the complaint against the defendants brought on August 29, 1988, West Penn has sought to recover amounts due as a result of underbilling Millcraft for electrical services at its commercial building, 90 West Chestnut Street, Washington, Pennsylvania. In its answer, new matter and counterclaim [filed on October 20, 1988], Millcraft has alleged that it is entitled to recover any amounts determined by the court to be owed to West Penn, because Millcraft reasonably and justifiably relied to its detriment on West Penn’s negligence and representations when West Penn established the rates.
During May 1977, the electric meter in question was installed by West Penn on Millcraft’s premises. West Penn billed Millcraft for electrical consumption between May 1977 and September 22, 1987. Because it had inadvertently used an incorrect multiplier in calculating the amount of each monthly statement, West Penn contends that the amounts charged to Millcraft were approximately 75% of the amount which should have been charged. In October 1987, West Penn informed Millcraft that the utility had discovered an error in the billings, attributing the error to a mistake by the West Penn technician who had installed the electric meter. During a change in the electric metering on the premises on September 19, 1987, West Penn discovered that the wrong constant had been used since the installation of the original meter in 1977. When a technician reads the meter, he notes the amount shown and then the company applies a constant by which that amount of electricity indicated is multiplied in order to arrive at the actual electric consumption.
No dispute exists about the facts. To each bill from 1977 to September 1987, Millcraft responded by paying the amount demanded. Since 1976, Millcraft has leased parts of the building to various tenants, passing to the tenants the cost of utilities. No question exists that Millcraft calculated its rental rates in part upon the electrical rate charged to it by West Penn. Thus, Mill-craft says it cannot recover these rental rates.
West Penn has admitted that its calculations from 1977 to September 1987 were erroneous, conceding that the amounts actually billed have always been made by West Penn’s representatives. West Penn’s Answers to Request for Admissions. Under its contract with Millcraft, the utility company provided that the rate for electric service would be West Penn’s Rate Schedule 30, which was on file with the Pennsylvania Public Utility Commission. The reason for the underbilling was that West Penn had used an incorrect multiplier of 1125 applied to the meter readings, whereas the correct multiplier should have been 1500. For the electric service from March 1984 (allowing recovery for four years under the statute of limitations) to September 1987, Millcraft paid the amount of $237,804.14; if the correct multiplier had been used, pursuant to the tariff Millcraft should have paid the sum of $313,082.43, the difference being $75,278.29. In addition, the difference reflects the changes in rates approved by the Pennsylvania Public Utility Commission.

471

Trial Court Opinion, August 9 1990 at 2-4. On May 10, 1989 West Penn moved for judgment on the pleadings with regard to Millcraft’s counterclaim, and summary judgment on its Complaint. After briefing and argument, the trial court granted both motions on August 9, 1990, and judgment was entered in favor of West Penn. This timely appeal followed.

A motion for summary judgment may properly be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Pa.R.C.P. 1035; Hoffman v. Sun Pipe Line Co., 394 Pa.Super. 109, 111, 575 A.2d 122, 124 (1990). See also Hedlund Mfg. Co. v. Weiser, 517 Pa. 522, 539 A.2d 357 (1988). On appellate review, an order granting a motion for summary judgment will not be reversed unless the court below has committed an error of law or clearly abused its discretion. Hoffman v. Sun Pipe Line Co., supra (citations omitted). Similarly, in reviewing the appropriateness of judgment on the pleadings, we are guided by the following principles:

Judgment on the pleadings should not be entered where there are disputed issues of material fact. The court must treat the motion as if it were a preliminary objection in the form of a demurrer. In conducting this inquiry, the court should confine its consideration to the pleading and relevant documents. Since a motion for judgment on the pleadings is not a motion for summary judgment, no affidavit or depositions may be considered, nor is any matter before the court except the pleadings.

Del Quadro v. City of Philadelphia, 293 Pa.Super. 173, 176, 437 A.2d 1262, 1263 (1981) (citations omitted). See also Pa.R.C.P. 1034; Trice v. Mozenter, 356 Pa.Super. 510, 511— 12, 515 A.2d 10, 10 (1986) (judgment on pleadings should be granted only in cases clear and free from doubt); Trost v. Clover, 234 Pa.Super. 255, 257, 338 A.2d 630, 631 (1975) (in evaluating motion for judgment on pleadings, court must accept as true all averments of fact by opposing party which are material and relevant, but not his inferences or conclusions of law).

Here, as noted above, the trial court’s disposition was premised on our decision in Nationwide. The court held that Nationwide required that judgment be entered in West Penn’s favor, and that Nationwide banned all equitable defenses to West Penn’s action to collect arrearages as a result of its undercharges. See Trial Court Opinion, supra at 6, 8-9. Appellant, however, contends that Nationwide does not control this case. Specifically, appellant argues that Nationwide is distinguishable because the issues of West Penn's negligence and the defendant’s detrimental reliance thereon were never presented to the Nationwide court. Because this case is distinguishable from Nationwide, appellant argues, the trial court was not bound to follow Nationwide in deciding whether to grant summary judgment and judgment on the pleadings in appellant’s favor. We agree.

In Nationwide, as here, West Penn sought to recover funds lost as a result of its underbilling of a customer, Nationwide Insurance Co. (“Nationwide Insurance”). In its defense, Nationwide Insurance averred facts to constitute defenses of accord and satisfaction, payment, estoppel and breach of contract. The trial court ruled that the only issue was whether Nationwide Insurance had paid in full for the electricity furnished by West Penn. On appeal, this court agreed that the only issue properly raised concerned whether Nationwide Insurance had paid in full for the electricity. We also held that Nationwide Insurance had failed to sustain its defenses. In so holding, we noted that a utility can only charge the customer the lawful rate as tariffed, and cannot provide customers with preferential treatment. However, we went on to evaluate the defenses raised by Nationwide Insurance, and rejected them because they were without merit on the facts alleged. The important point to be drawn from the analysis in Nationwide is that this Court did not suggest that there is a general prohibition against the assertion of defenses to a public utility’s attempt to recover amounts it undercharged a customer. Furthermore, our examination of Nationwide indicates that no such prohibition exists. The Nationwide court merely held that a utility is entitled to recover amounts it undercharged a customer, at least when that customer failed to allege sufficient facts in its defense to raise a disputed issue of material fact or show that the utility is not entitled to judgment as a matter of law. Nationwide leaves open the question of whether a utility is entitled to recover amounts it undercharged a customer when that customer asserts a meritorious defense. Thus, the trial court could properly have granted appellee summary judgment and judgment on the pleadings based on Nationwide only if the pleadings indicated that appellee was entitled to judgment as a matter of law on appellant’s counterclaim, see Hoffman v. Sun Pipe Line Co., supra, and the counterclaim was clearly and without a doubt meritless. See Trice v. Mozenter, supra.

