author: BROSKY, Judge. WIEAND, Judge,

text:
    572 A.2d 1279
    COMMONWEALTH of Pennsylvania v. John LOTT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dee. 4, 1989.
    Filed April 10, 1990.

      Mitchell S. Strutin, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for the Com., appellee.
    Before CAVANAUGH, BROSKY and WIEAND, JJ.
   BROSKY, Judge.

This appeal is from the Order of the PCHA court dismissing appellant’s post-conviction petition.

Appellant charges his trial counsel with ineffectiveness because the latter failed to object to a purportedly erroneous jury instruction on alibi. Appellant claims that the trial court’s alibi charge was improper because it did not incant the “even if not wholly believed” language of Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980), and Commonwealth v. Willis, 520 Pa. 289, 553 A.2d 959 (1989). We disagree that the charge was improper and therefore affirm the Order of the post-conviction court.

The complained-of charge reads as follows: [Ojbviously, of course, the Defendant cannot be guilty unless he was at the scene of the alleged crime. The Defendant has offered evidence to show that he was not present at the crime, but rather at Robert Alderman’s house at an Amway demonstration and birthday get together. You should consider this evidence and alibi along with all the other evidence in the case in determining whether the Commonwealth has met its burden of proving beyond a reasonable doubt that a crime was committed and that the Defendant himself committed it. The evidence presented by the defense that he was not present, if you believe it, either by itself or together with other evidence may be sufficient to raise a reasonable doubt of the Defendant’s guilt in your minds. If you have a reasonable doubt of the Defendant’s guilt, you must find him not guilty.
On the other hand, you may choose to disbelieve and disregard the testimony concerning alibi and accept as true the testimony of the Commonwealth witnesses that the Defendant was present at the scene of the crime.

N.T., 12/6/82, 735-36.

A trial court need not use the precise “even if not wholly believed” language of the above authorities if the instruction makes it clear that the defendant’s failure to prove alibi is not tantamount to guilt. Commonwealth v. Johnson, 336 Pa.Super. 1, 485 A.2d 397 (1984). It is therefore not necessary to incant the Pounds/Willis language in an alibi charge if the Standard Jury Instruction or its equivalent is given. Commonwealth v. Payne, 385 Pa.Super. 9, 559 A.2d 951 (1989). In this case, the court’s instruction essentially parallels that of Pa.S.S.J.1. 3.11. This instruction was not disapproved or otherwise rendered inaccurate by the Supreme Court’s decision in Willis.

In Willis, the trial court erroneously instructed the jury that no alibi evidence had been presented other than Willis’ own testimony. After defense counsel objected to this misinformation, the trial court, in effect, merely summarized the alibi testimony of the witnesses and then stated, “Well, it may be an alibi and there may be some question about the time. But, in any event, I am explaining it [sic] to you now what my recollection was of the evidence. Of course, your recollection does govern.” 520 Pa. at 293, 553 A.2d at 961.

The Willis instruction does not at all follow the Suggested Jury Instruction, supra, nor is it even remotely comparable to the instruction given by the trial court instantly. Therefore, Willis is distinguishable on that basis. Moreover, and contrary to appellant’s assertions, Willis does not stand for the proposition that a jury instruction on alibi which fails to recite the phrase “even if not wholly believed” warrants a new trial because of an unfavorable inference that a defendant is guilty because he failed to prove the defense. Willis only holds that an alibi instruction must be given to assure the jury that the failure to prove the defense is not an inference of guilt.

In Commonwealth v. Jones, 386 Pa.Super. 467, 563 A.2d 161 (1989), an en banc panel of this court, relying on Commonwealth v. Johnson, supra, and Commonwealth v. Bright, 361 Pa.Super. 261, 522 A.2d 573 (1987), rejected the identical position raised by appellant here. Johnson held that the Supreme Court in Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980), did not intend to create a standard alibi instruction requiring recitation of the phrase “even if not wholly believed.” Instead, the Johnson court held, the Pounds safeguards are preserved if the trial court clearly states that the accused’s failure to prove alibi is not tantamount to guilt. See also Commonwealth v. Payne, supra. Moreover, this court in Commonwealth v. Bright, supra, advised that the argument typified here merely contests the form of the charge rather than its substance. We agree with Jones and its forerunners. The Jones court approved the type of charge given here. Therefore, we perceive no error in the alibi charge as given. For this reason, we reject appellant’s claim of ineffectiveness of counsel in this regard. Commonwealth v. Jones, supra.

Because appellant’s claim has failed to cross the threshold of arguable merit, we affirm the Order of the PCHA court.

Order affirmed.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge,

dissenting:

In this appeal from an order denying PCHA relief without a hearing, the appellant contends that his trial counsel was constitutionally ineffective because he failed to object to or correct an erroneous alibi instruction by the trial court. The majority holds that there is no merit in appellant’s underlying contention that the trial court’s alibi instruction was erroneous. I respectfully dissent. The trial court’s alibi instruction, in my opinion, was contrary to the decided cases.

John Lott appeared before a jury charged with murder and criminal conspiracy. At trial, he offered an alibi defense and produced several alibi witnesses who testified that at the time of the shooting Lott was attending an Amway demonstration and party. With respect to this alibi testimony, the trial court instructed the jury as follows:

[Ojbviously, of course, the Defendant cannot be guilty unless he was at the scene of the alleged crime. The Defendant has offered evidence to show that he was not present at the crime, but rather at Robert Alderman’s house at an Amway demonstration and birthday get together. You should consider this evidence and alibi along with all the other evidence in the case in determining whether the Commonwealth has met its burden of proving beyond a reasonable doubt that a crime was committed and that the Defendant himself committed it.
The evidence presented by the defense that he was not present, if you believe it, either by itself or together with other evidence may be sufficient to raise a reasonable doubt of the Defendant’s guilt in your minds. If you have a reasonable doubt of the Defendant’s guilt, you must find him not guilty.
On the other hand, you may choose to disbelieve and disregard the testimony concerning alibi and accept as true the testimony of the Commonwealth witnesses that the Defendant was present at the scene of the crime, (emphasis added)

Defense counsel did not object to this instruction, and Lott was found guilty of murder of the third degree and criminal conspiracy. Trial counsel was thereafter permitted to withdraw, and post-trial motions were filed on appellant’s behalf by another lawyer. The post-trial motions did not contain a challenge to the trial court’s alibi instruction to the jury or to trial counsel’s stewardship for failing to correct the alleged error appearing therein. Post-trial motions were denied, and Lott was sentenced to serve a term of imprisonment. On direct appeal, the Superior Court affirmed. Commonwealth v. Lott, 355 Pa.Super. 634, 509 A.2d 1321 (1986). A petition for allocatur was denied by the Supreme Court.

On December 31, 1987, Lott filed a PCHA petition in which he alleged that the trial court’s statement of the law pertaining to the defense of alibi had been erroneous and that prior counsel had been constitutionally ineffective for failing to achieve for him a trial at which the jury was correctly instructed regarding the law pertaining to the defense which he had offered. The PCHA court dismissed the petition without a hearing, and Lott appealed.

The law pertaining to the defense of alibi has been established by the Supreme Court in Commonwealth v. Bonomo, 396 Pa. 222, 151 A.2d 441 (1959); Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980); and Commonwealth v. Willis, 520 Pa. 289, 553 A.2d 959 (1989). A trial court is required to instruct the jury in such cases that it should acquit if the defendant’s alibi evidence, even if not wholly believed, raises a reasonable doubt of his presence at the scene of the crime at the time when it was committed. “[S]uch an instruction is necessary due to the danger that the failure to prove the defense will be taken by the jury as a sign of the defendant’s guilt.” Commonwealth v. Pounds, supra, 490 Pa. at 633-634, 417 A.2d at 603 (footnote omitted). It has been held, however, that the trial court’s charge need not use the precise language of these decisions and that the safeguards established thereby are preserved so long as the trial judge makes it clear that the defendant’s failure to prove an alibi is not tantamount to guilt. Commonwealth v. Johnson, 336 Pa.Super. 1,18, 485 A.2d 397, 406 (1984). See also: Commonwealth v. Payne, 385 Pa.Super. 9, 559 A.2d 951 (1989); Commonwealth v. Quarles, 361 Pa.Super. 272, 522 A.2d 579 (1987); Commonwealth v. Bright, 361 Pa.Super. 261, 522 A.2d 573 (1987).

In Commonwealth v. Jones, 386 Pa.Super. 467, 563 A.2d 161 (1989), the trial court had instructed the jury regarding defendant’s alibi evidence as follows:

You should consider this evidence along with other evidence in the case in determining whether the Commonwealth has met its burden of proving beyond a reasonable doubt that the crime was then committed and that the defendant committed it or took part therein.
The defendant’s alibi evidence that he was not present may, in itself, work for acquittal, or it, together with other evidence, may be sufficient to raise a reasonable doubt in your mind as jurors. Of course, the alibi witnesses ought to be evaluated by you like you do that of any other witness. You apply to them all the standards that I’ve indicated you should apply in arriving at the truths____

This instruction, it will be observed, did not tell the jury that the defendant’s alibi evidence could create a reasonable doubt only if the jury believed such evidence. The Superior Court, with two judges dissenting, held that the instruction was sufficient to comply with the requirement of Commonwealth v. Pounds, supra. The Jones Court did not cite or refer to the Supreme Court decision in Commonwealth v. Willis, supra.

In the instant case, the trial court told the jury that the evidence of alibi, “if you believe it, either by itself or together with other evidence may be sufficient to raise a reasonable doubt of the Defendant’s guilt in your minds.” This was not a correct statement of the law. Indeed, it was diametrically opposed to the law as stated in Pounds and Willis that alibi evidence, even if not wholly believed, may be sufficient to raise a reasonable doubt of the defendant’s presence at the scene of the crime when it was committed.

The instant case was tried in December, 1982. Although Willis had not then been decided by the Supreme Court, the decision in Pounds had been filed on July 3, 1980. Defense counsel had a responsibility to present his client’s alibi defense in a factually persuasive manner and submit it to the jury upon legally sound instructions from the court. At the very least, he should have been aware of and informed the trial court regarding the rule of law to be applied to his client’s defense, as it had been pronounced by the Supreme Court. To fail to do so was ineffective representation. Commonwealth v. Roxberry, 381 Pa.Super. 314, 553 A.2d 986 (1988), alloc. granted, 523 Pa. 649, 567 A.2d 652 (1989); Commonwealth v. Brunner, 341 Pa.Super. 64, 491 A.2d 150 (1985).

It seems clear, therefore, that there is arguable merit in appellant’s contention that prior counsel should have acted to preserve his rights according to principles of law stated by the highest court in this Commonwealth. Before a claim of ineffectiveness can be sustained, however, “ ‘it must be determined that, in light of all the alternatives available to counsel, the strategy actually employed was so unreasonable that no competent lawyer would have chosen it. We inquire whether counsel made an informed choice, which at the time the decision was made reasonably could have been considered to advance and protect defendant’s interests.’ ” Commonwealth v. Litzenberger, 333 Pa.Super. 471, 481, 482 A.2d 968, 973 (1984), quoting Commonwealth v. Dunbar, 503 Pa. 590, 596, 470 A.2d 74, 77 (1983) (citations omitted).

In the instant case, appellant’s PCHA petition was dismissed without hearing because the court found no arguable merit in appellant’s underlying claim. This was error. Where the PCHA court has erroneously dismissed a petition without a hearing, a reviewing court will normally remand for an evidentiary hearing to permit counsel to explain, if possible, the course of conduct pursued at trial. See: Commonwealth v. El-Amin, 321 Pa.Super. 46, 467 A.2d 886 (1983); Commonwealth v. Murray, 315 Pa.Super. 417, 462 A.2d 264 (1983). Here, however, trial counsel’s default can only be explained by that ineffectiveness which renders the verdict unreliable. Appellant’s principal defense to the charge that he participated in the shooting was that he was elsewhere at the time of the shooting. Therefore, he was entitled to have the jury instructed correctly with regard to the meaning and significance of his alibi defense. The applicable law was unambiguous; it had been set forth clearly by the Supreme Court in Commonwealth v. Pounds, supra. To fail to inform the trial court of this law, which was crucial to his client’s defense, and to fail to correct the trial court when it erred could not possibly have been calculated to serve appellant’s interest. To present an alibi defense and then to allow the jury to be instructed erroneously and prejudicially must necessarily be equated with ineffectiveness. Commonwealth v. Roxberry, supra, 381 Pa.Super. at 320-321, 553 A.2d at 989-990. Under such circumstances, a determination of ineffectiveness can be made without remanding for an evidentiary hearing.

Similarly, there is no strategic justification for post-trial counsel’s failure to raise this issue at the first opportunity after entering his appearance on appellant’s behalf. Following the jury’s verdict, new counsel was appointed to represent appellant and raised fourteen (14) instances of alleged ineffectiveness on the part of trial counsel. These averments of ineffective assistance were rejected by the trial court and also by the Superior Court on direct appeal. Conspicuously absent from these averments of ineffectiveness was trial counsel’s failure to object to the trial court’s erroneous instruction regarding appellant’s alibi defense. In view of the law stated by the Supreme Court in Commonwealth v. Pounds, supra, appellate counsel should have raised and preserved this dereliction on the part of trial counsel. His failure to do so was not reasonably calculated to serve appellant’s interests.

Finally, the prejudice to appellant is clear. He presented several alibi witnesses, only to have the trial court erroneously instruct the jury that alibi evidence would be sufficient to raise a reasonable doubt as to guilt only if the jury believed the alibi testimony. For trial counsel to fail to correct this erroneous instruction had the necessary effect of depriving appellant of a fair trial, a trial calculated to achieve an informed and just result.

I would reverse and remand for a new trial.


source: Caselaw Access Project

author: HOFFMAN, Judge: ROWLEY, Judge,

license: Public Domain

text:
    572 A.2d 1283
    COMMONWEALTH of Pennsylvania v. Henry Arthur RICH, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan.. 17, 1990.
    Filed April 12, 1990.

      Charles Rector, Lemoyne, for appellant.
    Roseann B. Termini, Asst. Dist. Atty., Harrisburg, for Com., appellee.
    Before ROWLEY, FORD ELLIOTT and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant pleaded guilty to charges of theft by deception, criminal conspiracy, forgery, tampering with records or identification, theft by unlawful taking or disposition, and unlawful use of a computer. Appellant later was sentenced to concurrent five-to-ten-year terms of imprisonment for conspiracy and forgery, as well as lesser concurrent terms of incarceration for theft by deception, and unlawful use of a computer. The five-to-ten-year sentences imposed for conspiracy and forgery were the maximum terms allowable by law, and the minimum sentence of five years was three and one-third times as long as the aggravated minimum sentence suggested in the sentencing guidelines. On this appeal from the judgment of sentence, appellant raises a number of claims concerning the discretionary aspects of the sentence imposed. For the reasons set forth below, we affirm the judgment of sentence for theft by deception and unlawful use of a computer, we vacate the judgment of sentence for forgery and criminal conspiracy, and we remand the case for resentencing.

Appellant was employed as a computer operator for Control Data Corporation. The Pennsylvania State Lottery contracted with Control Data to monitor and operate the lottery. Through his position with Control Data, appellant had access to the lottery’s computer mainframe. The charges in this case arise from appellant’s actions in manipulating the lottery computer mainframe to produce what appeared to be a winning $15,000,000 ticket for the July 15, 1987 Pennsylvania “Super 7” Lottery. Before producing the fake ticket, appellant had solicited the aid of co-conspirator Mark S. Herbst. Herbst presented the fake ticket to lottery officials on April 28, 1988. Control Data initially verified the ticket as the winning ticket, and a $469,989.55 check, representing the first installment of the lottery award, was issued to Herbst. Before this check was cashed, however, lottery officials determined that the ticket was fake. When confronted by lottery officials on May 1, 1988, Herbst admitted his involvement, and agreed to cooperate in the investigation. The next day, Herbst was videotaped as he presented appellant with $5,000 cash, as the first installment of his share of the winnings. Appellant was arrested, waived his right to counsel, and gave a statement in which he acknowledged that he had produced the fake ticket, given it to Herbst, and that the two had planned to divide the proceeds.

On October 19, 1988, appellant entered a plea of guilty to one count each of theft by deception, criminal conspiracy, forgery, tampering with records or identification, theft by unlawful taking or disposition, and unlawful use of a computer. In exchange for this plea, the Commonwealth agreed to recommend that all sentences imposed be served concurrently. Sentencing was deferred to allow for the completion of a county pre-sentence investigation. On December 13, 1988, appellant appeared for sentencing. After hearing testimony from appellant himself and numerous character witnesses on appellant’s behalf, as well as arguments from counsel, the court sentenced appellant to maximum concurrent five-to-ten-year terms of incarceration for conspiracy and forgery, and lesser concurrent terms of imprisonment for theft by deception (two-to-four-years), and unlawful use of a computer (one-to-two-years). Appellant filed a timely motion to modify sentence, which was denied, and this appeal followed.

Appellant’s sole contention on appeal concerns discretionary aspects of sentencing. Although appellant raises a number of arguments in this regard, we need consider only his claim concerning the court’s deviation from the sentencing guidelines. Specifically, appellant maintains that the statutory maximum sentences imposed for forgery and criminal conspiracy were an abuse of discretion because they exceeded the sentencing guidelines, and the court did not provide a contemporaneous statement of the reasons for that deviation. After considering relevant statutory and case law, we must agree.

The Sentencing Code, 42 Pa.C.S.A. § 9701 et seq., provides in relevant part:

The court shall also consider any guidelines for sentencing adopted by the Pennsylvania Commission on Sentencing____ In every case where the court imposes a sentence outside the sentencing guidelines adopted by the Pennsylvania Commission on Sentencing ... the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines. Failure to comply shall be grounds for vacating the sentence and resentencing the defendant.

Id. § 9721(b). A sentencing court, of course, is not required to adopt the recommendations in the guidelines; however, the legislature has mandated that, at the least, a court consider them. See Commonwealth v. Chesson, 353 Pa.Super. 255, 258, 509 A.2d 875, 877 (1986); see also Commonwealth v. Sessoms, 516 Pa. 365, 376-77, 532 A.2d 775, 780-81 (1987). Thus, in Commonwealth v. Royer, 328 Pa.Super. 60, 476 A.2d 453 (1984), this Court considered the § 9721(b) mandate and held that:

Where the trial court deviates from the sentencing guidelines ... he must set forth on the record, at sentencing, in the defendant’s presence, the permissible range of sentences under the guidelines and, at least in summary form, the factual basis and specific reasons which compelled the court to deviate from the sentencing range. The Act states that failure to provide an appropriate contemporaneous written statement shall be grounds for vacating the sentence and resentencing the defendant.

Id., 328 Pa.Superior Ct. at 70-71, 476 A.2d at 458. The rationale for requiring an articulation of reasons was further elucidated in Commonwealth v. Chesson, supra:

The court’s statement of reasons for deviating from the guidelines serves not only as a record of the court’s rationale for the deviation but also as evidence that the court considered the guidelines. We cannot analyze whether there are adequate reasons for the deviation unless it is first apparent that the court was aware of, and considered, the guidelines.

353 Pa.Super. at 257, 509 A.2d at 876. The approach in Royer and Chesson later was approved and followed by an en banc panel of this Court in Commonwealth v. Sanchez, 372 Pa.Super. 369, 539 A.2d 840 (1988), aff'd 522 Pa. 153, 560 A.2d 148 (1989).