The record reveals the following facts. West Penn undercharged Millcraft for electric service provided from May 31, 1977 to September 22, 1987. See Complaint, August 25, 1988. That undercharging was solely caused by the mistake of West Penn’s technician, who installed the meter by which Millcraft’s electric consumption was calculated. See Trial Court Opinion, supra at 2-3. Millcraft is a commercial landowner, whose revenues are generated from rents charged tenants at the property in question. Id. at 3. Millcraft calculated the rents it charged its tenants based in part on its utility bills. Id. Millcraft has undercharged its tenants based on its reliance on those bills. Id. Construing these allegations in the light most favorable to Millcraft, we find that Millcraft has pleaded sufficient facts to establish its defense of detrimental reliance. Cf. Germantown Mfg. Co. v. Rawlinson, 341 Pa.Super. 42, 491 A.2d 138 (1985); Love v. Metropolitan Life Ins. Co., 99 F.Supp. 641 (E.D.Pa.1951). Thus, West Penn was not entitled to prevail on appellant’s counterclaim, and the trial court erred in granting judgment on the pleadings in West Penn’s favor. See Hoffman v. Sun Pipe Line Co., supra. For the same reason, it is clear that appellee was not entitled to judgment as a matter of law. Thus, the trial court erred in entering summary judgment in appellee’s favor, also. See Trice v. Mozenter, supra.

In summary, Nationwide does not preclude assertion of appellant’s counterclaim, and a review of the pleadings reveals that appellant may be entitled to relief on the issues raised therein. Under these circumstances, the trial court erred in concluding that (1) West Penn was entitled to summary judgment as a matter of law, and (2) West Penn was entitled to judgment on the pleadings with regard to Millcraft’s counterclaim. Thus, we are compelled to reverse the order below and remand for trial.

Order reversed. Case remanded for trial.

Jurisdiction relinquished.

WIEAND, J., files a concurring statement.

WIEAND, Judge,

concurring.

I join the majority’s analysis. I write separately only to note my disagreement with any suggestion that the granting of a motion for summary judgment is discretionary with the trial court. Whether to grant such a motion is purely a question of law, and an order entering summary judgment will be reversed whenever an error of law has been committed.

      . The court’s order also directed the Prothonotary to enter judgment against appellants.

      . The Nationwide court cited 66 P.S. § 1143 for the proposition that public utilities are prohibited from giving customers preferential rates for service. That Section was the precursor of 66 Pa. C.S.A. § 1303, which provides:
      No public utility shall, directly or indirectly, by any device whatsoever, or in anywise, demand or receive from any person, corporation, or municipal corporation a greater or less rate for any service rendered or to be rendered by such public utility than that specified in the tariffs of such public utility applicable thereto. The rates specified in such tariffs shall be the lawful rates of such public utility until changed, as provided in this part. Any public utility, having more than one rate applicable to service rendered to a patron, shall, after notice of service conditions, compute bills under the rate most advantageous to the patron.

        Id.

      Section 1502 prohibits discrimination of any kind in the provision of public utility service:
      No public utility shall, as to service, make or grant any unreasonable preference or advantage to any person, corporation, or municipal corporation, or subject any person, corporation, or municipal corporation to any unreasonable prejudice or disadvantage. No public utility shall establish or maintain any unreasonable difference as to service, either as between localities or as between classes of service, but this section does not prohibit the establishment of reasonable classes of service.

        Id.

      . We are aware that the Nationwide court quoted the following language in its opinion:
      regardless of the source of the alleged rights, the granting of free service to [the school district] was discriminatory, and a violation of the ... Public Utility Law.

        Nationwide, supra, 209 Pa.Super. at 512, 228 A.2d at 220 (citations omitted). This language came from our decision in Scranton Electric Co. v. Avoca School Dist., 155 Pa.Super. 270, 37 A.2d 725 (1944). In Scranton v. Avoca, a utility sought to recover arrearages caused by the defendant’s failure to pay its electric bills. The above-quoted language was employed by the court in rejecting the defendant’s claim that it was not obligated to pay because of an agreement with the company’s predecessor that service would be provided free of charge. The court’s decision in Scranton v. Avoca was based on the sound principle that utilities provide services for the public good, and should therefore be strictly regulated and have little discretion in setting their rates. Id., 155 Pa.Superior Ct. at 274, 37 A.2d at 727. Undercharging customers, under this theory, is against the public interest as it provides those customers with a preferential rate. Because the utility has no authority to grant preferences, the customer has no entitlement to such a preference. Here, however, we are faced with an entirely different situation in which no agreement for free service is alleged, and a customer has innocently relied, to his detriment, on a utility’s negligent misrepresentations of what its rates were. Thus, Scranton v. Avoca does not preclude appellant’s counterclaim.


author: OLSZEWSKI, Judge:

text:
    592 A.2d 1310
    Marvin S. SAMUELS, Appellant, v. BLUE CROSS OF GREATER PHILADELPHIA and Pennsylvania Blue Shield and Hahnemann University, Appellees. (Two Cases)
    Superior Court of Pennsylvania.
    Argued March 20, 1991.
    Filed May 22, 1991.
    Reargument Denied July 30, 1991.