The offenses in this case occurred on April 28, 1988; thus, the new Sentencing Guidelines, which were adopted by the Commission on Sentencing on February 22, 1988 and which govern offenses committed on or after April 25, 1988, were applicable. The Commonwealth does not dispute that the sentences imposed on appellant deviated substantially from these guidelines. Under the guidelines, the conspiracy and forgery charges at issue each are assigned an offense gravity score of five (5), and appellant had a prior record score of zero (0). See 204 Pa.Code § 303.8(d). These scores result in the following suggested minimum sentencing ranges:

Standard Range 0-12 months

Aggravated Range 12-18 months

Mitigated Range non-confinement

The actual minimum sentences imposed (sixty months) therefore were three-and-one-third times as long as the maximum minimum sentence suggested in the aggravated range of the guidelines.

At the sentencing hearing, the Commonwealth argued that aggravating factors existed which would justify the court in deviating from the guidelines and imposing a minimum sentence greater than eighteen months. See N.T. December 13, 1988 at 46-51. Despite the fact that the Commonwealth specifically made this argument, however, the court neither advised appellant of the applicable guideline ranges, nor stated its reasons for deviating from those guidelines. Accordingly, we must vacate the sentences imposed for forgery and criminal conspiracy, and remand for resentencing on those counts. See 42 Pa.C.S.A. § 9721(b); Commonwealth v. Sanchez, supra; Commonwealth v. Royer, supra. We should add, of course, that our conclusion regarding the sentences imposed for forgery and criminal conspiracy in no way affects the sentences imposed for theft by deception and unlawful use of a computer.

For the foregoing reasons, we affirm the judgment of sentence for theft by deception and unlawful use of a computer; we vacate the judgment of sentence for forgery and conspiracy; and we remand the case for resentencing on the latter counts.

Judgment of sentence for theft by deception and unlawful use of a computer affirmed; judgment of sentence on remaining counts vacated and case remanded for resentencing. Jurisdiction is relinquished.

ROWLEY, J., files a concurring statement.

ROWLEY, Judge,

concurring:

I join in all of the majority’s opinion and disposition with the exception of footnote 8. Because the judgment of sentence is being vacated and the case is being remanded for resentencing under Sanchez and Royer, I find it unnecessary at this time to review any of the reasons provided by the trial court for the sentence imposed.

I also write separately, because the majority does not address the initial issue of whether or not appellant has set forth a substantial question in his petition for permission to appeal from the discretionary aspects of sentence, as required by 42 Pa.C.S. § 9781(b) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). In my opinion, appellant has set forth a substantial question by asserting that the sentencing court failed to evidence any consideration of the sentencing guidelines, and failed to provide any reason for deviating from them.

Finally, I agree with the majority’s determination to vacate the judgment of sentence and remand for resentencing where, as here, not only did the sentencing court not identify the applicable guideline ranges or why the sentence deviated from them, but the Commonwealth at sentencing provided the sentencing court with incorrect information concerning the maximum recommendation under the guidelines. The Commonwealth twice stated at sentencing that the applicable maximum minimum sentence in the aggravated range under the guidelines was 36 months. The Sentencing Commission Form included in the original record, reveals that the applicable maximum minimum guideline recommendation was 18 months. In light of the disparate information provided to the sentencing court and the absence of any statement from the sentencing court indicating that he was aware of the correct guideline recommendation, it is appropriate to vacate the judgment of sentence and remand for resentencing.

      . It was determined that the charges for tampering with records and theft by unlawful taking or disposition merged for sentencing purposes.

      . We note that appellant’s brief complies with Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).

      . Appellant also argues that the sentence was an abuse of discretion because (2) the court failed to articulate sufficient reasons to explain the disparity between his sentence and the sentence imposed on his co-conspirator; and (3) the court considered “impermissible, irrelevant, and erroneous factors” in formulating the sentence.

      . We note that this claim presents a substantial question for our review. See Commonwealth v. Sanchez, 372 Pa.Super. 369, 539 A.2d 840 (1988) (en banc), aff’d 522 Pa. 153, 560 A.2d 148 (1989); see also Commonwealth v. Burdge, 386 Pa.Super. 194, 562 A.2d 864 (1989).

      . The § 9721(b) "contemporaneous written statement” requirement applicable when a sentence deviates from the guidelines is distinguishable from the general requirement in both Superior Court case law and § 9721(b) that the record contain the reasons for any sentence imposed for a felony or misdemeanor. Thus, the rationale underlying our Supreme Court’s decision in Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988), which disapproved the Superior Court case law concerning the contours of the court’s statement of reasons for a sentence imposed, is inapplicable to this case.

      . The prior sentencing guidelines, of course, were declared unconstitutional in Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987), because they had not been presented to the Governor as required by Article II, § 9 of the Pennsylvania Constitution. In this case, neither party has challenged the constitutionality of the new guidelines.

      . The two-to-four-year concurrent sentence that appellant received for theft by deception also exceeded the aggravated range suggested in guidelines; however, appellant makes no argument concerning the propriety of this sentence.

      . By remanding the case, we do not mean to suggest that we disagree with the reasons the court offered in support of the sentence imposed. See Commonwealth v. Chesson, supra 353 Pa.Super. at 257, 509 A.2d at 876. Indeed, a review of the sentencing hearing reveals, inter alia, the court's awareness of appellant’s prior good character (as attested to by his family and friends), as well as the seriousness of the crime, involving as it did a substantial property loss, and conduct which compromised the integrity of the lottery system. See N.T. December 13, 1988 at 51-52.


author: HOFFMAN, Judge:

text:
    572 A.2d 1287
    COMMONWEALTH of Pennsylvania v. Rodney Darryl HOOD, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 17, 1990.
    Filed April 10, 1990.

      James H. Rowland, Jr., Harrisburg, for appellant.
    John G. DiLeonardo, Deputy Atty. Gen., Harrisburg, for Com., appellee.
    Before ROWLEY, FORD ELLIOTT and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from a judgment of sentence imposing a fine of $250.00 on each of ten counts of violating Pennsylvania’s General Dental Law, 63 Pa.S.A. § 129(e). Appellant contends that (1) his conviction was contrary to the law and the evidence and (2) the court erred in the manner in which it instructed the jury. For the reasons that follow, we disagree and, accordingly, affirm the judgment of sentence.

Appellant was arrested and charged with ten counts of violating Pennsylvania’s General Dental Law. In particular, appellant was charged with employing as a dental hygienist a person, Arlene Ray, who was not a licensed dental hygienist. On October 6, 1988, following a jury trial, appellant was found guilty on all counts. Post-trial motions were filed and denied. Appellant was sentenced on February 14, 1988. This timely appeal followed.

Appellant first contends that the verdict was contrary to the law and unsupported by the evidence. The test for reviewing sufficiency claims is well-settled:

[wjhere a defendant challenges his conviction on appeal the test of sufficiency of evidence is whether, viewing all evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.

Commonwealth v. Jackson, 506 Pa. 469, 472-73, 485 A.2d 1102, 1103 (1984); see also Commonwealth v. Hoke, 381 Pa.Super. 70, 78-79, 552 A.2d 1099, 1103 (1989).

Appellant was convicted under the following statutory language:

It is unlawful for a person practicing dentistry to employ a person as a dental hygienist unless such person is licensed as a dental hygienist as required by this act and the rules and regulations of the board.

63 Pa.S.A. § 129(e) (emphasis added). In order to convict a person under § 129(e), the Commonwealth must prove that a person practicing dentistry employed an unlicensed person as a dental hygienist. In this case, it is undisputed that appellant is a person practicing dentistry and that Ray was not a licensed dental hygienist. Thus, this court need only consider whether the evidence was sufficient to find that appellant employed Ray as a dental hygienist.

The General Dental Law defines a dental hygienist as follows:

A “Dental Hygienist” is one who is legally licensed as such by the said dental council and examining board to perform those procedures that licensed dental hygienists are educated to perform.

63 Pa.S.A. § 121. The State Board of Dentistry, a dental council and examining board as specified in 63 Pa.S.A. § 121, has defined a dental hygienist as follows:

One who is legally licensed as such by the Board to remove tartar deposits, accretions and stains from exposed surfaces of the teeth and directly beneath the free margin of the gums and to make application of medicaments as defined and approved by the Board to the exposed surfaces of the teeth for the prevention of dental caries, ...

49 Pa.Code § 33.201 (effective May 14, 1977).

Viewed in the light most favorable to the Commonwealth, the evidence presented at trial established the following facts about the nature of Ray’s employment. Appellant hired Ray to be his dental assistant. See N.T. October 3-6, 1988 at 95. However, during the course of her employment, Ray, with appellant’s knowledge, used a cavitron to clean patients’ teeth, used a prophy cup to polish patients’ teeth after removing stains and tartar, and applied fluoride to children’s teeth. Id. at 96, 102-03. Based upon the State Board of Dentistry’s definition, it is clear that Ray performed tasks that are reserved to licensed dental hygienists. Appellant does not dispute that Ray performed these procedures; he argues, however, that he cannot be found guilty of violating the statute because he initially hired Ray as a dental assistant, not as a dental hygienist. According to appellant, the fact that Ray then performed procedures that are reserved for a dental hygienist did not alter her job description, or the nature of her employment. Appellant’s argument rests solely on a strained and hypertechnical construction of the word “employ” in § 129(e). We cannot agree with this construction.

Because the word “employ” is not defined in the statute, and it is not a technical term, it must be construed according to its common and approved usage. See 1 Pa.C.S.A. § 1921(a); see also Commonwealth v. Hill, 481 Pa. 37, 391 A.2d 1303 (1978). In determining the common usage of statutory terms, this court, in the past, has turned to standard dictionary definitions. See Commonwealth v. Roberson, 298 Pa.Super. 184, 187, 444 A.2d 722, 723 (1988) (court can use dictionary to construe undefined words in statute according to their common and approved usage). Webster’s New Collegiate Dictionary defines “employ” as “to make use of,” “to occupy (as time) advantageously,” “to use or engage the services of.” Id. at 371 (1979). In the case at bar, as our review of the evidence above shows, appellant in fact “made use of” or “engaged” an unlicensed person (Ray), who then performed services which had been reserved for licensed dental hygienists. Because appellant “used” Ray to perform procedures reserved to a dental hygienist, the evidence was sufficient to support the jury’s conclusion that appellant violated the statute. Accord Oppenheim v. Commonwealth, Dept. of State, etc., 74 Pa. Commw. 200, 459 A.2d 1308 (1983) (evidence that dental assistants performed prophylaxis sufficient to sustain suspension of dentists’ licenses for employing unlicensed dental hygienist).

Appellant’s second contention is related to the first: he argues that the court’s jury charge concerning the meaning of the word “employ” in 63 Pa.S.A. § 129(e), was erroneous. Our standard of review in determining whether a jury instruction is proper is well-settled. “A court’s charge to the jury will be upheld if it adequately and accurately reflects the law and was sufficient to guide the jury properly in its deliberations.” Commonwealth v. Person, 345 Pa.Super. 341, 345, 498 A.2d 432, 434 (1985) (citations omitted); see also Commonwealth v. Bey, 249 Pa.Super. 185, 196, 375 A.2d 1304, 1310 (1977). Moreover, in reviewing the court’s charge for error, we must read the charge as a whole: “error will not be predicated upon an isolated excerpt”; instead, “[i]t is the general effect that controls.” Commonwealth v. Wallace, 347 Pa.Super. 248, 256, 500 A.2d 816, 820 (1985) (citations omitted); see also Commonwealth v. Ohle, 503 Pa. 566, 582, 470 A.2d 61, 70 (1983) (appellate examination of jury charge must be based on examination of it as whole to determine whether it was fair or prejudicial) (citations omitted). Furthermore, “[a] trial court has broad discretion in phrasing its points for charge, and is not bound to give instructions in the form requested, particularly where that form does not reflect a correct interpretation of the law.” Commonwealth v. Ohle, supra (citations omitted); see also Commonwealth v. Melendez, 326 Pa.Super. 531, 538-39, 474 A.2d 617, 620-21 (1984) (trial court not required to accept points submitted by defendant verbatim; court free to use its own form of expression).

The trial court’s charge concerning the meaning of the word “employ” was as follows:

Now, for the purpose of the act, a dentist employs a person as a dental hygienist when he uses that person regardless of the person’s particular job title or other work assignments, when he uses that person to perform the services which only one licensed as a dental hygienist is permitted to perform. Those services would include prophylaxis procedures or removal of tartar deposits, accretion, stains from the exposed surfaces of the teeth and it would also include the application of medicaments to the exposed surfaces of the teeth, such as fluorides for the prevention of cavities. I have defined for you what is meant by the terms knowing, intentionally. I am not going to repeat those. If you are satisfied that the four elements of employing a licensed person as a dental hygienist have been proven beyond a reasonable doubt, you should find this defendant guilty. Otherwise you must find him not guilty.

N.T. October 3-6, 1988 at 260-61 (emphasis added). The court noted that its definition instruction was based on Webster’s Third New International Dictionary. See Trial Court Opinion at 2. Appellant argues that the court erred in defining the word “employ” at all because the term “is self-explanatory and needs no definition.” Appellant’s Brief at 14. In addition, appellant argues that the charge given was erroneous because “ ‘employ’ as used in 63 P.S. § 129(e) cannot be read expansively to include the use of the person to perform services which can only be performed by a dental hygienist, but must be defined narrowly to mean employ in the sense of ‘hire.’ ” Id. at 14-15.

Appellant’s claim that the court erred in defining “employ” at all clearly is meritless. As we have noted above, non-technical terms, which are not defined in a statute, must be given their common and approved usage, 1 Pa.C. S.A. § 1921(a), and this court has approved of courts using a dictionary to construe undefined words. See Commonwealth v. Roberson, supra. Appellant’s claim that the court was required to define the term as narrowly as possible also is meritless. As our Supreme Court noted in Commonwealth v. Wooten, 519 Pa. 45, 545 A.2d 876 (1988), “strict construction of penal statutes is required, however, courts are not required to give words of a criminal statute their narrowest meaning or disregard legislative intent.” Id., 519 Pa. at 53, 545 A.2d at 880. The charge as phrased clearly was an adequate and fair summary of the common and approved usage of the word “employ.” In summary, we are satisfied that the court’s charge adequately conveyed to the jury the proper legal principles governing violations of the statute, and was sufficient to properly guide the jury in its deliberations. Accordingly, appellant’s jury instruction claim is meritless.

For the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . Appellant was also charged with 38 counts of violating the Medicaid Fraud and Abuse Act, 62 Pa.S.A. § 1407. The jury acquitted appellant of these charges.


author: OLSZEWSKI, Judge:

text:
    572 A.2d 1290
    Edward T. CUSTREN, Appellant, v. Dewey Lee CURTIS, Appellee.
    Superior Court of Pennsylvania.
    Argued March 20, 1990.
    Filed April 17, 1990.

      Francis X. Dochney, Philadelphia, for appellant.
    Ernest Iannelli, Philadelphia, for appellee.
    Before OLSZEWSKI, JOHNSON and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

Edward Custren appeals the trial court’s order dismissing his complaint upon appellee’s preliminary objections. The trial court dismissed the action because the named defendant was dead at the time the action was brought. Appellant argues the trial court erred in dismissing the action because the appellee waived the defect in the complaint. We find that such a defect cannot be waived; consequently, we affirm.

This action arose from an incident on July 29, 1985. Appellant, a mailman, was delivering mail to appellee when he fell and injured himself. Appellant’s attorney engaged in extensive settlement negotiations with appellee’s insurance company.

In July 1987, shortly before the statute of limitations ran, appellant filed this action to preserve his legal rights while he continued settlement negotiations. The named defendant, Dewey Lee Curtis, had died in February 1986. Appellant claims that he was unaware of appellee’s death. He asserts that the insurance company’s claim representative concealed defendant’s death by telling him that the defendant could be served at his home.

On August 13, 1987, appellant’s attorney received the Sheriff’s return of service, which indicated that appellee had been dead for over a year. Appellant took no steps to correct the complaint in this action; instead, he relied on an insurance company employee’s oral assertion that the company would allow him to file and serve an amended pleading. No such amended pleading was ever filed or served.

In June 1989, appellee filed preliminary objections, arguing that the complaint was never served and that the suit was a nullity because it was filed against a dead person. The trial court agreed and dismissed the complaint. This appeal followed.

Appellant argues that the insurance company concealed the fact of appellee’s death; therefore, appellee has waived any procedural defects. We can find no authority to support his proposition. “A dead man cannot be a party to an action, and any such attempted proceeding against him is completely void and of no effect.” Thompson v. Peck, 320 Pa. 27, 181 A. 597 (1935), quoted with approval in Longo v. Estep, 289 Pa.Super. 19, 432 A.2d 1029, 1030 (1981). A defect of this type cannot be corrected by substituting the decedent’s personal representative because there is no “pending action.” Ehrhardt v. Costello, 437 Pa. 556, 264 A.2d 620 (1970). The only recourse in this situation is filing a new action against the decedent’s estate or personal representative. Valentin v. Cartegena, 375 Pa.Super. 493, 544 A.2d 1028 (1988). If a new action had been filed, the insurance company’s fraud or concealment might have es-topped it from raising the statute of limitations as a defense. See, e.g., Zarlinsky v. Laudenslager, 402 Pa. 290, 167 A.2d 317 (1961), cited by appellant. Appellant has not filed a new complaint. No authority supports the proposition that a party may “waive” voidness of an action.

The remaining cases cited by appellant all involve misnomer or naming the wrong defendant. These cases are inapposite, because the underlying actions in such cases are valid. An action filed against a dead person is void and must be dismissed. Accordingly, the order of the trial court must be affirmed.

Order affirmed.


author: BROSKY, Judge.

text:
    572 A.2d 1291
    GENERAL MUNICIPAL AUTHORITY OF the BOROUGH OF HARVEY’S LAKE v. George B. YUHAS, Jr., Karin Schreyer-Yuhas, Husband and Wife, Appellants.
    Superior Court of Pennsylvania.
    Submitted Jan. 23, 1990.
    Filed April 18, 1990.

      Donald D. McFadden, Wilkes-Barre, for appellee.
    Karin Schreyer-Yuhas, pro se.
    Before GRILLO, President Judge, and WIEAND and BROSKY, JJ.
   BROSKY, Judge.

This appeal is from an order of the trial court entering judgment on three municipal sewer liens in favor of appellee, the General Municipal Authority of the Borough of Harvey’s Lake (hereinafter GMA).

Appellants, George Yuhas and Karin Schreyer-Yuhas, his wife, present the following issues for review: (1) whether the trial court erred in denying appellants’ motion for reconsideration and in concluding that the parties had not reached an agreement on a payment plan for the payment of the delinquent water and sewer rates; (2) whether the trial court erred in accepting the documentation filed by appellee regarding the amount of the charges and the properties subject to the liens despite appellants’ allegations that the documentation contained errors; and (3) whether the trial court erred in accepting appellee’s filings and methods used in obtaining the municipal lien and reducing it to judgment.

George and Karin Yuhas are the owners of several parcels of real estate located in the Borough of Harvey’s Lake, Luzerne County, Pennsylvania. GMA filed municipal liens against three of the parcels in 1985. Between 1985 and 1988 appellants contacted the borough and corresponded with the municipal authority’s solicitor in an attempt to resolve the parties’ dispute over the amount of the assessments. Appellants’ counsel submitted a proposed payment plan to GMA, which was rejected. GMA made a counter-proposal which was neither accepted nor rejected by appellants. . During this time period appellants made some payments on both the current and delinquent charges.