      Edward J. Weiss, Media, for appellant.
    John A. Gephart, Philadelphia, for Blue Cross, appellee.
    Paul A. Buceo, Media, for Blue Shield, appellee.
    Before CIRILLO, OLSZEWSKI and CERCONE, JJ.
   OLSZEWSKI, Judge:

Marvin S. Samuels appeals from two orders granting summary judgment in favor of defendants, Independence Blue Cross (Blue Cross) and Pennsylvania Blue Shield (Blue Shield). Both orders also dismissed Samuels’ motions for partial summary judgment against the respective defendants. The trial court based the grant of summary judgment on alternative grounds: first, that the coordination of benefits clauses in the insurance contracts between the respective defendants and Samuels dictate that neither Blue Cross nor Blue Shield is liable to Samuels; alternatively, that the time limitation clauses contained in those contracts prevent Samuels from maintaining these actions against the insurers. Samuels argues that material factual issues exist as to both grounds for the summary judgment orders requiring a reversal and remand for further proceedings. Having examined the record and the parties’ arguments, we agree that the time limitation clauses do not prevent Samuels from bringing these actions. Nonetheless, we affirm the trial court’s order based upon the coordination of benefits clauses.

The relevant factual and procedural history of these actions may be summarized as follows. Samuels has been covered by the federal Medicare program, Parts “A” and “B”, since 1982 as a disabled individual under the age of 65. (Trial court opinion at 2.) Samuels also maintains health insurance with the respective defendant insurers under a Master Comprehensive—UCR 100 plan. (Id., at 2-3.) Samuels has carried this coverage since 1960; the plan is a group plan issued to Center City Proprietors. Coverage was extended to Samuels through Almar Parking Corporation. (Id.)

Samuels received medical services, on both an inpatient and outpatient basis, from the Hahnemann University Hospital from March 2, 1986, through April 2, 1987. (Id., at 1-2.) Total charges for outpatient services during that time are alleged to be $13,157.00; total charges for inpatient services amounted to $35,938.80. (Appellant’s brief at 5.) Blue Shield paid for the outpatient services, Blue Cross for the inpatient services. On June 17, 1987, both defendant insurers retracted their payment to the Hahnemann Hospital, as Medicare had also paid the hospital for the services rendered to Samuels. (Trial court opinion at 2.) Following an unsuccessful attempt to appeal that denial with the insurers, Samuels filed suit against the respective insurer defendants and Hahnemann Hospital on August 8, 1988. (Id., at 1.)

As an initial matter, we note that the standards applicable to a motion for summary judgment are well settled and clear. Summary judgment is only proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Pa.R.Civ.P. 1035(b), 42 Pa.C.S.A. The movant must demonstrate that no genuine factual issues exist and that he is entitled to judgment as a matter of law. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 202-05, 412 A.2d 466, 468-69 (1979) (citations omitted). An appellate court must examine the record in the light most favorable to the non-moving party, who is entitled to the benefit of all reasonable inferences. Pennsylvania Gas & Water Co. v. Nenna & Frain, Inc., 320 Pa.Super. 291, 297-99, 467 A.2d 330, 333 (1983) (citations omitted). It is not the trial court’s function to decide factual issues, the inquiry is restricted to a determination of the existence of a material factual dispute. Washington Federal Savings & Loan Assoc. v. Stein, 357 Pa.Super. 286, 288-89, 515 A.2d 980, 981 (1986) (citations omitted). All doubts as to the existence of a genuine issue of material fact must be resolved against the movant, as summary judgment is only proper in the clearest of cases. Thompson Coal, supra, 488 Pa. at 202-05, 412 A.2d at 468-69 (citations omitted). With these standards in mind, we examine Samuels’ claims.

TIME LIMITATION CLAUSES

The contracts drafted by the respective defendant insurers contained clauses limiting the period of time Samuels had to bring an action based on those contracts. The Blue Cross contract required Samuels to bring an action within two years of the date the medical services, payment for which is disputed, were rendered. (Trial court opinion at 6.) The Blue Shield contract required Samuels to bring an action within one year of the date medical services were rendered. {Id., at 4.) These types of provisions have been expressly approved by our Supreme Court. See, inter alia, Lardas v. Underwriters Insurance Co., 426 Pa. 47, 49-50, 231 A.2d 740, 741 (1967) (citations omitted). See also, 42 Pa.C.S.A. § 5501(a) specifically allowing written contractual modification of the statute of limitations as long as such modification is reasonable. Nevertheless, an insurer can, in effect, toll this contractually imposed limitations period if, by its actions, it induces an insured to forbear bringing suit within the prescribed period. Schreiber v. Pennsylvania Lumberman’s Mutual Insurance Co., 498 Pa. 21, 24-25, 444 A.2d 647, 649 (1982) (citation omitted); Diamon v. Penn Mutual Fire Insurance Co., 247 Pa.Super. 534, 542-48, 372 A.2d 1218, 1222-25 (1977) (citations omitted); Terpeluk v. Insurance Co. of North America, 189 Pa.Super. 259, 265-66, 150 A.2d 558, 561 (1959).

The defendant insurers initially paid for the services Samuels received at the Hahnemann Hospital. Those payments were retracted on June 17, 1987. Until the insurers retracted the payment, Samuels could not have known that a coverage dispute existed. Samuels was entitled to rely upon the insurers course of conduct of providing payment for the services rendered. Having induced Samuels to forbear bringing suit within the prescribed period, the insurers cannot now raise the contractual limitation as a defense. We hold that where an insurer provides benefits and later retracts payment, any contractual time limitation is tolled until the date of retraction.

Additionally, both Blue Cross and Blue Shield provide a claims appeal procedure. By providing the procedure, the insurer induces the insured to make use of it. This procedure allows insureds to request a review of a denial of benefits under the insurance policy. Such voluntary dispute-resolution mechanisms are to be encouraged. They provide an opportunity for an amicable resolution of any denial which arose from an honest mistake or lack of information, conserve the financial resources of both insureds and insurers, alleviate the pressure on the congested dockets of our trial courts, and prevent those courts from becoming claims-processing adjuncts of the insurance industry resolving all disputes no matter how trivial. To adopt the interpretation urged today by the insurers would discourage, rather than encourage, the use of such procedures. Any insured will decide to bring suit rather than appealing a denial of benefits within the claims appeal framework when faced with the possibility that his claim will be time-barred if he loses the appeal.

It is a given that the insurer drafts the contract containing both the time limitation clause and the claim appeal procedure. The insurer is “the house” in the insurance game. We will not allow them to stack the deck by interpreting the interplay of these clauses as the insurers request today. We hold that where an insured voluntarily enters into a claim appeal procedure provided by the insurer, any time limitation contained within the insurance contract is tolled until that appeal procedure is concluded. The trial court erred in basing its grant of summary judgment on the time limitation clauses.

COORDINATION OF BENEFITS CLAUSES

Both insurance contracts contained coordination of benefit clauses. Article III, Section 2 of the Subscription Agreement with Blue Cross provides as follows:

Exclusions. Benefits shall not be provided under this Agreement for:
A. Services, facilities or supplies (1) covered by programs created by the laws of the United States ...

(Supplemental record [S.R.] at 56a.) Similarly, the Major Medical benefits provided Samuels under that same Blue Cross contract were subject to a coordination of benefits clause contained in Article V, Section E.:

Exceptions. The following shall in no event be considered Covered Medical Expenses:
E. Expenses to the extent paid, or which the Subscriber is entitled to have paid, or to obtain without cost, in accordance with any laws or regulations of any government____“[A]ny government” includes the Federal ... Government.

(S.R. at 80-81a.)

Likewise, the insurance contract between Samuels and Blue Shield contained a coordination of benefits clause which provides as follows:

COORDINATION OF BENEFITS—All benefits provided under this Agreement are subject to this provision ... (F) Service provided under any governmental program for which any periodic payment is made by the Subscriber shall always be the primary plan, except when prohibited by law, or when the Subscriber has elected Medicare secondary.

(Reproduced record [R.R.] at 28-30a.)

The validity of such coordination of benefit clauses was recently examined by this Court in Dutton v. Educators Mutual Life Insurance Co., 381 Pa.Super. 522, 554 A.2d 124, alloc. denied, 522 Pa. 619, 563 A.2d 888 (1989). When such clauses are clearly worded and conspicuous, they are enforceable. Id. 381 Pa.Super. at 523-24, 554 A.2d at 125.

Medicare is clearly a program created by the laws of the United States. Payments made under the Medicare program are made in accord with the laws and regulations of the Federal government. See generally 42 U.S.C.A. § 1301 et seq. The co-ordination of benefits clauses contained in the Blue Cross contract are sufficiently clear to be enforced. When Medicare paid for Samuels’ expenses incurred at the Hahnemann Hospital, Blue Cross became the secondary insurer for these expenses.

The Blue Shield co-ordination of benefits clause is even more clearly worded. It refers to Medicare by name. When Medicare paid for the services rendered to Samuels by the Hahnemann Hospital, Blue Shield also became the secondary insurer for these expenses.

Samuels contends that these co-ordination of benefits clauses do not apply because the descriptive literature which he received does not coincide with the policy language which it attempts to explain. The Dutton Court noted this problem. “[A] problem of notice may arise when a copy of the policy or literature furnished to the individual employee fails to include a limitation which appears in a master group policy.” Id. 381 Pa.Super. at 528, 554 A.2d at 127 (citing Group Insurance Policy—Exclusions—Notice, 6 ALR 4th 835 (1981)). The Dutton Court held any notice problem waived as it had not been presented to the trial court. Id. Here Samuels has consistently relied upon the language of the booklet distributed to him. Therefore, we hold this issue properly presented and will examine whether that language is controlling as to the exclusion of coverage at issue.

The language in the booklet relied upon by Samuels provides as follows:

COORDINATION OF BENEFITS
BLUE CROSS PROGRAM
This Blue Cross program is subject to a coordination of benefits provision. Should you or an enrolled dependent be entitled to any benefits or services from another source (excluding an individual insurance policy), benefits under this plan may be reduced to an amount, which together with all such other benefits, will not exceed 100% of any necessary, reasonable and customary item of expense covered under this plan or any other such plan. BLUE SHIELD PROGRAM
In addition to this program’s broad scope of benefits the program has a Coordination of Benefits provision____ When you receive services that are also covered under another plan, a determination is made as to which plan is “primary” and which plan is “secondary” ... If this plan is determined to be the secondary plan, payment for covered services shall not exceed the difference between the primary plan’s payment and the charge____ The primary plan will be determined in the following order:
(1) If the other plan does not include a provision to coordinate benefits, it will be the primary plan.
(2) If the other plan does include a provision to coordinate benefits then:
(A) The plan covering the patient as the employee/subscriber is the primary plan.
(D) When the determination cannot be made with the above rules, then the plan that has covered the patient for the longer period of time is the primary plan ...

(R.R. at 51-53a.) Additionally, that literature provided the following limitation applicable to the Blue Shield benefits:

WHAT IS NOT COVERED
You are not covered for:
payment made under Medicare when Medicare is primary or would have been made if you had enrolled for Medicare and claimed Medicare benefits.

(R.R. at 68-70a.) The literature does state that the information provided is subject to the actual contract language:

CLAIMS APPEAL PROCEDURE
... [I]t is important for you to understand the reasons for the denial of benefits in order to decide whether you want to appeal ... You should examine your group agreement, which is on file with your employer. The group agreement is a legal document setting forth the full terms and conditions of your hospital and professional coverages and excluded services.
This booklet has been prepared so that you may become acquainted with the Blue Cross and Blue Shield program available ... The program is subject to the terms of the group contract issued by Blue Cross of Greater Philadelphia and Pennsylvania Blue Shield.

(R.R. at 79a, appellee’s brief, exhibit A at 2, emphasis added).

Samuels’ argument may be summarized as follows: that the language in the booklet controls, that language is not clear and so is not enforceable; alternatively, if the language applies, Medicare is secondary, the Blue Cross and Blue Shield coverage is primary. We disagree on the initial, crucial point.

The booklet’s final section contains a disclaimer that its language governs the coverage between Samuels and the respective defendant insurers and specifically informs Samuels where the actual terms governing the coverage may be found: in the group contract issued by Blue Cross and Blue Shield which is on file with his employer. It is facetious for Samuels to claim in one portion of his brief that he has carefully examined the language as to the claims appeal procedure and that the time limitation of the contract should be tolled because he followed that procedure, then in a separate section deny that he was aware of the disclaimer contained in the description of the appeal procedure. This inconsistency dooms Samuels’ contention that the booklet’s language as to the coordination of benefits is controlling over the contractual language.