On September 13, 1988, a writ of scire facias was served upon appellants. Appellants responded by filing a pro se document labeled as a “motion to quash writ of scire facias”. GMA thereafter filed a reply, to which appellants filed a counter-reply and additional material. The motion to quash was denied by an order of the trial court on January 9, 1989; however, the trial court granted appellants fifteen days in which to file a proper affidavit of defense. Appellants filed a document labeled “motion to strike writ of scire facias”. After the expiration of the fifteen-day period, GMA filed a motion for entry of judgment for want of an affidavit of defense, which was granted on June 9, 1989. In its opinion, the trial court elected to treat the “motion to strike writ of scire facias” as an affidavit of defense, and concluded that the “affidavit” was indefinite, equivocal, vague, and evasive and contained unsupported conclusions and opinions. The trial court subsequently entered judgment in GMA’s favor. Appellants requested that the court reconsider its order. The motion for reconsideration was denied on June 28, 1989 and this appeal was timely filed on the same date. For the reasons set forth below, we affirm the decision of the trial court.

We initially observe that the Commonwealth Court has exclusive appellate jurisdiction over the matters raised in this appeal. See 42 Pa.C.S.A. § 762(a)(4). Because neither party has objected to the assumption of appellate jurisdiction by this court, see Pa.R.A.P. 741(a), we exercise our discretion and decline to transfer the case to the Commonwealth Court. See Pa.R.A.P. 752(a).

Appellants emphasize in their brief and in the other documents filed with the court below that they are unlearned in the law and therefore cannot properly defend themselves in this action. While we are cognizant of the fact that appellants are representing themselves in this action,

we note that appellants] [are] ... not entitled to any particular advantage because [t]he[y] lack legal training____ As our supreme court has explained, ‘any layperson choosing to represent [him or] [her] [self] in a legal proceeding must, to some reasonable extent, assume the risk that [his or] [her] lack of expertise will prove [his or] [her] undoing.’ Vann v. Commonwealth, Unemployment Compensation Board of Review, 508 Pa. 189, 148, 494 A.2d 1081, 1086 (1985).

O’Neill v. Checker Motors Corp., 389 Pa.Super. 430, 434, 567 A.2d 680, 682 (1989). With this principle in mind, we address the issues raised by appellant.

The first issue presented concerns the denial of appellants’ motion for reconsideration. An examination of this issue necessarily requires us to review the trial court’s entry of judgment. This action is controlled by 53 Pa.S.A. § 7271 which provides:

If no affidavit of defense be filed within the time designated, judgment may be entered ... for want thereof____ If an affidavit of defense be filed, a rule may be taken for judgment for want of sufficient affidavit of defense____

In this case, the trial court considered the “motion to strike” as an affidavit of defense. Therefore, we must consider whether the affidavit was sufficient to preclude the entry of judgment.

In analyzing the sufficiency of the affidavit of defense, we note that appellants acknowledge that they are required to pay the sewer charges. Thus, the only dispute in this case involves the amount of the charges owed to GMA and the manner in which payment is to be made. GMA set forth a complete itemization of the charges owed by appellants for each of the three properties liened. See Reply to Motion to Quash, Exhibits P-5 through P-7. As a result, the burden shifted to appellants’ to establish how these charges were inaccurate or otherwise defective. Although appellants have filed numerous copies of documents and other correspondence, none of the material supplied indicates how the specific charges are inaccurate. Instead, appellants merely point to copies of prior bills, which list various amounts of interest and penalties as evidence that the amounts are incorrect. These documents do not satisfy the requirement that the affidavit be “certain and definite.” Borough of Fairview v. Arendash, 70 Pa.Commw. 636, 639 n. 3, 453 A.2d 728, 729-730 n. 3 (1982). Consequently, the trial court correctly found the affidavit to be insufficient.

Appellants also claim that the trial court erred in its determination that no agreement existed between the parties. Appellants’ allegations with regard to the contract are unsupported by the record. While it is true that appellants’ submitted a proposed payment plan to GMA, this proposal was rejected and a counter-proposal was forwarded to appellants. There is no evidence which indicates that the counter-proposal was accepted or rejected by appellants, nor does the mutual conduct of the parties support a finding that any other payment plan had been agreed upon. Thus, the trial court did not err in concluding that there was no contract of any kind between the parties.

Appellants next contend that it was error for the trial court to rely on the documentation supplied by appellee. If appellants had been able to successfully establish that the charges were in error, then we might have agreed with appellant. However, there was no evidence presented by appellants indicating that the amounts were inaccurate, and therefore we deem this issue to be without merit.

As to the final issue raised by appellants, we likewise find it to be lacking in merit. The General Municipal Law, 53 Pa.S.A. §§ 7101-7293, specifically authorizes the entry of a lien on property for non-payment of fees or assessments. In addition, the liens may include any penalties, interest and other costs. Therefore, GMA was merely exercising its legal rights in filing the above liens and motion for entry of judgment and we can discern no impropriety in the methods used by GMA to enforce its rights. In answer to the question posed by appellants in their brief, it is perfectly legal for a municipality to file liens and enter judgments on real property and have the property sold, where property owners willfully refuse to pay for the sewage and water services which they have received.

While we sympathize with appellants’ misfortunes, this court is not free to disregard the law. Accordingly, the order of the trial court entering judgment must be affirmed.

Order affirmed.

      . In ruling on the sufficiency of the affidavit, we are aware that the only documents properly before the court are the writ of scire facias, the affidavit of defense, and the replies thereto. Thus, if there are omissions in the affidavit of defense, the court is not permitted to go outside the record and consider extraneous materials. See Allegheny v. McCaffrey, 131 Pa. 137, 142, 18 A. 1001, 1003 (1890), and Philadelphia v. Baker, 140 Pa. 11, 13, 21 A. 238, 239 (1891). Because the specific defects were not set forth in the affidavit itself, the materials attached to appellants' prior motion would not be considered as part of the record. However, even if we were to review the documents submitted, we are unable to discern how these support appellants' defense, as appellants have included copies of bills with varying rates of interest and penalties, and handwritten calculations which contain no explanation. Contrary to appellants' assertions, it is not the function of either the trial court or this court to create some semblance of reason or sense out of this paper morass; rather, it is appellants’ duty to present their defense in a comprehensible and organized manner. Appellants have failed to sustain their burden as they have not precisely described how the charges are deemed to be in error.


author: DEL SOLE, Judge:

text:
    573 A.2d 218
    Ronald TOMINELLO and Thelma Tominello, his wife v. T. JANEWAY, P. Laing and Shadyside Hospital, a Corporation. Appeal of T. JANEWAY.
    Superior Court of Pennsylvania.
    Argued Dec. 7, 1989.
    Filed April 9, 1990.

      Edward D. Klym, Pittsburgh, for T. Janeway, P. Laing and Shadyside Hosp.
    Daniel M. Berger, Pittsburgh, for Tominello.
    Robert B. Hoffman, Harrisburg, for Pa. Medical Society, amicus curiae.
    Before DEL SOLE, KELLY and HESTER, JJ.
   DEL SOLE, Judge:

Ronald and Thelma Tominello commenced a medical malpractice action against Dr. T. Janeway claiming that he was negligent in failing to timely diagnose and treat Mr. Tominello’s knee infection. On November 20, 1987, a jury rendered a verdict in favor of Appellees and against Appellant in the amount of $250,000.00. Delay damages in the amount of $114,041.00 were added. On April 22, 1988, following denial of post trial motions, a judgment in the amount of $361,041.00 was entered on the verdict.

A timely appeal was filed. Dr. Janeway made no application for a supersedeas, and the Tominellos did not demand payment nor did they execute on the judgment. On April 11, 1989 the Superior Court affirmed the judgment of the trial court. On April 26, 1989, the Pennsylvania Medical Society Liability Insurance Company [PMSLIC], which was Dr. Janeway’s primary liability insurance carrier at the time of the occurrence, paid the Tominello’s $100,000.00. This represents the limits of its primary coverage. On April 28, 1989, the Tominellos filed a praecipe for a writ of execution against Dr. Janeway, and on May 3, 1989, PMSLIC paid the Tominellos $76,973.80, its pro rata share of delay damages and statutory interest.

On May 4, 1989 Dr. Janeway filed a motion for a protective order and stay of execution. In this motion, Dr. Janeway claimed that the amount of the judgment still outstanding would be paid by the Medical Professional Liability Catastrophe Loss Fund [CAT Fund], which acknowledged responsibility for payment of sixty percent 60% of the delay damages, and the amount of the judgment ($150,000.00) which exceeds the ($100,000.00) coverage provided by the primary carrier, PMSLIC. He also contended that this amount would be paid by the date provided by statute, (40 P.S. § 1301.701(e)(2)), December 31, 1989, and that the Tominellos may not execute on his property before that time. The trial court, by order of May 4, 1989, denied Dr. Janeway’s motion and he filed this appeal from the trial court’s order.

The Health Care Services Malpractice Act, 40 P.S. 1301.701 provides that the CAT Fund shall pay all awards, judgments and settlements for loss or damages against a health care provider as a consequence of any claim for professional liability brought against such health care provider to the extent such health care provider’s share exceeds the basic insurance coverage in effect at the time of the occurrence. The Act further provides that all such claims shall be paid on or before December 31 following the August 31 by which they become final. 40 P.S. § 1301.701(e)(2).

Under this statutory scheme, a successful plaintiff may have to wait as long as fifteen (15) months for payment of the remainder of the judgment above that provided by the primary carrier if the final judgment on the case occurred on September 1, or may have to wait as short a time as three (3) months, if the final judgment date is August 31. In any case, plaintiffs have to await payment on the judgment, because there is a built in delay between the vesting of the right to collect from the Fund and the actual receipt of 4he payment. The question in this case, as framed by Appellant, is whether such plaintiffs may execute on the assets of the defendant in order to collect immediately, or must they wait to collect on the normal CAT Fund payment date, the last working day of the year following the August 31 after entry of the judgment.