It is well settled that a failure to read a contract will not provide a defense to enforcement of the provisions of a contract. Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 305, 469 A.2d 563, 566 (1983) (citations omitted). We hold that the language of the group contract controls and is sufficiently clear and conspicuous to be enforced. As analyzed above, the coverage provided by Blue Cross and Blue Shield is secondary to the Medicare coverage.

Order affirmed.

      . Hahnemann’s preliminary objections to Samuels' complaint were granted on May 10, 1989. Samuels did not appeal that order; therefore, Hahnemann University is no longer a party to these proceedings.

      . We note that our holding today resembles the discovery rule which tolls statutes of limitations in many cases until the plaintiff is aware that he has a cause of action. See, Levenson v. Souser, 384 Pa.Super. 132, 557 A.2d 1081, alloc. denied, 524 Pa. 621, 571 A.2d 383 (1989); Corbett v. Weisband, 380 Pa.Super. 292, 551 A.2d 1059 (1988) alloc. denied, 524 Pa. 607, 569 A.2d 1367 (1989), and sub nom Corbett v. DeMoura, 524 Pa. 620, 571 A.2d 383 (1989).

      . Medicare has been subsequently amended to make Medicare the secondary insurer for these types of services. See, 42 U.S.C.A. § 1395y(b)( 1 )(B)(i) (Supp.1990).

      . Independence Blue Cross is the successor to Blue Cross of Greater Philadelphia.

      . We also note that Samuels’ reliance on Dutton is somewhat misplaced. The Dutton Court indicated that notice problems arise when a limitation contained in the contract is absent from the literature distributed to the insured. Dutton, supra 381 Pa.Super. at 528, 554 A.2d at 127. The co-ordination of benefits limitation is present in the literature distributed to Samuels, although the description of the operation of the limitation is different. To our reading, the detailed description in the booklet is more confusing than the contractual language it attempts to explain. The issue here is which specific language describing the limitation is applicable.


author:
OLSZEWSKI, Judge:
      POPOVICH, Judge,

text:
    592 A.2d 1316
    COMMONWEALTH of Pennsylvania v. Roy Lee QUINN, Appellant.
    Superior Court of Pennsylvania.
    Argued April 9, 1991.
    Filed June 17, 1991.
    Petition for Allowance of Appeal Denied Dec. 2, 1991.
    Arthur L. Jenkins, Jr., Norristown, for appellant.

      Patricia E. Coonahan, Asst. Dist. Atty., Cheltenham, for the Com., appellee.
    Before ROWLEY, President Judge, and CAVANAUGH, CIRILLO, OLSZEWSKI, MONTEMURO, BECK, TAMILIA, POPOVICH and HUDOCK, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence. Roy Lee Quinn was found guilty of driving with an expired operator’s license pursuant to 75 Pa.C.S.A. § 1501(a) (Purdon’s Supp.1990). Timely post-trial motions were filed and denied, and Quinn was sentenced to pay a fine and costs. This timely appeal followed.

On appeal, Quinn asserts that imposition of sentence by the trial court violated the statute of limitations contained in 42 Pa.C.S.A. § 5553(e). Quinn argues that despite any responsibility for delay attributable to him, § 5553(e) mandates that all proceedings in the court of common pleas for summary motor vehicle offenses must be completed within two years of the date of the purported offense. We do not agree and affirm the judgment of sentence.

The argument advanced by Quinn requires a close examination of the procedural history of this case. On May 10, 1987, Quinn was cited for violating § 1501(a). (Trial court opinion at 3.) At a hearing on June 3, 1987, Quinn was found guilty. (Id.) Quinn had thirty days to appeal that decision to the court of common pleas; he did not file any appeal. (Id.) On December 15, 1987, Quinn filed a petition to file an appeal nunc pro tunc; a hearing on that petition, scheduled for February 19, 1988, was rescheduled at Quinn’s request. (Id.) Quinn’s petition was granted following a hearing on April 15, 1988, and his appeal was filed April 25, 1988. (Id. at 3-4.) The matter was called for trial on April 20, 1989, at which time Quinn motioned for the case to be relisted. (Id. at 4.) On May 3, 1989, following a hearing, Quinn was found guilty of driving with an expired operator’s license. (Id.) On May 11, 1989, Quinn filed post-trial motions raising the bar of 42 Pa.C.S.A. § 5553(e). On May 31, 1989, the trial court denied the post-trial motions and imposed sentence.

In Commonwealth v. Jannenga, 335 Pa.Super. 77, 81, 483 A.2d 963, 965 (1984), this Court held that § 5553(e) was mandatory; any failure to complete proceedings against an accused for a summary motor vehicle offense within two years of the offense required discharge of the accused. The Jannenga Court noted that no portion of the delay present in that case was attributable to the defendant. Id. Rather, the trial court admitted the delay in sentencing had been “court related.” Id.

Subsequently, this Court was faced with a procedural history similar to the case sub judice. Commonwealth v. Stover, 372 Pa.Super. 35, 538 A.2d 1336, alloc. denied, 520 Pa. 604, 553 A.2d 967 (1988). Stover had failed to appeal from the initial determination and later petitioned for leave to appeal nunc pro tunc. Id., 372 Pa.Superior Ct. at 37, 538 A.2d at 1337. The Stover Court did not determine the effect of the nunc pro tunc appeal, as Stover was not sentenced until more than two years after trial de novo in the court of common pleas and the limitation issue was waived due to failure to raise it in the trial court. Id., 372 Pa.Superior Ct. at 38-40, 538 A.2d at 1338-1339. Therefore, Stover does not address the precise issue before us today.

Recently, this Court held Jannenga to be controlling precedent where no portion of the delay is attributable to the accused. Commonwealth v. Markley, 375 Pa.Super. 231, 234, 544 A.2d 72, 74 (1988). Like Jannenga, Markley presented a case where the accused was in no way responsible for the delay. Id. (Del Sole, J., concurring).