The question, thus framed, must be resolved in favor of the Appellant. The legislative history of the Health Care Services Malpractice Act [Act], and the statement of purpose contained in the Act itself at 40 P.S. § 1301.102, supports the conclusion that the General Assembly was required to balance competing interests in order to pass an Act which would guarantee that medical malpractice insurance would continue to be available, and that sufficient numbers of health care providers would continue to practice in this Commonwealth. In return successful plaintiffs are guaranteed a recovery of up to $1.2 million. However, they are asked to delay collecting from the CAT Fund, thus enabling the Fund to carry out its record keeping functions, which are essential to its calculations of its annual liability. This in turn insures the fiscal soundness of the CAT Fund which may levy an emergency surcharge in September if it were to be exhausted by the payment of all the claims which became final by the preceding August 31. See, 40 P.S. § 1301.701(e)(3).

Further balancing of interests is apparent in the provisions of the Act which make medical malpractice insurance and participation in the excess insurance scheme through the CAT Fund mandatory for all health care providers who are licensed in this Commonwealth. In return, such providers can then expect that their medical malpractice liability will be covered up to the statutory limits.

An individual doctor’s expectation that personal assets are secure in return for paying the premiums required, (provided that liability falls within the statutory limits set by the Act), would be unfairly undermined if, because of a necessary administrative procedure, successful plaintiffs could execute on the assets of a health care provider, when plaintiffs failed to receive immediate payment of the judgment owed by the CAT Fund. In this case, the judgment entered April 22, 1988 required a payment by the Fund on December 31, 1988. We therefore hold that a successful plaintiff may not execute on the assets of a health care provider if that plaintiff is seeking to collect the remainder of the judgment for which the CAT Fund is liable before the specified time for payment has passed. See, 40 P.S. § 1301.701(e)(2).

However, the entry of a judgment on the verdict triggers the start of the waiting period for payment by the CAT Fund. In this case, the judgment entered April 22, 1988 required a payment by the fund on December 31, 1988. The taking of the appeal did not automatically eliminate the effect of the judgment nor postpone its payment. To avoid the necessity of paying a judgment while an appeal is pending requires the grant of a supersedeas. See, 42 Pa.C.S.A. 1701, Pa.R.A.P. The appeal is not an automatic supersedeas. Cf. 42 Pa.C.S.A. Rule 1731 Pa.R.A.P.

Here the plaintiffs did not seek payment until after the decision of the appellate court. In response to the plaintiffs’ demand the fund argued that payment was not due until the end of December, 1989. This is a misreading of the statute which states that “all such claims shall be paid on or before December 31st following the August 31st by which they become final.” 40 Pa.C.S.A. § 1301.701(e)(2). Finality as set forth in this section refers to when the judgment is entered and collectable. It is axiomatic that a .judgment may be executed upon entry even if appealed absent supersedeas. Therefore, for payment purposes, it is final the date it is entered.

Therefore, because the CAT Fund failed to live up to its statutory obligation to pay the Tominellos after December 31, 1988, we hold that it was perfectly proper for the Tominellos to execute on that judgment any time after December 31, 1988 to satisfy the judgment of April 22, 1988.

While we hold that execution is proper following the stated time for payment set forth in the health care services Malpractice Act, we also believe that the balance sought by the statute namely, assuring continued delivery of health care, providing a fund for payment of claims, requiring the participation of all health care providers, protecting the assets of those providers and providing payment to injured claimants, can best be achieved by restricting execution to garnishment of the fund rather than attachment of assets.

Therefore, we hold that the entry of judgment on the verdict is the final judgment contemplated by the act for determining when payment by the fund is required. During this time, no execution can issue against the health care provider for sums to be paid by the fund. Absent a supersedeas, an appeal does not postpone the requirement of payment of a judgment. Further, we hold that while execution can issue for monies due from the fund on a judgment after the statutory time for payment has passed, it shall be limited to a garnishment proceeding against the fund.

As noted earlier, this court was notified by the Tominellos’ post-argument submission that the CAT Fund paid them on December 29, 1989, but claim they are still owed interest on the amount withheld by the CAT Fund until that date. [Although it is generally true that judgment for the payment of money bears interest from “date of the verdict or award.” 42 Pa.C.S. § 8101. Sands v. Pennsylvania Insurance Guaranty Award, 283 Pa.Super. 217, 228, 423 A.2d 1224 (1980), we do not believe should reach an issue which has neither been litigated, briefed or argued.] Therefore, we remand this case to the trial court to decide whether interest is owed, by whom it is owed, and for calculation of the amount if any.

Jurisdiction is relinquished.

      . Briefs amicus curiae in support of Dr. Janeway were filed by Joseph J. Pulcini, Jr., Director of the Medical Professional Liability Catastrophe Loss Fund, The Hospital Association of Pennsylvania, and the Pennsylvania Defense Institute.

      . The parties, in post-argument submissions, notified this court that the CAT Fund had paid the Tominellos as of December 29, 1989. The question whether this appeal is now moot has been raised because if an event occurs during the pendency of an appeal which renders it impossible for the appellate court to grant relief, the appeal will be dismissed. Commonwealth v. Smith, 336 Pa.Super. 636, 640, 486 A.2d 445 (1984). However, because we believe that a question still remains whether the Tominellos are due interest on the CAT fund’s share of the payment from the time PMSLIC paid Dr. Janeway until December 29, 1989, and because this case involves issues of public importance that are capable of repetition likely to evade review if the the normal rules on mootness are applied, Commonwealth v. Joint Bargaining Committee for the Pennsylvania Social Services Union, 484 Pa. 175, 179, 398 A.2d 1001, 1003 (1979), we will reach the merits of this appeal.

      . This is assuming that no appeal has been filed and no supersedeas has been granted.


text:
    573 A.2d 222
    COMMONWEALTH of Pennsylvania v. Israel LISBOY a/k/a Israel Lisboa, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 23, 1990.
    Filed April 18, 1990.
    Petition for Allowance of Appeal Granted Aug. 20, 1990.

      John A. Ryan, Philadelphia, for appellant.
    Deborah Fleisher, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and WIEAND and BROSKY, JJ.
   BROSKY, Judge.

Israel Lisboy appeals from the judgment of sentence of the trial court following his bench trial conviction of possession of a controlled substance with intent to deliver. He was sentenced to a three-to-six year term of imprisonment and fined fifteen thousand dollars. A mandatory minimum sentence of three years and the fine were imposed because appellant was convicted of 35 P.S. § 780-113(a)(30) (possession with intent to deliver), and, since 18.77 grams of a mixture containing cocaine were involved, the mandatory minimum sentencing provisions of 18 Pa.C.S. § 7508(a)(3)(ii) were applicable. We affirm the judgment of sentence of the trial court.

Appellant owned and operated a grocery-variety store in the city of Philadelphia. At approximately 1:30 p.m. on August 30, 1988, an undercover police officer entered the store and stated that he desired to purchase cocaine from appellant. Appellant sold the officer two clear plastic packets containing a white powder later determined to contain cocaine. The officer left the store.

At approximately 2:45 p.m. on the same day, different officers possessing a search warrant entered the grocery store. When appellant observed the officers, he dropped a packet of white powder containing cocaine. A search of the premises revealed one hundred and seven more clear plastic packets of white powder containing cocaine, a .38 caliber revolver, a tin box containing $1,113.00, six packages of Manitol (a cutting agent which a seller of cocaine mixes into the controlled substance in order to expand the amount to be sold to a buyer) and drug paraphernalia. The total weight of the white powder containing cocaine seized was 18.77 grams.

Appellant claims on appeal that the trial court erred (1) in sentencing appellant pursuant to 18 Pa.C.S. § 7508 since the Commonwealth failed to produce any evidence relating to the illegal “substance”; (2) in sentencing appellant contrary to the proper interpretation of 18 Pa.C.S. § 7508; appellant’s prior counsel was ineffective in not petitioning for Reconsideration of Sentence since (3) § 7508 fails to give reasonable notice of the penalty to be applied and is vague; and (4) the provisions of § 7508 were not strictly construed by the trial court.

Appellant first claims that the trial court erred in sentencing appellant pursuant to 18 Pa.C.S. § 7508(a)(3)(ii) since the trial court classified the 18.77 grams of white powder containing cocaine as a “substance” rather than a “mixture.” Appellant further argues that the mandatory minimum sentence only applies in the instant case if the “substance” (pure cocaine) involved is at least 10 grams and less than 100 grams. Appellant contends that a “mixture” of cocaine and a non-controlled substance cannot be used to determine the weight of the “substance” for sentencing purposes under § 7508.

18 Pa.C.S. § 7508 states, in pertinent part, that:

(a) Notwithstanding any other provisions of this or any other act to the contrary, the following provisions shall apply.
(3) A person who is convicted of violating section 13(a) ... (30) of The Controlled Substance, Drug, Device and Cosmetic Act where the controlled substance is coca leaves or is any salt, compound, derivative or preparation of cocoa leaves or is any salt, compound, derivative or preparation which is chemically equivalent or identical with any of these substances or is any mixture containing any of these substances except decocainized coca leaves or extracts of coca leaves which (extracts) do not contain cocaine or ecgonine shall, upon conviction, be sentenced to a mandatory minimum term of imprisonment and a fine as set forth in this subsection; (ii) upon the first conviction when the amount of the substance involved is at least ten grams and less than 100 grams; three years in prison and a fine of $15,000____
(Emphasis added)

1 Pa.C.S. § 1903(a) states that, “Words and phrases [in statutes] shall be construed according to their common and approved usage[.]” In attempting to ascertain the meaning of a statute, we are required to consider the intent of the legislature and are permitted to examine the practical consequences of a particular interpretation. Commonwealth v. Stewart, 375 Pa.Super. 585, 544 A.2d 1384 (1988). We are to presume that the General Assembly did not intend a result that is absurd or unreasonable. Commonwealth v. Martorano, 387 Pa.Super. 151, 563 A.2d 1229 (1989). Words are to be given their obvious meaning unless a different meaning is clearly intended. Frenchak v. Sunbeam Coal Corp., 344 Pa.Super. 37, 495 A.2d 1385 (1985).