We find both Jannenga and Markley distinguishable. Unlike those cases, Quinn was solely responsible for a delay of five months in these proceedings due to his failure to file a timely appeal to the court of common pleas. We will not attribute to the legislature an intent that an accused be allowed to take advantage of a delay he has caused. See, 1 Pa.C.S.A. § 1922(1) (Purdon’s Supp.1990; when construing a statute, it is presumed that the General Assembly does not intend an unreasonable result). We, therefore, hold today that any period of delay directly attributable to the accused tolls the limitation period of § 5553(e). To the extent that either Jannenga or Markley could be argued to stand for a contrary interpretation, they are overruled.

To adopt the interpretation urged by Quinn would ultimately work to the disadvantage of those accused of summary motor vehicle offenses. Any court would be wary of granting a petition to appeal nunc pro tunc if such appeals would lead to a possible bar of the proceedings. Thus, those deserving of a chance to file late appeals might be denied a hearing on the merits of their case. Further, Quinn’s position also opens the door to an accused deliberately delaying a proceeding in order to obtain the benefit of the statutory bar. We will not so encourage dilatory tactics.

We are aware that Quinn contests the trial court’s findings that he. was responsible for certain portions of the delay following the grant of his petition to appeal nunc pro tunc. We need not resolve this question, as Quinn is solely responsible for the failure to timely appeal the decision of the district justice to the court of common pleas. This five-month delay, attributable entirely to Quinn’s actions, tolls the statute for a period sufficient to prevent the statutory bar.

Judgment of sentence affirmed.

Dissenting statement by POPOVICH, J.

POPOVICH, Judge,

dissenting:

I respectfully dissent from the opinion of the majority. I would vacate the judgment of sentence since appellant was sentenced on May 31, 1990, over two years after he was originally cited under 75 Pa.C.S.A. § 1501(a), in violation of 42 Pa.C.S.A. § 5553(e).

42 Pa.C.S.A. § 5553(e) specifically provides: “No proceedings shall be held or action taken pursuant to a summary offense under Title 75 subsequent to two years after the commission of the offense.” The majority ignores the mandatory language of § 5553(e), instead opting for an interpretation of § 5553(e) similar to that normally employed in a P.R.Crim.P. 1100 analysis. I cannot find any statutory authority for such a result. Moreover, the majority has failed to cite any legislative history which would support its conclusion that our representatives did not intend an absolute limit of two years for prosecution of summary traffic violations.

Penal statutes, outside of the Crimes Code, are to be strictly construed. 1 Pa.C.S.A. § 1928(b)(1); Lurie, 569 A.2d at 332; Commonwealth v. Wooten, 519 Pa. 45, 53, 545 A.2d 876, 879 (1988). The language of the statute in question is unquestionably unambiguous. All proceedings must be complete in a summary offense under Title 75 before the expiration of two years. Such was not the case presently.

In sum, I would vacate the judgment of sentence since it was entered more than two years after appellant was cited under Title 75. If the legislature finds this result “absurd”, it is within its exclusive province, not ours, to correct the perceived problem.

      . That section provides as follows:
      § 5553. Summary Offenses Involving Vehicles
      ******
      (e) Disposition of proceedings within two years.—No proceedings shall be held or action taken pursuant to a summary offense under Title 75 subsequent to two years after the commission of the offense.
      42 Pa.C.S.A. § 5553(e) (Purdon’s Supp.1990).

      . See Commonwealth v. Lurie, 524 Pa. 56, 63, 569 A.2d 329, 332 (1990); 18 Pa.C.S.A. § 105 ("... provisions of this title shall be construed according to the fair import of their terms____”).


author: BECK, Judge: HOFFMAN, Judge,

text:
    592 A.2d 1318
    COMMONWEALTH of Pennsylvania, Appellant, v. Christopher CARSON.
    Superior Court of Pennsylvania.
    Argued March 7, 1991.
    Filed June 17, 1991.
    Petition for Allowance of Appeal Denied Nov. 13, 1991.

      Eric Schoenberg, Asst. Dist. Atty., Philadelphia, for the Com., appellant.
    Samuel C. Stretton, West Chester, for appellee.
    Before BECK, POPOVICH and HOFFMAN, JJ.
   BECK, Judge:

The case raises the issue of the sufficiency of the evidence where a defendant has been found guilty of unauthorized use of a motor vehicle and receiving stolen property. Christopher Carson was tried and convicted in a nonjury trial of receiving stolen property and unauthorized use of a motor vehicle. Subsequently the trial court found that the evidence was insufficient to support the verdict and granted a motion to arrest judgment, discharging the defendant. The Commonwealth appeals. We reverse.

The applicable standard of review for claims which challenge the sufficiency of the evidence is well-settled. Since the Commonwealth is the verdict winner, the reviewing court must view all the evidence at trial, as well as all reasonable inferences to be drawn therefrom, in the light most favorable to the Commonwealth. We must determine whether the trier of fact could have found that each element of the offense was proven beyond a reasonable doubt. Both direct and circumstantial evidence must be considered equally when assessing the sufficiency of the evidence. Commonwealth v. French, 396 Pa.Super. 436, 578 A.2d 1292 (1990). Furthermore the same standard is applicable whether the appeal is from a judgment of sentence or an arrested judgment. Finally, “[t]he latitude of the trial judge in passing upon a nonjury verdict is no greater than the authority of a trial judge to set aside a jury verdict.” Commonwealth v. Driver, 343 Pa.Super. 13, 493 A.2d 778, 779 (1985).

Viewed favorably to the Commonwealth, the evidence upon which Carson was convicted was as follows. At approximately 10:30 p.m., Willie James parked his car directly across the street from his home in Philadelphia. At about 1:30 a.m., James was awakened to the sound of screeching tires. He looked out his window, saw that his car was gone and immediately called the police. About five minutes later the police arrived and James reported his car stolen.

As a result of James’ report, Officer John McCafferty and his partner immediately began patrolling the area near James’ home. In a short time, the officers spotted the car parked on the sidewalk a few streets away from where it had been stolen. The officers, who were in an unmarked car, radioed for uniformed officers in a marked patrol car. When Officer McCafferty saw the patrol car approaching the stolen vehicle, he and his partner also started to drive towards it. McCafferty saw three men leave the stolen car, look in his direction and run. One of them was Carson. Officer McCafferty chased Carson and caught up with him a short distance later. The officer never lost sight of the fleeing appellant.

Carson had gotten out of the car from the front passenger seat. The car had a broken steering column and a smashed right vent window. Just prior to the time that Carson and his companions exited the car and fled, the car had been parked on the sidewalk with the motor off and the doors closed. Carson’s arrest took place approximately twenty minutes after James had first been awakened by the sound of screeching tires.

After the Commonwealth presented its evidence, the court denied Carson’s demurrer. Carson then testified. He denied any connection with the stolen vehicle. In fact, he claimed that he was not in the car that night. Instead, his testimony was that he was walking in a normal fashion up the steps to his home in the vicinity where the stolen vehicle was parked. He claimed that the police inexplicably stopped him, felt his chest and, simply because his heart was beating quickly, arrested him. Although Carson claimed that at least three other people, including his girlfriend and her brother, witnessed this event, no one else testified on his behalf at trial.

Carson was convicted of receiving stolen property and unauthorized use of a motor vehicle. He then filed post-verdict motions challenging the sufficiency of the evidence. After argument and reconsideration, the trial court entered an order arresting judgment. The trial court concluded that the Commonwealth failed to establish beyond a reasonable doubt that Carson had the requisite criminal intent or that he possessed or “operated” the vehicle. According to the trial court, the evidence showed only that he was present in the vehicle. Under the facts of the case, the trial court’s decision cannot be upheld.

In order to convict Carson of receiving stolen property, it was necessary for the Commonwealth to prove beyond a reasonable doubt that the vehicle was stolen, that Carson was in possession of it and that he had “guilty knowledge;” that is, he knew or had reason to know that it was stolen. See In Interest of Scott, 388 Pa.Super. 550, 566 A.2d 266, 267 (1989); Commonwealth v. Grabowski, 378 Pa.Super. 454, 549 A.2d 145, 148 (1988), appeal denied 522 Pa. 583, 559 A.2d 526 (1989).

In addition, a conviction for unauthorized use of a vehicle must be predicated on proof that the defendant operated the vehicle without the owner’s consent and that the defendant knew or had reason to know that he lacked the owner’s permission to operate the vehicle. See In Interest of Scott, supra; Commonwealth v. Dunlap, 351 Pa.Super. 43, 505 A.2d 255 (1986).

In the instant case, the Commonwealth proved by direct evidence that the vehicle was stolen and that James had not given Carson permission to operate the vehicle. This is undisputed. The trial court, however, in granting arrest of judgment determined that under the receiving stolen property charge the Commonwealth failed to prove Carson’s guilty knowledge and his possession of the car. In addition, the trial court concluded that under the unauthorized use of a motor vehicle charge the Commonwealth failed to prove Carson’s guilty knowledge that he was operating the car without the owner’s consent and that he was “operating” the car. We disagree.

As noted above, the intent requirement, i.e., the requisite knowledge that the car was stolen can be shown entirely through circumstantial evidence. While it is clear that mere possession without more is insufficient to show that the defendant knew or should have known that the property was stolen, other facts can make the inference of guilty knowledge reasonable, even compelling. Such circumstances include but are not limited to the unexplained possession of recently stolen property, flight from the police or other evidence indicating an attempt to avoid capture and the condition of the property indicating a theft.

Not one but all of the above additional circumstances were present in the instant case. Carson was in a vehicle which the factfinder could reasonably infer had been stolen only minutes earlier. In addition, as soon as the patrol car and the unmarked police car approached the stolen vehicle, Carson and his companions exited the vehicle, looked at the officers and fled. This evidence of flight corroborates the inference of guilty knowledge. See In Interest of Scott, supra; Commonwealth v. Phillips, 258 Pa.Super. 109, 392 A.2d 708 (1978); Commonwealth v. Murray, supra. Compare Commonwealth v. Scudder, 490 Pa. 415, 416 A.2d 1003, 1005-1006 (1980) (no evidence that defendant, who was a passenger in a stolen van, attempted to or concurred in the judgment to evade the police; only operator of van attempted to flee, therefore guilty knowledge of passenger could not be inferred).

Moreover, the stolen car had a broken vent window on the passenger side of the car and a broken steering column. Prom these physical features the fact finder could infer that Carson knew or should have known that the vehicle was stolen. See In Interest of Scott, supra (broken steering column); Commonwealth v. Phillips, supra (motorbike’s serial number marred and bike obviously repainted); Commonwealth v. Murray, supra (ignition wires of car “pulled down”). Compare Commonwealth v. Dunlap, supra, 505 A.2d at 257 (evidence of guilty knowledge was insufficient where car had “no damage to the dashboard or steering column which would indicate that it had been started or operated unlawfully”).

In our view, these circumstances taken together clearly support the inference that Carson had guilty knowledge that the car was stolen and satisfies the mens rea under the receiving stolen property charge. The mens rea burden under the unauthorized use of a motor vehicle charge is not as strict as the one for receiving stolen property. It, therefore, follows that the Commonwealth necessarily met its burden for the lesser mens rea required for unauthorized use of a vehicle. For the intent element of the latter offense the Commonwealth must show that the defendant was reckless with respect to the owner’s lack of consent in that he had consciously disregarded a substantial and unjustifiable risk that the owner has not consented. Commonwealth v. Hogan, 321 Pa.Super. 309, 468 A.2d 493, 495-496 (1983). As this court previously has noted:

If the unexplained possession of recently stolen property will support an inference of guilty knowledge of its theft, will it not support with even greater strength an inference of recklessness with respect to the owner’s lack of consent to operate a recently stolen automobile? The answer is obvious, and so this Court has held.

Commonwealth v. Hogan, supra, 468 A.2d at 497 (emphasis in original).

The only remaining question, therefore, with respect to the sufficiency of the evidence for both charges is whether the Commonwealth established that Carson had the requisite dominion and control over the car to show that he possessed it and “operated” it jointly with his companions. Again the answer to this question depends on the totality of the circumstances. This court has held that the doctrine of joint possession applies when the “... totality of the circumstances justifies a finding that all of the occupants of the vehicle were acting in concert____” Commonwealth v. Murray, supra, 371 A.2d at 913, quoting Commonwealth v. Schaffer, 447 Pa. 91, 105, 288 A.2d 727, 735, cert. denied, 409 U.S. 867, 93 S.Ct. 164, 34 L.Ed.2d 116 (1972).