Our review of the legislative history of House Bill 668, Act 1988-31, of which § 7508 is a part, revealed that there were no remarks regarding the portions of § 7508 under consideration in the instant case. Our review of caselaw reveals that this is a case of first impression.

But we believe the language of § 7508 is clear and explicit. When the language of a statute is clear and unambiguous, the judiciary must interpret the provisions according to their plain meaning and common usage. Commonwealth v. Larkin, 518 Pa. 225, 542 A.2d 1324 (1988); Commonwealth v. Bell, 512 Pa. 334, 516 A.2d 1172 (1986). When the statute’s meaning is plain, we are not to resort to rules of statutory interpretation or look to the legislative history when doing so would alter the plain meaning of the statute. Commonwealth v. Larkin, supra.

None of the parties dispute that the white substance possessed by appellant contained cocaine. 18 Pa.C.S. § 7508(a)(3) clearly defines the controlled “substance” as coca leaves or derivatives of coca leaves which retain the cocaine or ecgonine, or “any ‘mixture’ containing any of these substances. ” The mixture in the instant case consisted of cocaine and Manitol, although we are not privy to the exact proportionate quantity of each component. Therefore, substance, as used in this statute, includes a mixture of cocaine and a matter other than cocaine. Hence, when § 7508(a)(3)(ii) refers to the weight of the substance, it is referring to the weight of the cocaine plus the matter that the cocaine is mixed with. Appellant asks us to read § 7508(a)(3)(h), which only uses the word “substance,” in a vacuum. If we were attempting to determine legislative intent, we would read the different sections of a statute together and construe them with reference to the entire statute. Commonwealth v. Klinger, 369 Pa.Super. 526, 535 A.2d 1060 (1987). As mixture is encompassed in the definition of substance in § 7508(a)(3), then the word substance in § 7508(a)(3)(h) clearly includes mixtures of cocaine and other matter. In our view, the meaning of the statute is clear and unambiguous and there is no need to resort to rules of statutory interpretation or look to the legislative history of § 7508.

The Federal Comprehensive Drug Abuse Prevention and Control Act of 1970 contains a provision that deals with the trafficking of cocaine and it is substantially similar to Pennsylvania’s statute. 21 U.S.C.A. § 841 states, in pertinent part:

(a) [I]t shall be unlawful for any person knowingly or intentionally—
(1) to ... possess with intent to ... distribute, or dispense, a controlled substance[.]
(b) Penalties. [A]ny person who violates subsection of this section shall be sentenced as follows:
(1)(A) In the case of a violation of subsection (a) of this section involving—
(ii) 5 kilograms or more of a mixture or substance containing a detectable amount of—
(I) coca leaves, ...;
(II) cocaine, its salts, ...;
(III) ecgonine, its derivatives, ...; or
(IV) any compound, mixture, or preparation which contains any quantity of any of the substance ... referred to in subclauses (I) through (III);
[S]uch person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life ... [Emphasis added].

At present, we are aware of no federal caselaw that addresses the issue in the instant case. The federal statute uses the words substance and mixture interchangeably. If cocaine is present in a mixture, the total weight of the mixture is used in a determination of whether a mandatory minimum sentence must be imposed. Any other result would be unreasonable since a seller of the mixture represents that he is offering cocaine and not a mixture containing a specified quantity of cocaine. Aside from the illegality of the cocaine, this situation is analogous to that of a bartender selling a mixed drink to a customer; the bartender represents the product as an alcoholic beverage, although the mixture contains water, flavoring, etc. in addition to the alcohol.

We find that the trial court properly sentenced appellant. The Commonwealth produced evidence of the weight of the mixture containing cocaine, and this is the proper weight to consider in a determination of whether a mandatory minimum sentence must be imposed.

Appellant’s second claim is that the trial court improperly sentenced appellant since it misconstrued the statute’s usage of the words mixture and substance. We find that this issue has been addressed in issue number one.

Appellant’s third claim is a bald allegation that his prior counsel was ineffective in not petitioning for Reconsideration of Sentence since the portion of 18 Pa.C.S. § 7508 analyzed in issue number one was so vague that it failed to give him reasonable notice of the penalty for possession of cocaine with intent to deliver.

We have already determined that the language in § 7508 was clear and explicit and, therefore, find this issue to be devoid of merit.

Appellant’s final claim is that his prior counsel was ineffective in not petitioning for Reconsideration of Sentence since the portion of § 7508 analyzed in issue number one was improperly interpreted by the trial court. This issue was previously addressed in issue number one and, therefore, we find it to be devoid of merit.

Judgment of sentence affirmed.

      . Although the Sentencing Guidelines, 204 Pa.Code Ch. 303, promulgated by the Pennsylvania Commission on Sentencing, are superseded by the mandatory minimum sentencing provisions of 18 Pa.C.S. § 7508, an examination of two sections of the guidelines may be helpful. 204 Pa.Code § 309.9(c)(1) states that, “Violations of the Controlled Substance, Drug, Device and Cosmetic Act (35 Pa. §§ 780-101 to 780-144) [appellant was convicted of 35 P.S. § 780-113(a)(30) ] are assigned guideline sentence ranges according to this subsection. (1) If any mixture or compound contains any detectable amount of a controlled substance, the entire amount of the mixture or compound shall be deemed to be composed of the controlled substance____” The Sentencing Guidelines also provide for sentencing in the aggravated range when the drug involved in a violation of the Controlled Substance ... Act is "of exceptional purity such as cocaine in ‘crack’ form[.]” 204 Pa.Code § 303.3(b)(1).


author: MONTEMURO, Judge: TAMILIA, Judge,

text:
    573 A.2d 225
    Michele FRYER, Appellant, v. ALLSTATE INSURANCE COMPANY, Harleysville Insurance Company and William Leslie, Appellees.
    Superior Court of Pennsylvania.
    Argued Jan. 10, 1990.
    Filed April 18, 1990.

      James M. Marsh, Philadelphia, for appellant.
    William H. Pugh, IV, Norristown, for appellees.
    Before DEL SOLE, MONTEMURO and TAMILIA, JJ.
   MONTEMURO, Judge:

In this appeal, the appellant, Michele Fryer, challenges the dismissal of her complaint against appellee Harleysville Insurance Company. Fryer was involved in an automobile accident on October 21, 1981. At the time of the accident, her own automobile was being serviced by Verrena BuickOlds (“Verrena”). When the accident occurred, Fryer was operating an automobile which had been loaned to her by Verrena Buick-Olds. Harleysville Insurance Company insured vehicles owned by Verrena, but the following clause was included in the insurance policy:

D. WHO IS AN INSURED.
1. For Covered Autos.
a. You are an insured for any covered auto.
b. Anyone else is an insured while using with your permission a covered auto except:
(3) Your customers, if your business is shown in ITEM ONE of the declarations as an auto dealership. However, if a customer of yours:
(a) Has no other available insurance (whether primary, excess or contingent), he or she is an insured but only up to the compulsory or financial responsibility law limits where the covered auto.is principally garaged.
(b) Has other available insurance (whether primary, excess or contingent) less than the compulsory or financial responsibility law limits where the covered auto is principally garaged, he or she is an insured only for the amount by which the compulsory or financial responsibility law limits exceed the limits of his or her other insurance.

At the time of the accident, Fryer was an insured under her father’s policy with Allstate Insurance Company. Fryer filed a complaint for declaratory judgment, contending that Harleysville is the primary insurer under the circumstances of this case. The trial court sustained Harleysville’s preliminary objections, finding that Fryer is not an insured under the terms of the Harleysville insurance policy. Following a careful review of the record before us, in light of relevant case law, we find that the trial court erred in holding that the disputed clause in the Harleysville policy is not an unenforceable “escape” clause. Accordingly, we reverse and remand this matter for further proceedings in the trial court.

An “escape” clause has been generally defined as a clause which purports to relieve the insurer of any obligation to an insured if the insured has other available insurance coverage. In Connecticut Indemnity Company v. Cordasco, 369 Pa.Super. 439, 535 A.2d 631 (1987), Juan Fuentes was operating a motor vehicle loaned to him by Gillner Motors while his own auto was being repaired at Gillner Motors. Fuentes became involved in an accident with Cordasco, and Cordasco suffered personal injuries as a result. The auto owned by Gillner Motors was insured by Connecticut Indemnity Company, and the terms of the policy covered the situation where the auto was loaned to a customer while his or her own auto was left at Gillner Motors for repair. The Connecticut Indemnity Company argued that Fuentes’ own insurer, State Farm, was the primary insurer under the circumstances. State Farm relied upon the following provision in its policy with Fuentes in contending that it was not obligated to provide any liability coverage:

3. Temporary Substitute Car, Non-Owned Car, Trailer. If a temporary substitute car, a non-owned car or a trailer designed for use with a private passenger car or utility vehicle has other vehicle liability coverage on it, then this coverage is excess. THIS COVERAGE SHALL NOT APPLY:
a. IF THE VEHICLE IS OWNED BY ANY PERSON OR ORGANIZATION IN A CAR BUSINESS; and
b. IF THE INSURED OR THE OWNER HAS OTHER LIABILITY COVERAGE WHICH APPLIES IN WHOLE OR IN PART AS PRIMARY, EXCESS OR CONTINGENT COVERAGE.

Id. at 442, 535 A.2d at 633.