Carson claimed and the trial court agreed that since the Commonwealth concededly did not show that he was in the driver’s seat of the stolen car, his status as a passenger could not support conviction. Underlying the trial court’s decision to arrest judgment is the erroneous assumption that only the driver can possess or operate a stolen car. This clearly is not the law. We agree with the Commonwealth that this court’s decisions in Commonwealth v. Murray, supra, and In Interest of Scott, supra, control the result here. In Murray the principle was established that the Commonwealth need not prove that the defendant was actually driving the vehicle in order to show possession. In Murray the fact that the Commonwealth proved that defendant was either driving or riding in a vehicle he knew was stolen and then attempted escape along with his companion was sufficient to apply the doctrine of joint possession and to convict defendant of receiving stolen goods.

The facts in In Interest of Scott are virtually identical to the facts here and establish that an offender need not actually be driving a vehicle to be convicted of unauthorized use. There, the defendant, a juvenile, was adjudicated delinquent for receiving stolen property and unauthorized use of a vehicle. The defendant was the passenger in a car which had been stolen twelve hours earlier. The stolen car was involved in a number of traffic violations which were observed by the police and the police gave chase. The driver and the defendant' fled from the car in different directions and defendant was apprehended. The car was later discovered to have a broken steering column. This court found the totality of the circumstances sufficient to infer dominion and guilty knowledge on the part of the passenger beyond a reasonable doubt. We find nothing at all to distinguish the instant case from Scott. In fact, if anything, this case presents a more compelling inference of guilt than was present in Scott. Carson and his companions were in a stolen car only a few blocks from the site of the theft, a short time after the theft occurred. The car had obvious signs of having been taken and driven illegally. When approached by the police, all three occupants fled.

The trial court’s arrest of judgment is reversed and the case is remanded for further proceedings. Jurisdiction is relinquished.

HOFFMAN, J., files a dissenting statement.

HOFFMAN, Judge,

dissenting:

I respectfully dissent. The majority opinion relies on Commonwealth v. Murray, 246 Pa.Super. 422, 371 A.2d 910 (1977), and In the Interest of Scott, 388 Pa.Super. 550, 566 A.2d 266 (1989), for the proposition that the Commonwealth may prove possession despite the fact that appellant was not actually the driver of the vehicle. The majority apparently holds that his presence plus flight is enough to allow us to infer possession. See Majority Opinion, supra. However, in my view, these cases clearly are distinguishable. In both cases our Court permitted an inference of joint possession where the accused was not actually driving the stolen vehicle. See In the Interest of Scott, supra, 388 Pa.Superior Ct. at 554-55, 566 A.2d at 268-69; Commonwealth v. Murray, supra 246 Pa.Super. at 429, 371 A.2d at 913. In Murray, for example, we stated that

[ujnder the circumstances, the trier of fact found that appellant was either driving or riding in a vehicle that he knew was stolen. This, coupled with the attempted escape along with his companion, was sufficient basis for the fact finder to apply the doctrine of joint possession, which is appropriate when the “... totality of the circumstances justify a finding that all of the occupants of the vehicle were acting in concert____” [citation omitted]

Commonwealth v. Murray, supra. Similarly, the Scott court relied on Murray to establish that the Commonwealth need not prove actual possession to prove control of the vehicle. See In the Interest of Scott, supra 388 Pa.Super. at 555-56, 566 A.2d at 269. The key to both Murray and Scott was that the charges against the defendant included criminal conspiracy, and it was the inference deriving from the defendant’s acting in concert that supported the convictions.

Here, appellant was not charged with criminal conspiracy. A joint possession analysis is inappropriate where no evidence shows that the occupants of the vehicle were acting in concert. See Commonwealth v. Murray, supra. Without the inference that was permitted in the earlier cases, the fact that appellant was a passenger in the vehicle and that he attempted to flee provide an insufficient basis to prove possession or control of the vehicle. Therefore, I would affirm the trial court’s arrest of judgment.

Accordingly, I must dissent.

      . 18 Pa.C.S.A. § 3925 (Purdon 1983).

      . 18 Pa.C.S.A. § 3928 (Purdon 1983).

      . See Commonwealth v. Williams, 468 Pa. 357, 365, 362 A.2d 244, 248 n. 7 (1976); Commonwealth v. Dunlap, supra.

      . This court has noted that relevant considerations which may support an inference of guilty knowledge include "an accused’s conduct at arrest and conduct while in possession; the time elapsed between the accused’s possession and the theft; the type of property; the situs of the theft and the situs of the possession; the value of the property and the price paid for the property; and the quantity of the property." Commonwealth v. Grabowski, supra, 549 A.2d at 148.

      . Viewing the evidence in the light most favorable to the Commonwealth, as we must, we think it is reasonable to infer that James’ automobile was stolen at about 1:30, when he heard the sound of screeching tires. The inference is supported by the reasonable assumption that anyone driving a stolen vehicle would attempt to drive away quickly. In addition, the inference that the theft had occurred very recently is supported by the fact that the car was located only a few streets away from James' home. In any event, even if the theft had not occurred at 1:30, it certainly occurred no earlier than 10:30 when James parked his car. The three hour time lapse would still make Carson’s possession "recent” for purposes of inferring guilty knowledge. See Commonwealth v. Murray, 246 Pa.Super. 422, 428, 371 A.2d 910, 912 (1977) (vehicle had been stolen at most four hours prior to defendant’s arrest; clearly constituted "recent” possession and obviously an insufficient time for vehicle to have assimilated into ordinary market channels for automobiles); see also Commonwealth v. Williams, supra note 3 (possession of a vehicle twelve days after it was stolen was “recent”); Commonwealth v. Brabham, 268 Pa.Super. 35, 407 A.2d 424 (1979) (where defendant was arrested twelve hours after vehicle was stolen, possession was recent).

      . As this court stated in a similar context, “the geographic and temporal proximities are too close to admit of any doubt, much less a reasonable one." Commonwealth v. Marshall, 254 Pa.Super. 275, 278, 385 A.2d 1017, 1018 (1978).