This Court, in Cordasco, recognized that escape clauses are generally disfavored in the law. In concluding that the clause in the State Farm policy was an unenforceable escape clause, we noted that “[b]y its very terms, coverage would be available to Fuentes under the State Farm policy if he was not covered under the Connecticut garage policy issued to Gillner Motors.” Id. We then held that State Farm was obligated to provide excess coverage to Fuentes, because the “weight of authority instructs us to strike the escape clause or provision and enforce the polic[y] as if the escape provision did not exist.” Id.

The Cordasco decision was relied upon by Third Circuit Court of Appeals in Automobile Underwriters, Inc. v. Fireman’s Fund Insurance Companies, 874 F.2d 188 (3rd Cir.1989), in analyzing a case factually analogous to the case at bar. There, William Loving had leased a car from Ramsey-Sturman Ford, Inc. [“Ramsey”], while he left his own car at Ramsey for repairs. While operating the leased auto, Loving struck and killed a pedestrian, Eric Nelson. The Court of Appeals had to decide whether the following provision in a policy issued to Ramsey by Fireman’s Fund was an unenforceable “escape” clause:

Anyone else is an insured while using with your permission a covered auto except:
$ * ‡ * * ♦
(3) Your garage operations customers. However, if a garage customer of yours ...
(a) Has no other available insurance (whether primary, excess or contingent), he or she is an insured only up to the compulsory or financial responsibility law limits where the covered auto is principally garaged.
(b) Has other available insurance (whether primary, excess, or contingent), less than the compulsory or financial law limits where the covered auto is principally garaged, he or she is an insured only for the amount by which the compulsory or financial responsibility law limits exceeds the limits of his or her other insurance.

Id. at 189-190. The district court had determined that the provision was not an “escape” clause, but an “excess” clause and, consequently, the court had granted summary judgment in favor of Fireman’s Fund. The district court had reasoned that “(b)ecause Loving has other insurance which exceeds the statutory minimum required by Pennsylvania, Loving is not an insured under the Fireman’s Fund primary policy.” Id. at 190. The Court of Appeals reversed, striking the provision as an unenforceable escape clause which worked to relieve the insurer from any obligation to its insured if other coverage is available. In rejecting the position that the Fireman’s Fund provision could not properly be labelled as an “escape” clause, because the provision would have provided coverage where the garage customer was without minimum coverage required under the law, the Court of Appeals opined:

... No escape clause exonerates the company from liability in all situations; all such clauses by definition contemplate the possibility that no other insurance policy will provide coverage, but it is only in the event of that contingency that the insurer will be responsible.
The policy reason for nullifying escape clauses was discussed in ... where we noted that such a rule protects the interests of the insured; that companies who write insurance in the state are aware of the rule; and that applying it would promote certainty in a field of law where predictability was particularly desirable.

Id. at 193 (emphasis in original) (citation omitted).

Instantly, the Harleysville policy purports to insure customers of Verrena Buick-Olds, but only under specific circumstances. Thus, customers such as Fryer will qualify as insureds under the Harleysville policy except where they have other available insurance coverage. Fryer would be an insured under the Harleysville policy except for the fact that she was insured at the time of the accident under a policy issued to her father by Allstate Insurance Company. Under the terms of the Harleysville policy, this fact relieved it of liability to Fryer. We find that the provision at issue in the present case falls within the classic definition of an unenforceable escape clause. Whether an insurance company chooses to place such a clause in its policy’s definition provisions or in another section of the policy is a distinction without a difference. Our reading of the law convinces us that the Harleysville policy provisions must be enforced as if the escape clause did not exist.

For all of the foregoing reasons, we reverse and remand for further proceedings. Jurisdiction is relinquished.

TAMILIA, J., files a dissenting opinion.

TAMILIA, Judge,

dissenting:

I respectfully dissent to the Opinion of the majority which reverses the trial court decision and remands for further proceedings.

This is an appeal from the. March 29, 1989 Order of court sustaining appellee’s preliminary objections in the nature of a demurrer and dismissing the complaint as to appellee Harleysville Insurance Company only. Appellant was involved in an automobile accident on October 21, 1981 while driving a vehicle owned by Verrena Buick-Olds. She had borrowed the car while her car was being serviced. At the time of the collision, appellant was insured up to $100,000 under a policy issued to her father by Allstate Insurance Company. Harleysville Insurance Company had $500,000 of coverage on insured vehicles owned by Verrena, and a dispute arose over which company was the primary insurer.

Appellant filed a complaint for declaratory judgment seeking to prove Harleysville is the primary insurer and is obligated to defend her in the underlying action. Harleysville filed preliminary objections in the nature of a demurrer; the court sustained the objections and dismissed appellant’s complaint as to Harleysville only.

In Pennsylvania, the proper standards for sustaining preliminary objections in the nature of a demurrer are clear. In reviewing an Order sustaining a demurrer, the appellate court must accept as true all averments of material fact in the challenged pleading together with all inferences that can reasonably be deduced from those averments. Gentile v. West American Insurance Exchange, 367 Pa.Super. 99, 532 A.2d 472 (1987). A demurrer can be sustained only if it is certain no recovery is permitted. Douglas v. Schwenk, 330 Pa.Super. 392, 479 A.2d 608 (1984). I believe thorough examination of the pleadings coupled with a conclusive review of the pertinent provisions of the Harleysville insurance policy, applied subject to these standards, reveal appellant is not an insured under the Harleysville policy, and therefore, she should not recover against Harleysville.

The Harleysville insurance policy provides:

D. WHO IS AN INSURED.
1. For Covered Autos,
a. You are an insured for any covered auto.
b. Anyone else is an insured while using with your permission a covered auto except:
(3) Your customers, if your business is shown in ITEM ONE of the declarations as an auto dealership. However, if a customer of yours:
(a) Has no other available insurance (whether primary, excess or contingent), he or she is an insured but only up to the compulsory or financial responsibility law limits where the covered auto is principally garaged.
(b) Has other available insurance (whether primary, excess or contingent) less than the compulsory or financial responsibility law limits where the covered auto is principally garaged, he or she is an insured only for the amount by which the compulsory or financial responsibility law limits exceed the limits of his or her other insurance.

(Plaintiffs Complaint, Exhibit A, pp. 2-3.)

The interpretation of an insurance policy is a question of law properly decided by the court. Young v. Equitable Life Assurance Society of United States, 350 Pa.Super. 247, 504 A.2d 339 (1986). An insurance policy must be read in its entirety, and its words must be given their plain and proper meanings. Monti v. Rockwood Insurance Co., 303 Pa.Super. 473, 450 A.2d 24 (1982). A court may not rewrite an insurance contract, under the guise of judicial interpretation, to expand coverage beyond that provided in the policy. Guardian Life Insurance Co. of America v. Zerance, 505 Pa. 345, 479 A.2d 949 (1984).

The Harleysville policy itself defines who is an insured under the policy. A customer of Verrena’s is also an insured only if the customer does not have other available insurance or if such insurance is less than the legal requirements. Appellant admits, in her answer to Harleysville’s preliminary objections, she was a customer of Yerrena’s. In addition, appellant admits she was covered as an insured under the Allstate policy beyond state requirements, and Allstate has admitted coverage (Plaintiffs Complaint, p. 3). Hence, appellant is not an insured under the terms of the Harleysville policy.

However, appellant contends the Harleysville policy provision specifically outlining who is an insured is an invalid escape clause. An escape clause is one that purports to relieve the insurer of an obligation to the insured if other coverage is available. Connecticut Indemnity Co. v. Cordasco, 369 Pa.Super. 439, 535 A.2d 631 (1987), In my opinion, appellant mischaracterizes the “Who is an Insured” provision, which simply defines an insured under the policy, as an escape clause. Contrary to appellant’s assertion, the provision does not purport to relieve Harleysville of an obligation to her as an insured. As indicated above, I do not believe appellant is an insured under the Harleysville policy. Harleysville is, therefore, not escaping any obligation to appellant because it never had an obligation to her as she is not an insured. Moreover, appellant has mistakenly relied on Connecticut Indemnity Co. Id.; Grasberger v. Liebert & Obert, Inc., 335 Pa. 491, 6 A.2d 925 (1939) and Insurance Co. of North America v. Continental Casualty Co., 575 F.2d 1070 (3d Cir.1978), all of which involve an insurance company’s attempt to escape an obligation to its own insured. In the instant case, appellant is only an insured under the Allstate policy, and its provisions are not at issue. Unlike these cases, appellant, as an insured, is not disputing her insurer’s attempt to escape coverage but is instead trying to claim coverage under a policy whose definition of an insured does not include her. The reasoning of these cases does not extend that far.

I also find no merit to appellant’s second argument the clause violates the Pennsylvania No-Fault Insurance Act, 40 P.S. 1009.104, repealed, P.L. 26 No. 11, § 8(a), 2/12/84. The Act provides:

Security Covering a Motor Vehicle. — Every owner of a motor vehicle which is registered or which is operated in this Commonwealth by the owner or with his permission, shall continuously provide security covering such motor vehicle when such vehicle is either present or registered in the Commonwealth. Security shall be provided for the payment of basic loss benefits, and for the payment of sums up to a total limit of thirty thousand dollars ($30,-000) which the owner or any person operating the vehicle with the express or implied permission of the owner may become liable to pay as damages because of bodily injury or death arising out of any one accident (subject to a sub-limit of fifteen thousand dollars [$15,000] for damages arising out of the bodily injury or death of any one person) and for the payment of damages for injury or to destruction of property in any one accident of amounts up to a total limit of five thousand dollars ($5,000). The owner or any other person may provide security covering a motor vehicle by a contract of insurance with an insurer or by qualifying as a self-insurer or as an obligated government.

The Harleysville policy provides coverage to its insured’s vehicles in the amount of $15,000/$30,000, and as such, it conforms to the No-Fault Act. Hence, I see no valid basis for relief.

For these reasons, I agree with the trial court’s decision to sustain appellee’s preliminary objections and dismiss the complaint as to Harleysville.